text:
    18071.
    METROPOLITAN LIFE INSURANCE COMPANY v. JAMES.
    In this suit upon a policy of insurance the evidence conclusively and as as a matter of law demanded a finding in favor of the defendant’s plea of material misrepresentations inducing the contract. The verdict in favor of the plaintiff was unauthorized and the court erred in refusing a new trial.
    Life Insurance, 37 O. J. p. 464, n. 26; p. 533, n. 42; p. 637, n. 33.
    New Trial, 29 Cyc. p. 820, n. 35.
    Decided January 17, 1928.
    Complaint on life policy; from Chatham superior court—Judge Meldrim. March 3, 1927.

      William L. Clrnj, for plaintiff in error.

      Ullmer & Dowell, contra.
   Bell, J.

Mrs. Stella James brought suit against Metropolitan Life Insurance Company upon a policy of insurance issued upon the life of her husband, Benjamin A. James, in which she was named as beneficiary. The defendant defended the suit upon the grounds of fraud and material misrepresentations in the application for insurance. The verdict was in favor of the plaintiff, and the defendant excepted to the refusal of a new trial. The application was in parts A and B, and was attached to the policy as a part of the contract. In part A were the following stipulations:

“1. That the foregoing statements and answers are correct and wholly true, and, together with the answers to questions on part B hereof, they shall form the basis of the contract of insurance, if one be issued.

“2. That no agent, medical examiner, or any other person, except the officers of the company, have power on behalf of the company: (a) to make, modify, or discharge any contract of insurance; (b) to bind the company by making any promises respecting any benefits under any policy issued hereunder.

“3. That no statement made to or by, and no knowledge on the part of, any agent, medical examiner, or any other person as to any facts pertaining to the applicant shall be considered as having been made to or brought to the knowledge of the company, unless stated in either part A or B of this application.”

The policy contained the' following provision: “This policy and the application therefor constitutes the entire contract between the parties, and all statements made by the insured, in the absence of fraud, shall be deemed representations and not warranties; and no statement shall avoid the policy or be used in defense of a claim hereunder, unless it be contained in the application therefor and a copy of such application is attached to this policy when issued.”

Parts A and B of the application both purported to have been signed b,y the insured. Part B contained, among others, the following questions and answers:

“6. Present condition of health? Good.

“7. (a) When last sick? March, 1920. (b) Nature of last

sickness? Influenza, (c) How long sick? 15 days.

“9. Any physical or mental defect or infirmity? If yes, give the particulars. No.

“18. Have you been attended by a physician during the last five years? If yes, give name of complaint, dates, how long sick, and names of physicians. No.

“19. Have you had any treatment within the last five years at any dispensary, hospital, or sanatarium? If yes, give date, duration, name of ailment, and name of institution. No.”

The policy was dated March 3 and delivered March 6, and the insured died on April 16, 1926.-

The evidence on the trial established that, although the insured had answered that his last sickness was .in March, 1920, that he had not been attended by any physician during the past five years, and that he had no treatment during this period at any dispensary, hospital, or sanatarium, the truth was that within less than twelve months prior to the application he had been attended by physicians, and had spent several days in the Atlantic Coast Line Hospital at Waycross, where he was treated for high blood pressure. It appears that he was advised to go to the hospital at the particular time by one Dr. Clay, to whom he had applied for additional benefits in the nature of insurance in the relief department of the Atlantic Coast Line Bailroad Company. Dr. Clay testified in part as follows: “As a physician I have not attended Benjamin A. James within five years prior to the 24th of February, 1926. He came to me for physical examination, August 31, 1925. At that time I found him suffering with high blood pressure, the exact points I do not recall, but something over 200, and advised him that it would be impossible to accept his application for additidnal life insurance, that is, additional benefit in the Atlantic Coast Line Belief Department. I advised him that it would be necessary for him to see a physician at once and put himself under the careful attention of a doctor for some time, as his condition was rather serious. I am a physician for the Atlantic Coast Line Company. B. A. James was an employee of the Atlantic Coast Line Company. The benefit I spoke of was in' the Belief Department of the Atlantic Coast Line Bailroad Company, in which no one can be a member except employees or those who have been employees. I do not recall how much insurance he was applying for. I do not recall ever having treated B. A. James. I think he had what we call the second class, which would entitle him to $500 death benefit, and my impression is that he had come in to raise his insurance to the full amount of the fifth class, which would be $1250. I made blood-pressure test in my examination. I used that method in some cases, not in all. I recall seeing James subsequent to that time. He was working at the time I saw him, I think the 23d of September, 1925. He had been in the hospital of the Atlantic Coast Line Bailroad Company between those dates. He was anxious to go to work, and we did not want to keep him from work unnecessarily, and I gave him a permit to go back to work. August 31, 192.5, was the date T failed to pass him for additional insurance. I am the medical examiner for the Atlantic Coast Line Belief Department at this point. He came to me for his examination; that was the first examination made for the additional insurance. . . Yes, I would feel that he was a bad risk and should not be accepted for insurance so long at least as that condition existed ox possibly for several years after it had cleared up, to be sure that it would not recur. We do not know these causes always, what the cause of the high blood pressure is. If the point or focus causing that high blood pressure can be located and- eliminated, then we have some reason to anticipate an improved condition. If they can not be located, we do not.”

Dr. Williams testified: “I am a physician and have been a physician in Savannah for eighteen years. Benjamin A. James was not treated by me within five years. I examined him and advised him to be treated. It was February 20, 1926. That was when I first examined him. The date of my examination was February 20, 1926. He was complaining of headache and high blood pressure. I took Ms blood pressure on account of continued headaches. I think the blood pressure was about 210, the best I can remember; I doMt remember exactly, but over 200. For a man of his age the normal is about 135 or 140. As stated in this report of mine, the cause of his death was cerebral hemorrhage, and the contributory or second cause was hypotentia, and that produced cerebral hemorrhage-. He came to me, I guess, for treatment. I examined him and told him he had better go to the hospital. I advised him to go to the hospital at Waycross, where he could get proper treatment, and better treatment than at home. He came to me with headache. I guess he was working at that time.”

According to the evidence of Dr. McCullough, he treated the insured for twelve days in September, 1925, for arterial hypertension, and this was a contributory or secondary cause of his death in the following April, the immediate cause being cerebral hemorrhage. As shown by the other evidence, it was during this period that the insured was at the railroad hospital. The plaintiff herself testified that her husband, the insured, was at the hospital for about fifteen days, ■ under treatment for high blood pressure, and verified the fact that he went there with the expectation of so improving his condition that he might procure insurance, or additional benefits, in the railroad relief department, for which he applied to Dr. Clay. The plaintiff further testified that when the company’s agent delivered the policy she told him that she was “glad to get it, because Dr. Clay thought he [the insured] had high blood pressure.” None of the above testimony was contradicted, and there was no issue as to the credibility of any of the witnesses.

Hnder the evidence as stated, a verdict in favor of the defendant was demanded as a matter of law, and the court should have granted a new trial upon the general grounds of the motion. Counsel for the plaintiff, the defendant in error, argue that, upon an inspection of the insured’s admittedly genuine signature on part A of the application and the handwriting of the medical examiner, Dr. Eedmond, in part B, the jury were authorized to find that what purported to be the signature of the insured to part B was not in the handwriting of the insured, but was in the handwriting of Dr. Éedmond. It is thus contended that the evidence warranted the inference that the insured was not the author of the answers as set forth in part B, and that neither the defense of fraud nor of material misrepresentations, predicated upon these answers, may be said to have been sustained as a matter of law. The original policy, with the photostatic copy of the application, has, by agreement of counsel, been submitted to this court for examination by the judges upon this point. There is no contention that the insured did not sign part A of the application, and it is that part which contains the limitations upon the company’s agents, including the medical 'examiner. Part A contained also the stipulation that the answers set forth both in part A and in part B shall form the basis of the contract of insurance, if one be issued.

Where, in conformity with the requirements of section 2471 of the Civil Code (1910), the application is attached to the policy and by the terms of the contract is made a part thereof, and where the authority of the medical examiner is limited, as in the contract before us, the beneficiary, in suing upon the policy, can not impeach the application as thus integrated therein. If the application falls, so does the policy, and in founding her action upon the policy she is committed to the proposition that the answers were made by the insured as set forth in the application. This rule is not changed by the fact that the plaintiff fails to include the application in the copy of the policy attached as an exhibit to the suit. Wilkins v. National Life Ins. Co., 23 Ga. App. 191 (2, c) (97 S. E. 879); Travelers Protective Asso. v. Belote, 21 Ga. App. 610 (3) (94 S. E. 834); Puckett v. Metropolitan Life Ins. Co., 32 Ga. App. 263 (122 S. E. 791).

On all other questions this case is a counterpart of Jefferson Standard Life Insurance Co. v. Henderson, post, 704, and what we have said in that case will apply equally to this ease. The verdict in favor of the' plaintiff was unauthorized. As this ruling appears to be controlling, we omit any reference to the special grounds of the motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18079.
    Mobley v. Ellis.
    Appeal and Error, 3 O. J. p. 918, n. 23; p. 985, n. 34; 4 O. J. p. 77, n. 28; p. 606, n. 81.
    Decided January 17, 1928.
   Bell, J.

1. “Where a ease has been tried by a jury and a verdict rendered therein, and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable.” Mackin v. Blalock, 133 Ga. 550 (4) (66 S. E. 265, 134 Am. St. R. 220). “The sufficiency of the evidence to sustain a verdict will not be considered by this court upon a direct bill of exceptions. The question must be made and passed upon in the court below, by a motion for new trial.” Bacon v. Jones, 117 Ga. 497 (2) (43 S. E. 689). See also Jones v. Pitts, 98 Ga. 521 (3) (25 S. E. 573); Holsey v. Porter, 105 Ga. 837 (31 S. E. 784); Taylor v. Reese, 108 Ga. 379, 381 (33 S. E. 917); Ocean S. Co. v. Hamilton, 112 Ga. 901 (3), 905 (38 S. E. 204); English v. Hill, 116 Ga. 415 (3), 417 (42 S. E. 717); Bashinski v. State, 123 Ga. 508 (2) (41 S. E. 499); Schroeder v. Schroeder, 144 Ga. 119 (3) (86 S. E. 224); Holland v. State, 18 Ga. App. 102 (88 S. E. 908); Jones v. Richards, 23 Ga. App. 560 (99 S. E. 11); Strickland v. State, 24 Ga. App. 157 (7) (99 S. E. 890).

2. An assignment of error in a bill of exceptions that “the verdict as directed is contrary to law” is not an exception to the direction of the verdict, and raises no question as to whether the court committed error in directing the verdict. Hightower v. Hightower, 159 Ga. 769 (9) (127 S. E. 103); Gilliard v. Johnston, 161 Ga. 17 (129 S. E. 434).

3. Where, in a case tried before a jury upon issues of fact, the losing party made no motion for a new trial, but brought the case to this court by a direct bill of exceptions, and where the bill of exceptions contains no other valid assignment of error, a reversal will not be ordered merely upon exceptions to a ruling excluding testimony offered by the plaintiff in error, where it does not appear that this ruling necessarily controlled the verdict against him. Anderson v. Wyche, 126 Ga. 393 (55 S. E. 19); Cox v. Macon Railway Light Co., 126 Ga. 398 (55 S. E. 232).

4. Under the above rulings, there can be no judgment of reversal in this ease. Since there is a difference of opinion among the members of this court on the question of whether the proper practice would be to affirm the judgment or to dismiss the writ of error, and since there is no motion to dismiss, the court, in the particular instance, will affirm the judgment. The result to the parties is the same. Sanders v. State, 84 Ga. 217 (10 S. E. 629); Bacon v. Jones, supra; Central of Ga. R. Co. v. Blackman, 7 Ga. App. 766 (68 S. E. 339).

5. The rule of practice as set forth in paragraph 1 above was overlooked by this court in Smith Bros. Co. v. Charleston &c. Ry. Co., 36 Ga. App. 480 (137 S. E. 115), in which the court’s opinion was prepared by the writer of the present decision. «.

Judgment affirmed.

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

Appeal; from Floyd superior court—Judge Maddox. January 24, 1927.

M. B. Eubanlcs, for plaintiff in error.

Maddox, Matthews & Owens, contra.


text:
    18197.
    Ivins v. Louisville & Nashville Railroad Company.
    Corporations, 14a C. J. p. 780, n. 11; p- 847, n. 65; p. 848, n. 67 New. Libel and Slander, 36 C. J. p. 1192, n. 26; p. 1239, n. 1. New; 37 C. J. p. 38, n. 39 New, 45 New; p. 51, n. 6 New; p. 53, n. 63 New; p. 117, n. 53 New.
    Pleading, 31 Cyc. p. 348, n. 5.
   Bell, J.

1. Where, from the allegations in action for defamation, it is uncertain whether the words complained of were written or spoken, that is, whether the plaintiff is suing for a slander or for a libel, but it is fairly probable from all the averments that the words were written, and therefore that the plaintiff’s intention was to sue for a libel, an amendment which seeks merely to remove the ambiguity, is not objectionable as adding a new and distinct cause of action. In such a case a petition which describes the cause of action as a “slander” may be amended by substituting the word “libel.” Verdery v. Barrett, 89 Ga. 349 (15 S. E. 476); Armour v. Ross, 110 Ga. 403 (35 S. E. 787); City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); City of Albany v. Cameron & Barkley Co., 121 Ga. 794 (49 S. E. 798); A. & W. P. R. Co. v. Ga. Ry. &c. Co., 125 Ga. 798 (1, 2) (54 S. E. 753); Atkinson v. Brantley, 15 Ga. App. 129 (82 S. E. 773); Smith v. Rome, 16 Ga. App. 96 (84 S. E. 734); 25 Cyc. 248. This is not to hold that a suit for slander may be converted by amendment into a suit for libel.

2. In the petition as amended the plaintiff in several paragraphs sought a recovery for written words as libels., and in other paragraphs complained of distinct oral words as a slander. Under the decisions in this State, a corporation is not liable for a slander or oral defamation by an agent, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question. Headley v. Maxwell Motor Co., 25 Ga. App. 26 (102 S. E. 374), and cit.

3. In a suit against a corporation for an alleged slander by one of its agents, where the petition alleged that the “utterances were expressly authorized and ratified by the defendant company,” and where this averment was specially demurred to' upon the ground that it was not shown “when, where, or how” the alleged slanderous words were authorized or ratified, the demurrer was properly sustained, in the' absence of more specific allegations.

4. Averments to the effect that as a result of an alleged slander uttered by one agent of the defendant, and certain libels alleged to have been committed by another agent, the plaintiff was discharged from the defendant’s employment, and that, after knowledge of “said alleged libelous and slanderous matter,” the defendant failed to repudiate the same, and the “ dismissal of plaintiff from defendant’s service continues,” and that the defendant has refused the plaintiff’s applications for reinstatement after “knowledge of the alleged libelous and slanderous acts and words of its said servants and agents,” are insufficient to show a ratification by the defendant of the alleged slander. ■

5. But in cases of libel the rule is different, and it is not 'essential to the cause of action that express or- direct authority of , the agent to utter the libel should be shown. So, in a suit against a corporation for a libel by one of its agents, where the libelous matter is otherwise sufficiently set forth, an allegation that the libel was uttered by the agent within the scope of the company’s business and in the course of the agent’s employment is sufficient to charge the corporation. Behre v. National Cash Register Co,, 100 Ga. 213 (27 S. E. 986, 62 Am. St. R. 320); Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. R. 250); Civil Code (1910), § 4413.

6. A written statement charging another with having committed a crime is libelous per se. Atlanta News Co. v. Medlock, 123 Ga. 714 (51 S. E. 756, 3 L. R. A. (N. S.) 1139).

7. In an action for libel, that the publication was privileged is a matter for plea, and, being defensive, can be taken advantage of by demurrer only when all the facts essential to establish the defense affirmatively appear in the plaintiff’s petition. Nicholson v. Dillard, 137 Ga. 225 (4) (73 S. E. 382); Bill v. Crawford, 6 Ga. App. 145 (3) (64 S. E. 488); Adams v. Scribner, 36 Ga. App. 15 (135 S. E. 110); Brown v. McCann, 36 Ga. App. 812 (138 S. E. 247).

8. “To make the defense of privilege complete, in an action of slander or libel, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear. The absence of any one or more of these constituent elements will, as a general rule, prevent the party from relying on the privilege.” Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589 (5) (51 S. E. 646). “The protection afforded privileged communications is lost if the publication was maliciously made.” Central of Ga. Ry. Go. v. Sheftall, 118 Ga. 865 (2) (45 S. E. 687). The petition in the present case did not affirmatively and as a matter of law disclose that the alleged libelous matter was privileged.

9. It appearing from the petition that the plaintiff’s discharge from the defendant’s employment as á conductor upon its railroad did not result as a consequence of the alleged libel, but was a simultaneous wrong, both proceeding from the same cause, the plaintiff could not, in the action for libel, claim as special damage losses which he may have sustained by reason of his discharge as such employee.

10. An allegation that, on account of the publication of the libelous matter, the plaintiff’s ability to obtain employment had been seriously impaired and his ability to earn money in any employment greatly reduced, was improper as the basis for a claim of general damages (see the Sheftall case, 123 Ga. at page 598, supra), and was also subject to demurrer upon the ground that it was a general statement of a conclusion, unsupported by any sufficiently specific statement of facts.

Decided January 17, 1928.

Action of libel; from Fulton superior court—Judge Humphries. April 19, 1927.

Harwell, Favrman & Barretí, for plaintiff.

Tye, Peeples & Tye, for defendant.

11. In an action for libels alleged to have been uttered by a superintendent of the defendant railroad company “in the course of an investigation by defendant as to the conduct of plaintiff with reference to charges made against plaintiff in connection with plaintiff’s employment and as one of defendant’s conductors,” where the plaintiff claimed certain items of special damages, consisting of attorney’s fees, stenographer’s hire, the expense of stated trips, and the like, the petition .alleging that the same were incurred by the plaintiff' prior to such investigation, in an attempt to defend himself and “his good name against the charges which the defendant company had brought against the plaintiff, and also in connection with an injunction suit which the plaintiff brought in an effort to enjoin said investigation, and. . . that the said expenses were necessary and reasonable expenses and were caused by the preferring against the plaintiff by defendant company of the charges herein-before referred to,” held, that such claim of special damage was subject to special demurrer upon the ground that it was unsupported by any specific statement of facts sufficient to show why the expenses were incurred or that they were necessary, and that the allegations in reference thereto were too general and indefinite to show any cause of action in favor of the plaintiff for their recovery.

12. The court below properly struck all allegations by which the plaintiff sought to recover damages for the alleged slander. The petition, however, stated a good cause of action for the alleged libels, and it was error to sustain the general demurrers and to dismiss the petition as a whole. The judgment sustaining all the special demurrers was likewise erroneous, as some of them were without merit. These will be specified by this court in its judgment on the remittitur.

Judgment reversed.

Jmloins, P. J., and Stephens, J., concur.


text:
    18219.
    Broadwell v. Maxwell.
    Appeal and Error, 3 O. J. p. 978, n. 37; 4 O. J. p. 649, n. 35; p. 1213,. n. 83.
    Landlord and Tenant, 36 O. J. p. 613, n. 8.
    Trial, 38 Cyc. p. 1618, n. 36; p. 1703, n. 75.
   Bell, J.

1. Under the law of this case, as laid down in Broadwell v. Maxwell, 30 Ga. App. 738 (119 S. E. 344), the court erred in instructing the jury that the written contract of November 21, 1916, purporting to create the relation of landlord and tenant, should be considered according to its own specific provisions unless the defendant established a prior oral contract of the nature set up by him in his plea, and likewise convinced the jury, by evidence, that the intention of the parties in making such written agreement was to execute a contract in harmony with the previous parol contract, and not in contravention thereof. If the parol agreement • was duly established, and if in making the subsequent written agreement the opposite party was seeking to exercise an inequitable and unconscionable advantage of the defendant and to destroy the relation existing under the prior parol agreement, solely to the advantage of himself, a literal construction of the written instrument would be improper, irrespective of whether the parties mutually intended that the two agreements should be harmonious and consistent with each other.

Decided January 17, 1928.

Eviction; -from Cobb superior court—Judge John S. Wood. May 14, 1937.

2. There being no evidence whatever of any intention or desire by the parties to abrogate or rescind the oral agreement, if made, the instructions complained of in grounds 3 and 6 of the motion for a new trial were unwarranted by the evidence and erroneous.

3. For a like reason the court erred in charging the jury that no oral contract between the parties made subsequently to the sheriff’s sale would be enforceable. The defendant was not relying upon any such agreement, and no evidence of such was introduced.

4. Under the evidence, the written contract of November 2-1, 1916, could not have been the mere reduction to writing of any previous parol agreement, unless it was the one relied on by the defendant; and if this was the intention of the parties, the plaintiff was not entitled to prevail. It was therefore error to instruct the jury that if such written contract was the reduction to writing of “tjje previous parol agreement between the parties, if there was one,” the plaintiff should recover, provided there was a proper and timely demand for the premises.

5. The requested charges set out in grounds 11 and 12 of the motion for a new trial were correct and concrete statements of the law as previously enunciated in this case, and, being apt and pertinent to issues made by . the evidence, should have been given in charge, although in principle and in more general and abstract terms they may have been covered by the other instructions. Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49).

6. The letter, the admission of which is complained of in ground Í3 of the motion for a new trial, not being set forth literally or in substance, this ground of the motion is not considered.

7. Since counsel for the plaintiff in error have conceded in their brief that any excess in the sum found in favor of the plaintiff as double rent has been written off, ground 10 of the motion for a new trial, relating to this feature of the verdict, is not passed upon.

8. No other error appears.

Judgment reversed.

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

G. B. Walker, Poole & Fraser, for plaintiff in error.

<7. Z. Foster, L. M. Blavr, G. D. Anderson, contra.


author: Luke, J.

text:
    18576.
    Peck v. Harris.
    Appeal and Error, 3 C. J.. p. 901, n. 97; p. 1386, n. 56; 4 0. J. p. 91, n. 39; p. 243, n. 84 New; p. 571, n. 98.
    Decided January 12, 1928.
    Rehearing denied February 9, 1928.
    Trover; from city court of Savannah—Judge Freeman. September 28, 1927.
    Application for certiorari was made to the Supreme Court.

      W. G. Warnell, for plaintiff in error.

      Adams, Adams & Douglas, contra.
   Luke, J.

1. Where a cause involving questions both of law and. fact is adjudicated by the judge without the intervention of a jury, and the trial results in a finding in favor of the plaintiff, and the judgment of the trial court is attacked because contrary to law, the exception should specify wherein it is contrary to law. Groover v. Inman, 60 Ga. 407 (5). Where a bill of exceptions fails so to specify, the assignment of error is too general, and the bill of exceptions, if it contain no other assignment of error upon a final judgment, must be dismissed. Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 (28 S. E. 382), and cit. Under this ruling, the assignment of error upon the final judgment of the presiding judge in the instant bill of exceptions is too general.

2. There being no sufficient assignment of error upon any final judgment in the case, the exceptions pendente lite to a judgment striking certain parts of the defendant’s answer can not be considered.

Writ of error dismissed.

Broyles, O. J., and Bloodioorth, J., concur.


author: Broyles, 0. J.

text:
    17103.
    Lattimore v. Lumbermen’s Mutual Casualty Co. et al.

    Worknren’.s Compaisation Acts, .. C. J. p. 123, n. 48 New.
   Broyles, 0. J.

1. Under the decision of the Supreme Court in this case, on certiorari from this court (165 Ga. 501, 141 S. E. 195), the industrial commission had authority to reopen the case and to review and revise its award first made therein. It follows that the judgment of this court, rendered on April 14, 1926 (35 Ga. App. 250), reversing the judgment of the trial court, was error; and that judgment is hereby vacated.

2. Upon the reopening of the case and the hearing, to determine the question of the claimant’s dependency, the finding of the commissioner that she was only partially dependent on the deceased employee (her son) was authorized by some of the evidence adduced. .That finding was approved by the full commission.

Decided February 9, 1928.

Appeal; from Ware superior court—Judge Reed. September 19, 1935.

E. W. Edwards, Taylor & Spurlin, for plaintiff.

Wilson, Bennett & Pedriclc, for defendant.

3. Under the above-stated rulings, the trial court did not err in sustaining the award of the commission.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17989.
    SOUTHERN RAILWAY CO. v. FLOYD COUNTY et al.

    1. This court is without jurisdiction to entertain a bill of exceptions which fails to except to a final judgment. The mere fact that the record discloses a final judgment in favor of the defendant in error does not change the rule.
    2. Where a taxpayer, by affidavit of illegality interposed to the levy of an execution issued in. behalf of a county for taxes, challenged various items of the county tax levy, and where a demurrer by the plaintiff in fi. fa. to the affidavit was sustained in part and overruled in part, all grounds of the affidavit being stricken except one, and where on the subsequent trial of the case the jury returned a verdict in favor of the defendant in fi. fa. as to this ground, but made no finding as to the other grounds of the affidavit because they had been stricken on demurrer and were therefore not submitted as issues to the jury, such verdict was a final termination of th'e case in the- trial court, and was adverse to the defendant in fi. fa. to the extent that it made no finding as to some of the grounds of the affidavit of illegality.
    3. 'Where, after such proceedings, the taxpayer seeks to have the case reviewed by a writ of error, a bill of exceptions brought for that purpose, which contains no exception to the final verdict, and merely assigns error on the court’s ruling on the demurrer, confers no jurisdiction on the court of review, and must be dismissed.
    Appeal and Error, 4 C. J. p. 91, n. 30, 39.
    Decided October 14, 1927.
    Rehearing denied February 18, 1928.
    Affidavit of illegality of execution; from Floyd superior court— Judge Maddox. January 13, 1937.

      Maddox, Matthews & Owens, Edgcui• A. Neely, for plaintiff in error.

      Graham Wright, B. A. Denny Jr.,'contra.
   Bell, J.

William' A. Wright, comptroller-general, issued a ti-fa. against the Southern Railway -Company for the sum of $2272.63, as a balance of taxes alleged to be due by this company to Floyd county for the year 1925. On a levy upon property belonging to the defendant, it filed an affidavit of illegality attacking sundry items of the county tax levy. To this affidavit of illegality the plaintiff in fi. fa. demurred both generally and specially. The court, after hearing argument, sustained the demurrer “as to all items of the illegality except the item of paragraph 11 of the levy to pay farm demonstrators, as to which item of the illegality the demurrer is overruled.” This judgment was rendered on September 28, 1926. The affiant, Southern Railway Company, excepted pendente lite to so much of this “order as sustains the demurrer to the illegality or any part thereof on any or all of the grounds of said demurrer.” These exceptions were tendered and certified on October 22, 1926. The case was submitted to a jury on January 12, 1927, and terminated in the following verdict: “We, the jury, find in favor of the within illegality as to the eleventh item of the levy to pay farm demonstrator and home demonstration agent.” Whereupon the railway company sued out a writ of error, reciting the facts stated above but assigning error only upon the judgment sustaining in part tlie demurrer to the affidavit of illegality and on the exceptions pendente lite taken thereto. There was no motion for a new trial, and the bill of exceptions contains no exception to the verdict or to any final judgment. The defendant in error lias moved to dismiss the bill of exceptions upon the ground “that there is no exception to or assignment of error upon the final judgment as rendered in said case.”

We think the motion to dismiss is well taken. It is insisted in the brief of counsel for the plaintiff in error, first, that the railway company could not have excepted to the court’s judgment on the demurrer until after the final disposition of the case in the court below, and therefore had to resort to exceptions pendente lite; and, second, that since the final verdict was in its favor, it could not move for a new trial nor properly except to such verdict in the final bill of exceptions. Assuming, without deciding, that the company could not have excepted directly to the judgment on the demurrer, we disagree with the able counsel in their contention that the defendant could not have filed a motion for a new trial and thereafter excepted to the overruling of the same, if it were overruled, and that the defendant could not have excepted to the final verdict even in the direct bill of exceptions as brought. The verdict was in favor of the illegality on one point only, the defendant, for the purposes of trial, being concluded as to other grounds by the antecedent judgment on the demurrer. The fact that the railway company won a partial victory would not prevent it from excepting to the verdict or final judgment if dissatisfied with less than a complete victory. It often happens that a plaintiff will move for a new trial or otherwise except to a verdict where the recovery is in his favor but for less than the sum sued for, and for so much less that he is dissatisfied. The railway company in this case could have excepted to the verdict upon the theory that it was a final termination of the case against the affidavit of illegality as to all grounds except one. In view of the exceptions pendente lite to the court’s ruling on the demurrer, a general exception to the final verdict would have been sufficient. Such exception was necessary to give this court jurisdiction of the ease. A writ of error can not be predicated upon exceptions pendente lite alone. We think the general rule is applicable, that, “In order to give this court jurisdiction of the case, the bill of exceptions must contain a general or a specific exception assigning error on the final judgment in the court below.” Yates v. Olivent, 28 Ga. App. 518 (111 S. E. 824); Lyndon v. Ga. Ry. & El. Co., 129 Ga. 353 (3) (58 S. E. 1047); Tinsley v. Gullet Gin Co., 21 Ga. App. 512 (94 S. E. 892).

The fact that the record may disclose a final judgment in favor of the opposite party does not change the rule. Lawrenceville Cotton Co. v. So. Ry. Co., 34 Ga. App. 333 (129 S. E. 290); Ellington v. Automobile Credit Co., 145 Ga. 53 (88 S. E. 565); Mertins v. Pritchard, 135 Ga. 643 (70 S. E. 328); Farmer v. White Sewing Machine Co., 29 Ga. App. 657 (116 S. E. 224); Anderson v. Hall, 3 Ga. App. 555 (60 S. E. 294).

Writ of error dismissed.

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


author: Jenkins, P. J.

text:
    18080.
    PAPE v. RICHARDSON.
    Under the ruling in Church v. Church, 151 Ga. 98 (106 S. E. 114), and cit., the court did ifot abuse its legal discretion in revoking its ex parte order authorizing the belated service upon the defendant, which had been passed three terms after the appearance term, no reason being shown why service could not have been perfected under the previous order therefor granted at the appearance term, and there being no showing of diligence on the part of the plaintiff in following up his effort to procure service.

      Judgment affirmed. Stephens and Bell, JJ., concur.

    Process, 32 Cyc. p. 457, n. 38.
    Decided December 15, 1927.
    Rehearing denied February 18, 1928.
    Action for malicious arrest, etc.; from Pulton superior court— Judge Pomeroy. January 13, 1927.

      W. A. James, Linton S. James, G. M. James, for plaintiff.

      Earl Sims, for defendant.
   Jenkins, P. J.

A joint action was filed against Woolford Realty Company and the defendant in error, Richardson, to the September term, 1925, of the superior court of Pulton county, it being alleged that each of the defendants resided in that county. On this suit process was issued and personal service perfected against each of the defendants. At the September appearance term Richardson appeared and filed a plea in abatement and traverse of the entry of service, setting forth that he was a resident not of Pulton county but of DeKalb county. Whereupon, at the September appearance term, on the 22d day of October, the plaintiff amended his petition by setting out that Richardson was a resident of DeKalb county, and prayed that a new process issue and that the case be made returnable to the January term, 1926. The judge signed an order that Richardson be served with a second original process directed to the sheriff of DeKalb county, and that the case be made returnable to the January term, 1926. The process prayed for was not issued or served as called for by the order, and the November, January, and March terms elapsed before any further action was taken. At the May term, 1926, the plaintiff procured from the judge an ex parte order making the July term, 1926, the appearance term, and ordering that process be issued, returnable to that term, as provided by the previous order. It thus appears that the plaintiff remained inactive from October 22,1925, until the May term, 1926, during which period three successive intervening terms of court elapsed without any action being taken on the part of the plaintiff. After the granting of the ex parte order at the May term, the defendant Richardson appeared by petition and attacked the order and the service had thereunder. A rule nisi having been issued on the defendant’s petition, a hearing was had thereon on January 13, 1927. At this hearing no showing was made by the plaintiff as to why service liad not been perfected under the terms of the original order, or as to diligence on his part in following up his efforts to procure service. Upon the hearing, the judge passed an order revoking his previous ex parte order, and dismissing the return of service had thereunder, to which order the plaintiff' excepted. The ruling of this court appears in the headnote.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18171.
    Whittle v. Citizens Bank of Ashburn.
    Appeal and Error, 4 C. J. p. 874, n. 45.
    Bills and Notes, 8 O. J. p. 488, n. 21; p. 844, n. 21; p. 989, n. 2; p. 1046, n. 99.
    Pledges, 31 Cye. p. 888, n. 15; p. 889, n. 20.
   Bell, J.

1. A transferee of a negotiable promissory note, who received the note from the payee before maturity, as collateral security for the payment of a pre-existing debt, without notice of any equities existing between the maker and the payee, is a bona fide holder for value. Civil Code (1910), § 4289; Lindenman v. Atkins, 143 Ga. 366 (2) (85 S. E. 101); Patterson v. Peterson, 15 Ga. App. 680 (2) (84 S. E. 163).

2. Where such a note is placed in suit by one as indorsee, its introduction in evidence by the plaintiff at the trial, with the payee’s blank indorsement thereon, establishes prima facie that the plaintiff acquired it for value before maturity, and without notice of any fact tending to defeat its collection. Bank of Cumming v. Bruce, 22 Ga. App. 237 (95 S. E. 759).

3. This case was before this court on a previous occasion (see Whittle v. Citizens Bank of Ashburn, 29 Ga. App. 308, 114 S. E. 920), when the judgment of the trial court directing a verdict in favor of the plaintiff was reversed. Under the, law as then laid down, now the law of the case, evidence that the note in question was seen in the hands of a third person after maturity was a sufficient circumstance, if unexplained, to carry the ease to the jury on the question of whether the holder procured the note before or after maturity. However, on the second trial the plaintiff holder came forward with evidence explaining such possession, and establishing conclusively and as a .matter of law that the third person referred to hold the note merely as agent for the plaintiff for purposes of collection. Thus the burden of proof was again cast upon the defendant, and, in the absence of further evidence, a finding was demanded in favor of the plaintiff on the question of whether it was an innocent holder. Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S. E. 435); Neill v. Hill, 32 Ga. App. 381 (2) (123 S. E. 30).

Decided January 16, 1928.

Reheabinq denied Eebkxjaby 18, 1928.

Complaint; from Upson superior court—Judge Searcy. April 30, 1927.

James R. Ramis, for plaintiff in error.

James H. Paie, W. M. Rallas, contra.

4. In a ease of this sort, where there are facts which would constitute a valid defense as against the original payee, the defendant may by appropriate plea prevent a recovery by the holder of more than the debt secured by the collateral note sued on; but the defendant has the onus not only of proving hut of pleading that the secured debt is less than the amount of the collateral, and no such plea was filed in the instant ease. Linderman v. Atkins, supra; Burgess v. Calhoun National Bank, 154 Ga. 193 (3) (113 S. E. 800).

5. Where a note held as collaterial security is placed by the holder in suit, and pending the suit the debt secured by the collateral note is paid, the holder has the legal right to continue the prosecution of the suit, taking the proceeds of the recovery, if there be any, as trustee for those who are legally or equitably entitled thereto. Houser v. Houser, 43 Ga. 415; Johnston v. Gulledge, 115 Ga. 981 (1, 3) (42 S. E. 354). Compare Brown v. West, 35 Ga. App. 444 (2) (133 S. E. 104); Callaway v. Perkins, 36 Ga. App. 798 (2) (138 S. E. 241).

6. Applying the above rulings, the verdict directed in favor of the plaintiff was demanded, even assuming that the defendant established facts which would have constituted a good defense against the original payee.

7. But assuming again that a defense against the original payee was shown, and that upon some ground the court committed error in directing the verdict in favor of the plaintiff for the full amount sued fox-, the defendant was in no view entitled to an abatement of more than $100 of the purchase-price as of the date of the note in controversy; and the plaintiff, at the hearing of the motion for new trial, having written off the judgxnent this amount with a proportionate part of interest and attorney’s fees, any possible error during the trial was cured.

8. The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    18235.
    TAUNTON v. TAYLOR.
    1. The amendment to the motion for a new trial appears to have been approved by the trial judge, and to have been served upon counsel for the plaintiff and filed by the clerk. It does not appear from the record that any question as to the sufficiency of the approval and filing of the amendment was raised before the trial judge. Accordingly, no question as to these matters can be entertained by this court. Ga. L. 1911, p. 149 (Park’s Code (1914), § 6090(a) ; Citizens Bank v. Todd, 151 Ga. 475 (107 S. E. 486); Collins v. State, 12 Ga. App. 635, 636 (77 S. E. 1079); Johnson v. Reckome, 21 Ga. App. 811 (95 S. E. 315).
    2. The court properly excluded as irrelevant and immaterial the testimony offered by the defendant to show that the deceased at the time of his death was indebted to the defendant.
    3. The evidence sought to be adduced on cross-examination by questions propounded to the plaintiff as to the disposition made of the funds paid by her into the business of her deceased husband was relevant as supporting the theory and contentions of the defendant, and should not have been excluded.
    (a) The evidence offered by the defendant for the purpose of showing his authority in carrying on the business of the decedent, and his testimony offered for the purpose of showing its status with regard to its indebtedness, was relevant as throwing light upon the reasonableness of his contention with respect to his acts and conduct in .discharging the indebtedness of the decedent’s business; and the assignments of error as to the exclusion of such evidence sufficiently show wherein the rulings complained of were harmful to the defendant.
    4 An administrator has no authority to bind the estate for borrowed money (O’Kelley v. McGinnis, 141 Ga. 379, 81 S. E. 197; Putney v. Bryan, 142 Ga. 118, 82 S. E. 519), and is individually liable on such an unauthorized obligation. Walton v. Reid, 148 Ga. 176 (96 S. E. 214). Thus it would be immaterial, so far as the liability of the defendant is concerned, whether he individually borrowed the money, as the plaintiff contends, or whether he sought to charge the estate of his intestate
    ■ therefor. In either such event he would be personally liable. The issue of fact, however, lies in whether the moneys sued for were loaned at all, or whether the plaintiff did, as the defendant contends, voluntarily turn them over as a gift for the purpose of liquidating the indebtedness of her deceased husband. This she had a legal right to do. The evidence being in conflict upon the material issue as to whether the money was paid over as a Toan or as a gift, this issue should have been submitted to the jury.
    Appeal and Error, 3 C. J. p. 874, n. 59 New.
    Evidence;'22 O. J. p. 158, n. 53; p. 159, n. 54; p. 167, n. 2. .
    Executors and Administrators, 24 C. J. p. 69, n. 44.
    Trial, 38 Cyc. p. 1537, n. 45.
    Witnesses, 40 Cyc. p. 2500, n. 93.
    Decided January 16, 1928.
    Rehearing denied February 18, 1928.
    Complaint; from Randolph superior court—Judge Yeomans. May 12, 1927.

      G. W. Worrill, A. L. Miller, M. 0. Edwards, for plaintiff in error.

      H. A. Wilkinson, Linton B. West, contra.
   Jenkins, P. J.

In a suit for money had and received, the defendant, a brother of the plaintiff, testified that he, as administrator of the estate of the plaintiff’s deceased husband,- continued the operation of the decedent’s store business, and that the moneys sued for were turned over by the plaintiff as voluntary gifts, in the form of checks made payable to the store business, for the purpose of liquidating the indebtedness owing by the business of her deceased husband. He offered in evidence an order of the ordinary, as well as an agreement signed by the heirs of the decedent, authorizing him to carry on the business of the decedent. This documentary evidence was excluded by the court, as was also testimony by which the defendant sought to show, in support of his contention, that the business of plaintiff’s deceased husband was insolvent, and that he had personally received no portion of the moneys paid in by the plaintiff for the purposes indicated. The court also excluded testimony going to show that the plaintiff’s deceased husband was indebted to the defendant at the time he became deceased. The defendant also undertook to show by the plaintiff herself that the moneys were used to liquidate the indebtedness of the decedent, but was not permitted by the court to do so, on the ground that such evidence would be immaterial and • irrelevant. The plaintiff denied that the funds supplied by her to the business of her deceased husband were intended or understood to constitute a gift for the purpose of liquidating the decedent’s liabilities, and testified that the moneys were loaned directly by her to her brother, who agreed to pay eight per cent, interest thereon. The court directed a verdict for the plaintiff in the sum of $6782.98, besides interest, this being the amount advanced by her, less certain sums shown by the evidence to have been thereafter received by her-from the business of the deceased husband. The defendant moved for a new trial on the general grounds, on the ground that the direction of a verdict was illegal, and on the ground that the court erred in excluding the evidence referred to. He excepts to the overruling of his motion for a new trial. The contention is made by the defendant in error that the amendment to the motion for a new trial presents no question for determination, for the reason that, although it appears to have been approved by the trial judge as true, it does not appear to have been allowed and ordered filed. It is further contendéd that even if the amendment could be considered, it does not contain a valid assignment of error as to the action of the court in excluding the evidence referred to. •

Our rulings appear in the headnotes.

Judgment reversed.

Stephens and Bell, JJ., concwr.

ON MOTION EOR REHEARING.

A motion for rehearing is made in this case, in which it is set forth that the evidence in the record shows that the money sued for was received by the defendant after the expiration of the calendar year in which the decedent died and in which the defendant qualified as administrator, and that the document signed by the heirs at law authorizing the continuance of the business was not legal, in that, though signed by the ‘plaintiff for herself and by three adult children, it was signed for two of the children by the plaintiff as guardian. It is further contended that the ruling in the fourth division of the decision, to the effect that the plaintiff had a legal right to give money for the purpose of paying the debts of her deceased husband, is not correct, since it appears from the testimony in the case that a portion of the money employed did not belong to the plaintiff, but belonged to the minor children for whom she was guardian. This was a suit by Mrs. Taylor in her individual capacity, against the defendant Taunton in his individual capacity, for money alleged to have been loaned by the plaintiff to the defendant. The pleadings in no wise suggest that the money was owned otherwise than by the plaintiff, nor are the rights of any other person invoked. It would not seem, therefore, that the plaintiff could base a recovery in her own behalf on showing that the title' to a portion of the funds paid over was in persons other than herself.

In respect to the rulings excluding the testimony referred to in paragraph 3 (a) of the decision, the only relevancy which this evidence could have lay in the fact that it might possibly, in the opinion of the jury, throw light upon the reasonableness or unreasonableness of the opposing contentions. The validity of the signed agreement authorizing the defendant as administrator to carry on the business of the decedent does not affect, as a matter of law, tlie ability or'inability of the defendant to borrow money for the estate, or the right of the plaintiff to give money for the purpose of paying her deceased husband’s debts; but it was thought that inasmuch as the case would have to be submitted to the jury upon the sharply contested issue of fact, as to whether the money was loaned by the plaintiff or whether it was paid over as a gift for the purpose of liquidating her deceased husband’s indebtedness, they should be permitted-to determine that question in the light of all the facts and circumstances surrounding the transaction. It was only because this court believed that the jury, in resolving the one vital issue of fact, should have the benefit of any light which all the attendant facts and circumstances might possibly throw upon the question, that it was held that this evidence should be admitted along with the direct testimony upon the vital and disputed issue in the ease. Rehearing denied.


text:
    18241.
    FIRST NATIONAL BANK OF SANDERSVILLE v. MOORE et al.

    1. Under the law of negotiable instruments as it existed prior to the passage of what is known as the uniform negotiable-instruments law, even a bona fide holder for value of a promissory note, receiving it before maturity, was not protected from the defense set up by the maker or indorser that its consideration was both immoral and illegal, and that the lender participated in the unlawful purpose and design (Civil Code of 1910, § 4286; Singleton v. Bank of Moniioello, 113 Ga. 527 (38 S. E. 947) ; Hines v. Union Bank £ Trust Oo., 120 Ga. 711 (48 S. E. 120) ; Bxohange National Bank v. Henderson, 139 Ga. 260 (77 S. E. 36, 51 L. R. A. (N. S.)u549)) ; but under the law as it now exists, and as it ' existed at the time the negotiable instrument sued on in the instant case was executed, while the title of a person who negotiates such an instrument is defective when he obtained it for an illegal consideration, a holder in due course nevertheless holds such instrument free from any defense on account of such a defect of title, and every holder is deemed prima facie to be a holder in due course; but when it is once shown that the title of any person who has negotiated the instrument was defective, the burden is thereupon shifted to the holder to prove that he or some person under whom he claims acquired the title as holder in due course,—that is, that he took it in good faith, for value, before maturity, and without notice of any infirmity in the instrument or defect in the title of the person negotiating it. Ga. L. 1924, p. 126, art. IV.
    Bills and Notes, 8 C. J. p. 767, n. 17; p. 982, n. 23; p. 983, n. 45; p. 984, n. 60; p. 987, n. 84; p. 990, n. 5; p. 1049, n. 24; p. 1073, n. 3, 4.

      2. In the instant ease there was ample evidence going to show the illegal use to which the consideration of the note sued on was subjected, and the jury were authorized to find, from the evidence, that the payee of the note, who negotiated it, was the actual lender of the money, and that he participated in the unlawful purpose and design. The burden being thus shifted to the plaintiff to prove that he held in due course, as explained above, and no proof having been offered, to carry the burden thus imposed, the jury were authorized to find in favor of the defendants upon their plea.
    3. The special assignments of error are without merit, and are dealt with in the opinion.
    Decided January 16, 1928.
    Adhered to on rehearing, February 18, 1928.
    Complaint; from city court of 'Wrightsville—Judge Blount. May 14, 1927.

    This was a suit by the First National Bank of Sandersville on a promissory note dated October 21, 1924, signed by Moore, payable to ■ C. G. Bawlings, and signed by Bawlings as indorser together with certain' other individuals as sureties, all of whom are joined as defendants in the suit. Bawlings, the payee and indorser, filed no defense; but the maker, Moore, together with the defendant sureties, interposed the defense that the note was unenforceable, because its consideration was immoral and illegal, in that the purpose of the loan as made by Bawlings to Moore was .to furnish Moore money to buy votes in an election for sheriff, in which Bawlings had induced Moore to become a candidate under the promise that he would finance his campaign for him. The case appears to have been tried in accordance with the law as it existed prior to the passage of the present uniform negotiable instruments law. The distinctive principles of the present law seem not to have been in any wise invoked or referred to. It was a disputed issue on the trial as to whether Bawlings was a party to the illegal and immoral purpose for which the funds were procured, and to which the evidence indicates, without dispute, that they were actually put. The plaintiff, on the trial, contended that the payee Bawlings was not the actual lender of the money, but that he, although the payee of the note, was in truth and in fact nothing more than a mere surety, and that the real lender of the money was the Holt Banking Company, a private institution owned by L. B. Holt, who it appears from the record was also president of the plaintiff bank. There was evidence to the effect that when Moore applied to Bawlings for the.money, and after the note had been executed, Rawlings called in bis son-in-law, Wray, and turned the note over to him; that the son-in-law went, off with it, and was gone fifteen or twenty minutes, and returned with the money which was then and there delivered to Moore. Wray was not sworn as a witness. The cashier of the plaintiff bank testified that the bank first became the owner of the note by buying it for value, and before maturity, several months after its execution, from the Holt Banking Co. The note does not indicate any indorsement from the Holt Banking Co. Holt, the owner of the Holt Banking Co., and president of the plaintiff bank, did not testify in the case. The cashier of the Holt Banking Co. testified that Holt had brought the note to the Holt Banking C6., but failed to show that the Iiolt Banking Co. had no knowledge of or interest in the illegal enterprise. A check was introduced in evidence, drawn on the Holt Banking Co., and signed by Holt, president, nine days after the date of the note, containing a memorandum in the words, “for C. H. Moore note.” No witness for the plaintiff, however, undertook to show that it bought the note without knowledge of its illegal consideration.
    The jury found in favor of the defendant, and the plaintiff excepted to the overruling of its motion for a new trial, on the general grounds as elaborated. It also excepted to the charge of the court, on the ground that it unduly emphasized the contentions of the defendant in stating the contentions of the' parties. It excepted because the court erred in charging what is contended as an inapplicable rule of law, to the effect that “any circumstance which would place a prudent man upon his guard in purchasing negotiable paper shall be sufficient to constitute notice to the purchaser of such paper before it is due.” Exception was taken also to the charge of the court instructing the jury that certain contracts based upon illegal and immoral considerations, or which are contrary to public policy, are unenforceable, upon the ground that it was inapplicable, and consisted merely of a statement of abstract principles of law, and amounted to an expression of opinion on the part of the court as to the issues and evidence involved. It was further contended that the court erred in failing to charge the jury, on its own motion, that if the Holt Banking Co. loaned the money for which the note sued on .was given, although it might have known from the character of the defendant Moore and tlie circumstances under which the money was borrowed that he expected to use it in his campaign for the purpose of influencing votes, if the Holt Banking Co. did not participate in any way in the criminal purpose and intent, and was in no way concerned in the result of the election, the note could be enforced. The court did charge the jury that “mere knowledge by. a lender of money that a borrower intends to use it for an illegal or immoral purpose will not prevent a recovery of the money loaned; and [a plea] that the lender knew or had reasonable grounds to suspect the purpose for which the money was borrowed, but which does not charge that the lender participated in the illegal transaction or did anything to further the consummation of the unlawful design, sets forth no valid defense.”

      A. L. Hatcher, for plaintiff.

      H. L. Stephens, J. L. Kent, for defendant.
   Jenkins, P. J.

As set forth in the foregoing statement of facts, the case appeals to have been dealt with by the court and all parties concerned as if the law applicable to the case was that in force prior to the passage of the uniform negotiable-instruments iaw. The special assignments of error all appear to be based upon contentions applicable to the old law. With reference to the contention of counsel for the plaintiff in error, who was the plaintiff in the court below, that the circumstances testified to in the case indicate that the payee of the note was not in fact the lender of the money, but that he was in truth a mere accommodation indorser, it is provided by the negotiable-instruments law that, while every holder is deemed prima facie to be a holder in due course, yet when it is shown that the title of any person who has negotiated the instrument was defective, the burden is then put upon the holder to prove that he, or some other person under whom he holds, acquired the instrument as holder in due course. It would thus seem that the plaintiff, under the present statute, became charged with the duty of showing that he, or some person under whom he held, was a holder in due course, upon its being shown that the payee of the note had negotiated it, whatever might have been the actual relationship existing between the payee and the borrower. But however this might be, there does not appear to be in evidence any fact or circumstance which might tend to indicate that any other person than the payee was the lender of the money. The person who it is contended the facts and circumstances indicate was the real lender did not testify in the case, although the evidence shows that he was president of the plaintiff bank. The most that the circumstances sworn to might indicate is that the money which the payee furnished upon the note was derived' by him from its discount to some other person. The charge of the court does not appear in any wise to warrant the complaint that the court was unfair or unduly emphasized the contentions of the defendant in stating the respective contentions of the parties. The exception to the excerpt in which the court stated that “any circumstance which would place a prudent man upon his guard in purchasing negotiable paper shall be sufficient to constitute notice to the purchaser of such paper before it is due” could not, even if an erroneous statement as to the law actually applicable to the ease, have been harmful to the plaintiff, since, under the rule of law set forth in the first division of the syllabus, it had become incumbent upon the plaintiff to affirmatively establish that it took the instrument without notice of the illegal consideration, or held under some one who thus took it, which proof the plaintiff wholly failed to make. It follows that, the plaintiff having thus wholly failed to carry the burden imposed upon it by law, it could not have been injured by the charge of the court, even if erroneous, dealing with circumstances which might have contradicted its testimony had any such been offered. For the same reason, the charge'of the court in giving to the jury the rule of law governing the illegality of certain contracts based upon illegal and immoral considerations could not have been injurious to the rights of the plaintiff, since the plaintiff stood in the same position as if the note had been executed to it, it having failed to put itself in'the position of a holder in due course. Nor is there any merit in the last assignment of error, excepting to the failure of the court to charge as set forth in the foregoing statement of facts, since the contention of the plaintiff with reference to this excerpt was fully and appropriately covered by other portions of the charge.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Belt,, J.

text:
    18273.
    Robertson v. Ætna Life Insurance Company et al.

    Evidence, 22 C. J. p. 676, n. 83, 86, 87.
    Expert, 25 C. J. p. 177, n. 2.
    Workmen’s Compensation Acts, .. C. J. p. 115, n. 37; p. 122, n. 40; p. 126, n. 75 New; p. 132, n. 82 New.
    Decided January 16, 1928.
    Rehearing denied February 18, 1928.
    Appeal; from Fulton superior court—Judge Moore. April 11, 1927.
    Application for certiorari was made to the Supreme Court.
   Belt,, J.

1. In this case, which arose upon an application by the insurer for an award ending compensation, on the ground of a change in the condition of the injured employee, the deputy commissioner, appointed by the commission for the purpose of taking testimony, acted beyond his authority in dismissing the case, and it was competent for the commission to treat the application as still pending and to consider the testimony taken by the ..deputy commissioner, with that subsequently introduced, in determining the final disposition to be made of the application. See Ga. L. 1920, p. 97, §§ 45, 52b.

2. “An expert is one who by habits of life and business has a peculiar skill in forming an opinion on the subject in dispute. White v. Clements, 39 Ga. 232.” Ala. &c. R. Co. v. McKenzie, 139 Ga. 410 (3) (77 S. E. 647, 45 L. R. A. (N. S.) 18). A person who is neither a physician nor a surgeon may testify to an opinion on any medical question, “when the matter inquired about lies within the domain of the profession or calling which the witness pursues.” Macon Ry. &c. Co. v. Mason, 123 Ga. 773 (5) (51 S. E. 569). One who has practiced as an x-ray specialist for fifteen years, and who has made a special study of the anatomy of the human body during that period, may testify to the making of x-ray pictures of certain bones of a particular person, and may give his opinion therefrom as to whether the bones have been injured, even though the witness is not a graduate of a medical school and has not been licensed to practice medicine. Clary v. State, 8 Ga. App. 92 (2) (68 S. E. 615); People v. Rice, 159 N. Y. 400 (3) (64 N. E. 48); State v. Cole, 94 N. C. 707, 1 Wigmore on Evidence, § 569.

3. There was some competent evidence to justify the finding by the industrial commission that the disability of the employee had ceased, and the award ending compensation was not unauthorized. See American Mutual Ins. Co. v. Hampton, 33 Ga. App. 476 (2) (127 S. E. 155).

4. Bindings of fact made by the industrial commission within its power and upon sufficient competent evidence are, in the absence of fraud, conclusive both upon the superior court and upon this court. Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75); Workmen’s Compensation Act, § 59.

5. Bor no reason pointed out did the superior court err in refusing the employee’s appeal.

Judgment affirmed.

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

G. Seals Ailcen, for plaintiff.

Bryan & Middlebroolcs, John A. Dunaway, for defendants.


text:
    18040.
    JEFFERSON STANDARD LIFE INSURANCE COMPANY v. HENDERSON.
    In this suit upon a policy of insurance the evidence conclusively established the defense of material misrepresentation inducing the issuance of the policy. The verdict in favor of the plaintiff was therefore unauthorized, being contrary to the evidence and to law, and the court erred in not granting a new trial.
    Evidence, 22 O. J. p. 474, n. 59.
    Insurance, 32 O. J. p. 1283, n. 93.
    Life Insurance, 37 O. J. p. 464, n. 25; p. 637, n. 33; p. G47, n. 23; p. 656, n. 21.
    New Trial, 29 Oye. p. 818, n. 30; p. 820, n. 35.
    Decided January 17, 1928.
    Rehearing denied February 18, 1928.
    Complaint on life policy; from Hancock superior court—Judge Park. February 23, 1927.

      Bryan & Middlebroolcs, Allen & Pottle, John A. Dunaway, for plaintiff in error.

      G. Lee Diclcens, Sibley & Sibley, contra.
   Bell, J.

Mrs. James C. Henderson brought suit against Jefferson Standard Life Insurance Company on an insurance policy issued to Paul F. Henderson, in which she was named as beneficiary. The defendant pleaded that the policy was void, both •because of fraud and because of material misrepresentations in the application. On the trial the jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial, which was refused, and the movant excepted.

It is our opinion that the evidence demanded a verdict in favor of the defendant, and therefore that the court should have granted a new trial upon the general grounds of the motion. The application, which was signed by the insured, was attached to and made a part of the policy. It contained, among others, the question, “Have you been disabled or received medical or surgical attention within the past five years ?” to which the insured answered, “No.” It also contained questions as to whether the insured had suffered from any of named diseases; to which in each case the answer was in the negative. Finally- was the question, “Have you consulted a doctor for any cause not included in the above answers?”, to which, as appears from the application, the insured was required to answer “Yes” or “No”; and if “Yes,” to give the name of ailment, disease, or injury, the number of attacks, the date, the duration, the severity, the results, and if within five years, the name and address of every physician consulted. The insured answered the question, “Yes, 1 [attack], 1918, two weeks, mild, [result] good.”

The application stipulated that every statement and representation made was material and true, and that the same was made to obtain insurance, and it was declared in the policy that the policy and the application constituted the entire contract between the parties and that “All statements made by the insured" in the application in the absence of fraud shall be deemed representations and not warranties.” The true meaning of the answer to the question last quoted was that the applicant had not consulted any physician in the last five years except in 1918, and then for influenza only. It was the equivalent of saying: “No, except for influenza in 1918.” This was the construction placed upon the answer by the trial cou-rt, and we think it the proper one.

The insured died within two weeks from the date of the application and within one week from the issuance and delivery of the policy. It appears without dispute, from the evidence, that the insured had consulted several physicians for physical complaints during the five years preceding his application, and that he was treated by at least one of them, Dr. Anderson, of Milledgeville, for syphilis, not long prior to his application, certainly within the last year. The fact of such treatment by Dr. Anderson was shown not only by tile testimony of this physician, who described the insured’s condition and the character and method of the treatment administered, but also by the evidence of Mr. C. A. Giles, an attorney at law, who testified that he occupied an office adjacent to the office of the doctor, and that on one or more occasions the treatment had been administered in the witness’s presence. Mr. Giles further testified that on one of the insured’s visits to the office of the doctor he came into the office of the witness, and, while there, spoke to the witness of the treatment he had been receiving, exhibiting “sores on his hands, simple pimples,” and “showing the improvement that had been made since Dr. Anderson had been treating him.”

There was a conflict between the testimony of Dr. Anderson and that of the plaintiff’s husband, who testified in her behalf, but this conflict was in relation only to a certain visit made by her husband to the doctor’s office and to certain statements which the doctor claims the husband then made to him. The matters about which the witnesses were thus at issue were not material and the doctor’s testimony was not otherwise contradicted. Nor is there anything in the record- to discredit or render issuable the testimony of Mr. Giles. The same is also true of the evidence of Dr. Binion, who testified that within the past three or four years the insured had consulted him professionally and that he had treated the insured for an iritis, which, the witness stated, “is in most instances caused from syphilis.” Irrespective of other evidence, it is thus conclusive that the insured misrepresented that he had not received medical attention within the past five years and that he had not within the period consulted a doctor for any cause except for influenza in 1918.

It was not necessary that the defendant should show actual moral fraud on the part of the insured. Any material misrepresentation whereby the nature, extent, or character of the risk was changed avoided the policy, whether made in good faith or fraudulently.

Whether misrepresentations are material is ordinarily a question for the jury, but where, as here, the evidence excludes every reasonable inference except that they were material, no issue is presented upon that point for determination by the jury. Such is this case. It is really controlled by the decision in the recent case of Sovereign Camp v. Parker, 36 Ga. App. 695 (138 S. E. 86), and the authorities cited therein. The decision in Interstate Life &c. Co. v. Bess, 35 Ga. App. 723 (134 S. E. 804), is inapplicable, since in that case the suit was upon a policy to which the application was not attached, and in such a case, where the suit is not on a fraternal insurance certificate, or the like, material statements or misrepresentations made by way of application will not void the policy unless they be not only false but fraudulent. A different rule obtains, however, where the application is attached to and made a part of the policy. See Empire Life Ins. Co. v. Jones, 14 Ga. App. 647 (2) (82 S. E. 62); Supreme Conclave v. Wood, 120 Ga. 328 (47 S. E. 940); Life Ins. Co. of Va. v. Pate, 23 Ga. App. 232 (3) (97 S. E. 874).

There is some suggestion in the record in regard to the character of the insured, and counsel for the defendant in error insisted in their brief that this evidence was sufficient to authorize a finding against the charge of misrepresentations. See German-American Mut. Life Asso. v. Farley, 102 Ga. 720 (5) (29 S. E. 615). Whatever might have been the effect of proper evidence of good character in this case, character evidence is limited to general character, and to the particular attribute of character involved in the case, and it is essential that the particular attribute be general in its existence and tend to manifest itself alike to all persons and in all circumstances. Josey v. State, 20 Ga. App. 85 (92 S. E. 763).

One witness testified: “As to his general attitude, he impressed me as a man who was frank, open, honest, and trustworthy.” Another witness had found the insured “a nice, gentlemanly fellow of character sufficient for [witness and his wife]' to associate with,” and was impressed that he was “a trustworthy and honest young man.” There may have been some other evidence of a similar import, but there was no such evidence of the good character of the insured as could have been considered by the jury as a rebuttal of the evidence of the false and material representations as introduced by the defendant.

Since we conclude that the verdict in favor of the plaintiff was unauthorized and should have been set aside upon the general grounds, it is unnecessary to pass upon the special grounds of the motion for a new trial.

Judgment reversed.

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


text:
    18056.
    UNITED STATES FIDELITY AND GUARANTY COMPANY et al. v. STAPLETON et al.

    1. Where a construction company, having a contract to build a public road or highway, obtained from another the use of his truck and the services of one whom he had employed to drive it, and put them at work in the hauling of materials for the construction of the highway, and where the driver, while so engaged, was subject to the direction and control of the construction company and was liable to be discharged by this company from the particular work for disobedience to orders or for misconduct, he was, while in the course of such employment, an employee of the construction company within the meaning of the workmen’s compensation act.

      Workmen’s Compensation Acts, .. C. J. p. 46, n. 31; p. 115, n. 37.

      2. In such a case, where the special employer (here the construction company) paid a sum to the original employer for the hire of the employee, and where, under all the facts, there was a sufficient basis, in wages, by which to assess the amount of compensation to be awarded, and where the company’s liability for compensation was otherwise established, it will not be relieved merely because it may neither have paid, nor have been liable to pay, wages directly to the employee.
    3. The driver of the truck having been killed in the course of his employment and because thereof, by the overturning of the vehicle while he was hauling the materials, the industrial commission was authorized, under these and the other facts appearing, to award compensation as against the construction company.
    Decided January 17, 1928.
    Reheabins denied Febeuaey 18, 1928.
    Appeal; from Richmond superior court—Judge A. L. Franklin. March 4, 1927.
    Application for certiorari was made to the Supreme Court.

      Bryan & Middlebroolcs, for plaintiffs in error.

      Peebles & Bowden, contra.
   Bell, J.

This case arose under the workmen’s compensation act, on. the claim of Mr. and Mrs. W. A. Stapleton, for compensation for the death of their son, John Stapleton, directed against Lawrence-Claussen Construction Company, alleged employer, and the United States Fidelity & Guaranty Company, insurer. From an award in favor of the claimants the opposite parties appealed to the superior court, and, the appeal being denied, they excepted. The decedent was killed on July 12, 1926, in the course of his employment and because thereof, by the overturning of a motor-truck which he was driving. The contentions of the plaintiffs in error are that the decedent was not an employee of 'the construction company, but was the servant of another as independent contractor, and also that the award was illegal because this company was not paying to the decedent wages and was not liable for the payment of the same to him. The questions for decision therefore are: 1. Was the decedent an employee of the construction company within the meaning of the compensation act? 2. Is the payment, or liability for the payment, of wages to the alleged employee by the person sought to be held an absolute prerequisite to an award of compensation against him?

The following is a resume of the evidence adduced before the industrial commission, and of facts which were either established without dispute or which could have been inferred: The construction company had a contract for the construction of a section of a highway, extending from Dean’s Bridge to Patterson’s Bridge in Eichmond county, Georgia. The cement and sand employed and used in the construction of the highway were hauled from Blythe, Georgia, to the point on the highway where the mixer was located. The construction company owned and operated several trucks and hired other trucks for the purpose of hauling the materials. One E. F. Jones, who owned a Ford truck, engaged young Stapleton, the decedent, to drive the same, and thereupon entered into a contract with the construction company to haul the materials from Blythe to the highway mixer at 25 cents per load for the first mile and 10 cents for each additional half mile traveled. The contract was not for any specified time. The truck and driver were both placed at the command of the construction company, although the expense of operating the truck and of keeping it in repair was borne by Jones. He testified that he had nothing to do with the operation of the truck, but that he turned it over to Henneyj the foreman of the construction company, and that Stapleton, the driver, was to get his orders and instructions from Iíenney and to do what Henney told him. This evidence was corroborated by that of Mr. Olaussen, a representative of the construction company, who testified that the orders given to Stapleton were the same as those given to the drivers of the company’s trucks; that the trucks were driven under loading bins and loaded with the correct amount, and that the loads were then hauled and dumped into the mixer, and that in so doing the drivers were subject to the orders of the company’s foreman. It is further evident, from Mr. Claussen’s testimony, that although he could not discharge Stapleton as the. driver of Jones’s truck, yet he could discharge him from the particular employment. Stapleton was paid by Jones the same wages that the construction compan}' paid to the drivers whom it employed directly, but received no wages immediately from the construction company. The industrial commission found that he was under the control and direction of this company, and that he was its employee within the meaning of the compensation act, and awarded compensation accordingly.

So far as material to this case, section 2 (b) of the compensation act provides:- “ ‘Employee’ shall include every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied.” Under general legal principles, it is well settled that the fact that an employee is the general servant of one employer does not prevent him from becoming the particular servant of another under special circumstances, and it is true, as a general proposition, that when one person lends or hires his servant to another for a particular employment, the servant, as to anything done in such employment, must be dealt with as the servant of the person to whom he is lent or hired, although he remains the general servant of the other person. In actions at common law, to recover damages alleged to have been caused by the servant of the defendant, the criterion by which to determine whether the relation existed as alleged is to ascertain whether, at the time of the injury, the alleged servant was subject to the defendant’s orders and control and was liable to- be discharged by him for disobedience to orders or for misconduct. Brown v. Smith, 86 Ga. 274 (12 S. E. 411, 22 Am. St. E. 456); Reaves v. Columbus Power Co., 32 Ga. App. 140, 148 (122 S. E. 824); Quinan v. Standard Fuel Co., 25 Ga. App. 47 (102 S. E. 543); Greenberg & Bond Co. v. Yarbrough, 26 Ga. App. 544 (106 S. E. 624). The same rules have been held to be applicable in determining the existence or non-existence of the relation of employer and employee in cases arising under compensation acts. U. S. Fidelity &c. Co. v. Corbett, 31 Ga. App. 7 (119 S. E. 921); Zurich &c. Ins. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173).

In Scribner’s case, 231 Mass. 132 (120 N. E. 350, 3 A. L. R. 1178), the court held that a driver who, with his team, was let by an ice company to a coal company for the delivery of coal, and who was subject to the orders of the coal company, should, in case of injury while in the yards of the coal company, look to it for compensation under the workmen’s compensation act, although he received his wages from the ice company and remained in the general employment of that company, which relied on him to look after its team. In that" ease the court said that the “weE-established principle of the common law which holds that an employee who is lent to a special employer as distinguished from liis general employer, and who assents to the change of employment, becomes the servant of the employer to whom he is lent, applies as well to cases arising under the workmen’s compensation act as to those at common law.”

In Dale v. Saunders, 218 N. Y. 59 (112 N E. 571, Ann. Cas. 1918B, 703), the New York Court of Appeals said that “Where an employer hires the services of his team and employee to another to haul sand, the employee is still working for the original employer when he is loading sand in a pit for the purpose of hauling it, and therefore is entitled to compensation from the employer but in view of the later decision by the same court in De Noyer v. Cavanaugh, 221 N. Y. 273 (116 N. E. 992), it would seem that the ruling just quoted should not be taken as excluding the right to compensation from the special employer where the employee was subject to his orders and control, within the rule above referred to. In the DeNoyer case the court said: “Even where no property of the general employer is intrusted to the employee to be used in the special employment, the general employer pays the compensation, may direct the employee when to go to work, and may discharge him for refusal to do the work of the special employer. The industrial commission, therefore, has full power to make an award against the general employer. It does not follow that by the application of this rule the special employer' is not to be held in any case. The fact that a workman has a general and a special employer is not inconsistent with the relation of employer and employee between himself and both of them. If the men are under the exclusive control of the -special employer in the performance of work which is a part of his business, they are, for the time being, his employees. Comerford’s case, 224 Mass. 571, 573 (113 N. E. 460). Thus, at one and the same time they are generally the employees of the general employer and specially the employees of the special employer. As they may, under the common law of master and servant, look to the former for their wages and to the latter for damages for negligent injuries, so under the workmen’s compensation law they may, so far as its provisions are applicable, look to the one or to the other, or to both, for compensation for injuries due to occupational hazards [citations], and the industrial commission may make such an award as the facts in the particular case may justify.”

I11 Employers Liability Assurance Corp. v. Ind. Acc. Com., 179 Cal. 432 (177 Pac. 273), the court said: “While we have heretofore held that an independent contractor is not entitled to compensation under the workmen’s compensation law, we find nothing in our decisions which would prevent our following the rule announced by the Court of Appeals of New Ybrk in the case of DeNoyer v. Cavanaugh, supra, and recognizing the fact that in some cases, where, at the time of the accident, both the general and the special employer exerted some measure of control over the injured person through their respective foremen or employees, both should be held liable,” The California court in Famous Players’ Lasky Corp. v. Ind. Acc. Com., 228 Pac. 5 (34 American L. R. 765), again had before it the question of the liability of a special employer, and in that case held that a pilot of an airplane who was hired with the plane for a day to a motion-picture producer, from whom he took all orders as to flight for the making of a. picture, was entitled to look to both employers for compensation for an injury arising out of and in the course of his employment in making the flight. In that case the motion-picture producer paid nothing as wages directly to the injured employee, who received his wages solely from his general employer.

In Ga. Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777), this court held that “Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen’s compensation act, which contemplates that compensation shall be fixed in proportion to the employee’s wages as applied to the particular injury”; and in the opinion it was said that “there must be a contract of hiring and a provision for payment for services of the employee by the employer.” But in that case the defendant railway company, which sought to establish the relation of master and servant between it and the plaintiff, and thus to relegate the plaintiff to a claim under the workmen’s compensation act, had paid nothing as wages or hire for the plaintiff’s services, either to the plaintiff or to the company from which the plaintiff’s services were obtained, and appears to have had no contract with either for the payment of the same. In the present case, while Stapleton, the employee, was originally hired by Jones, from whom he received the reward of his labor, Jones was in turn paid by the construction company. So that this case is to be distinguished from the Middlebroolcs case in that the party here sought to be held liable did pay, or was under a contract to pay, ** a consideration for the services of the employee, and, according to the finding of the industrial commission, the amount of such payment was “based upon and corresponded with the wages paid by the construction company to the drivers of its trucks,"—a finding which we think was authorized by the evidence. As was said by the commission, “Stapleton was actually £in the service’ of the construction company; his contract of hire was made in contemplation of this service, and after an understanding between Jones and the construction company and Jones and Stapleton that he was hired for the particular purpose of serving the construction company. Under the facts in this case, is it not a reasonable conr clusion that there was an implied contract of hire between the construction company and Stapleton?” We think there was such a contract, and while the statute contemplates that compensation shall ordinarily be fixed in proportion to the employee’s wages or to the diminution of his earning capacity, we are of the opinion that the wages element was not lacking in this case. In the Middle-brooks case there was no payment of wages whatever by the defendant for the services of the employee, and therefore we cannot construe the decision in that case as holding that the payment of wages directly to the employee by the party alleged to be liable is a prerequisite to an award of compensation against him. While, in the case now under consideration, the construction company neither paid nor was liable to pay wages directly to Stapleton, he received wages and the company paid wages for the particular work which he was doing. Jones was a middleman, and the company, through Jones, indirectly paid wages to Stapleton. Although the company paid Jones a gross sum for the hire of the truck and the driver, the wages which Jones paid to Stapleton were the same as were paid by the company to its other drivers, and the industrial commission was authorized to find either that this was the reasonable value of Stapleton’s services or that it was the amount actually allowed therefor by the company in the aggregate sum paid by it for the hire of both truck and driver. So, although in a case of this sort wages are necessary as a standard by which to assess the amount of compensation to be awarded, it is unnecessary to determine in the instant case whether the amount should have been fixed in proportion to the wages actually received by Stapleton from Jones, or according to the reasonable value of his services, or on the basis of the amount which the company was paying therefor. Under the peculiar facts of this case, the result could have been the same under either method, and it does not appear in the record which method the industrial commission used. Furthermore, there is no contention that the award is incorrect as to amount. It would seem that where the special employer has knowledge of the terms of the contract of hiring between the employee and his original employer, that contract, for the purpose of determining the amount of compensation, should be deemed to have been adopted by the special employer; but, as just stated, it is unnecessary to decide this question or to pass at all upon the question of what would be the proper method of determining the amount of the wages to be considered in arriving at the amount of compensation in a ease of this sort. In Tarr v. Hecla Coal Co., 265 Pa. 519 (109 Atl. 224), it was said that the fact that the employee’s “wages had not been fixed is immaterial, as the law will imply a reasonable compensation.”

In addition to the cases already cited, others may be mentioned in which compensation was awarded as against the special employer irrespective of the fact that he may not have paid wages directly to the employee. In Cayll v. Waukesha Gas Co., 172 Wis. 554 (179 N. W. 771), the court said: “Where an excavation contractor’s employee consented to be transferred to the service of a gas company laying pipe in the ditches dug by the contractor, and was injured while working for the gas company and under its sole control, the gas company, and not the contractor, was liable for compensation, he being an ‘employee’ of the gas company under an implied contract of employment within the common law rule.” In that case the gas company paid Cayll, the general employer, for the time spent on its work, and Cayll carried Massino, the injured employee, on his payroll as theretofore. The industrial commission thought the gas company was under a moral obligation to indemnify Massino, but on legal grounds felt bound to hold that the indemnity should, be paid by Cayll. The trial court held that both,legally and morally the obligation rested upon the gas company, and in this view the appellate court concurred, holding that, “While there was no express contract between Massino and the gas company, there was, within the meaning of the act, an implied contract.” See further, in this connection, Pruitt v. Ind. Acc. Com., 189 Cal. 459 (209 Pac. 31); Davis v. Industrial Com., 297 Ill. 29 (130 N. E. 333); Chisholm’s ease, 238 Mass. 412 (131 N. E. 161); Milwaukee v. Fera, 170 Wis. 348 (174 N. W. 926); Hogan’s case, 236 Mass. 241 (127 N. E. 892); Schweitzer v. Thompson &c. Co., 229 N. Y. 97 (127 N. E. 904); Arnett v. Hayes Wheel Co., 201 Mich. 67 (166 N. W. 957).

As suggested by the industrial commission, the primary object of the compensation act is to shift the burden of economic waste entailed by personal injuries in industrial operations to the industry, to be eventually borne by the consumer as a part of the necessary cost of production. The death of Stapleton resulted from the industry in which he was engaged, to wit, the highway construction work. He was running the truck for the purpose of hauling material necessary in 'the construction of the highway at the time of the fatal injury. It is conceivable that a different result would have been reached had his death been caused by some act in connection with the care of the truck, which 'was a part of his general employment and over which the construction company had no power of control. To hold that an .employee injured while under the control and direction of a special employer can not recover compensation against the special employer would unjustly deprive the injured employee or his dependents of the very benefits which the act was intended to give. One of the purposes of the law is to guard against the negligence of persons intrusted with superintendence and authority in the operation of machinery. In great .enterprises there are many instances where- workmen are supplied indirectly, as the plaintiff was here. “To hold that all such persons are outside the pale of the compensation act would be to open an avenue for the complete subversion of the act. By having their laborers employed and paid by a third party, and sent to them through such third party, employers could thus escape all liability.” See Miller v. N. Hudson Co., 152 N. Y. Supp. 22.

It follows from what has been said that the award in this case was authorized, and that the superior court properly denied the appeal of the construction company and its insurer. This conclusion has been reached by us independently of section 20 of the compensation act. While the provisions of that section do not appear to be applicable in a case like the present, they do illustrate the proposition that liability to pay wages directly to the employee is not in every case essential to liability for compensation.

We do not mean to hold that the claimant in the present case might have had an election as to whether they would proceed against either the construction company or Jones, or both, had the latter 'been subject to the workmen's compensation act. While we have cited cases from other jurisdictions to the effect that a claimant, under certain states of facts, would be entitled to such election, in the present ease it is necessary to rule only as to the liability of the construction company. Compare the Scribner and Pruitt cases, supra.

We have carefully examined all the cases cited by counsel for the plaintiffs in error and are of the opinion that they are inapplicable in the solution of the questions presented by the instant record.

Judgment affirmed.

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