text:
    17640.
    TENNEY v. THE STATE.
    A conviction of possessing intoxicating liquor was authorized by the evidence.
    Criminal Law, 7 C. J. p. 255, n. 54.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided November 9, 1926.
    Possessing liquor; from city court of Newnan — Judge Stallings. August 27, 1926.

      S. H. Dyer, for plaintiff in error.

      Stanford Arnold, solicitor, contra.
   Luke, J.

Tenney was convicted of violating the prohibition statute. The jury had a right to believe that a short distance from Tenney’s house there were concealed a great number of fruit-jars which contained “moonshine” whisky; that, leading immediately from Tenney’s backdoor to the place where' the whisky was concealed, there was a well-beaten path which had just been used by one wearing rubber boots with distinguishing foot and heel impressions; that in Tenney’s house was a pair of rubber boots that had the distinguishing marks on them which were made in the path, and had mud signs which corresponded exactly with the mud along the pathway to the concealed whisky. In addition to the circumstance of ownership there was direct evidence that Tenney had in his physical possession a fruit-jar filled with whisky.

The jury had ample evidence to convict the defendant, and for no reason pointed out did the court err in overruling his motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworih, J., absent on account of illness.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    17645.
    Woods v. The State.
    Decided November 9, 1926.
    Manslaughter; from Pulaski superior court — Judge Graham. July 19, 1926.

      Lawson & Ware, W. A. Wooten, for plaintiff in error.

      M. H. Boyer, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 255, n. 54.
   Broyles, C. J.

The verdict of voluntary manslaughter was amply authorized by the evidence, and, under all the particular facts of the case, none of the grounds of the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

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


author: Bell, J.

text:
    17162.
    FORSYTH MERCANTILE COMPANY v. WILLIAMS.
    1. “An agreement between a creditor, his debtor, and a third person, whereby such third person, in consideration of the creditor’s releasing the debtor, agrees to pay the amount of the debt to the creditor, and as part of the agreement the creditor releases his debtor and agrees that such third person shall he substituted for the debtor, is not within the statute of frauds; the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place.” Harris v. J ones, 140 Ga. 768 (1) (79 S. E. 841).

      Contracts, 13 C. J. p. 705, n. 2; p. 715, n. 90.
    Frauds, Statute of, 27 C. J. p. 154, n. -54. ■
    Novation, 29 Cyc. p. 1131, n. 14; p. 1136, n. 38; p. 1137, n. 52; p. 1138, n. 55.

      (a) On application of the above principle to the facts of this case, the petition set forth a cause of action.
    2. There is no law requiring that a promise to pay attorney’s fees shall be in writing in order to be enforceable under the Civil Code (1910), § 4252. There was no merit in the ground of the demurrer challenging the plaintiff’s right to recover of the substituted debtor attorney’s fees as stipulated in the note of the original debtor.
    Decided November 15, 1926.
    Complaint; from Monroe superior court — Judge Persons. January 6, 1926.

      Willingham & Willingham, for plaintiff in error.

      Smith & Smith, contra.
   Bell, J.

E. M. Williams brought suit against Eorsyth Mercantile Company and made the following case: In 1919, the plaintiff, Williams, sold to J. F. Fleming a tract of land, accepting Fleming’s note, due January 1, 1925, for $5,000 of the purchase-money, and executing to him a bond for title binding Williams to convey the lands to Fleming or his assigns on payment of this note and the interest thereon as evidenced by other notes due annually. The principal note contained a promise by the maker to pay ten per cent, of principal and interest as attorney’s fees, in case of default, etc. On or about January 7, 1921, Fleming transferred and assigned his rights under the bond for title to the defendant, Forsyth Mercantile Company. “At or about the time of the execution and delivery of said transfer and assignment and of the delivery of said bond for titles as last aforesaid, said defendant, Forsyth Mercantile Company, assumed said notes and undertook, agreed, and promised your petitioner to pay the same in consideration of said J. T. Fleming then and there transferring and assigning said bond for titles to said defendant, Forsyth Mercantile Company, which said J. T. Fleming .then and there did, and in consideration of your petitioner releasing said J. T. Fleming from his obligation to pay said notes, which your petitioner then and there did. The arrangement and agreements in this paragraph mentioned, whereby said J. T. Fleming was released as the debtor of your petitioner and said Forsyth Mercantile Company was substituted as the debtor of your petitioner in lieu of said J. T. Fleming, were all parts of one and the same transaction, concurred in by said J. T. Fleming, Forsyth Mercantile Company, and your petitioner.” All of the principal and a part of the interest is past due, and the defendant fails and' refuses to pay the same. Notice was given to the defendant, in terms of the statute, of the plaintiff’s intention to bring this suit and to seek judgment for the attorney’s fees “stipulated for in said note,” in addition to principal and interest. The defendant filed demurrers, which the court overruled, and the defendant excepted.'

Properly construed, the suit is founded not upon the notes executed by Fleming, but upon the substituted promise of the Mercantile Company. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (7 b) (122 S. E. 327). This promise was the cause of action, the notes being set forth merely for the purpose of giving its metes and bounds. Such promise, under the allegations, was an original and not a collateral undertaking, and was not within the statute of frauds. Harris v. Jones, supra; Foote v. Reece, 17 Ga. App. 799 (1) (88 S. E. 689); Holt v. Empire Tire Co., 33 Ga. App. 723 (127 S. E. 803); Brooks v. Key, 34 Ga. App. 387 (129 S. E. 913). In Coldwell Co. v. Cowart, 138 Ga. 233 (2) (75 S. E. 425), cited by the plaintiff in error, the obligation of the original debtor continued, while here it was extinguished. Macon Sash &c. Co. v. Gunn, 110 Ga. 401 (35 S. E. 644).

The petition in the present case, unlike that in Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (2), did not fail to show that the plaintiff was a party to the substitution agreement or that the defendant made to the plaintiff any promise to pay the debt. See, in this connection, Gafford v. Twitty, 154 Ga. 682 (1) (115 S. E. 105). The defendant’s promise was subject to no conditions making it necessary for the plaintiff to allege that the defendant was in possession of the land or that the plaintiff was ready, willing, and able to convey title. Loewenherz v. Weil, 33 Ga. App. 760 (2) (127 S. E. 883); Jeanes v. Atlanta & Lowry National Bank, 34 Ga. App. 568 (130 S. E. 353); Black v. Walker, 98 Ga. 31 (1) (26 S. E. 477); Riehle v. Bank, 158 Ga. 171 (123 S. E. 124).

The petition set forth a cause of action.

The “special” demurrer (see Douglas &c. Ry. Co. v. Swindle, 2 Ga. App. 550, 59 S. E. 600), challenges the plaintiffs right to recover attorney’s fees, solely because there was no written promise by the defendant to pay the same. We know of no law requiring such a promise to be in writing in order to be enforceable, under section 4252 of the Civil Code. See, in this connection, Demere v. Germania Bank, 116 Ga. 317 (42 S. E. 488); Oliver Typewriter Co. v. Fielder, 7 Ga. App. 525 (67 S. E. 210). When the defendant agreed to stand debtor in place of Fleming, this included a promise to pay attorney’s fees, subject, to the same conditions as affected the liability of Fleming. Amer. Mortg. Co. v. Rawlings, 127 Ga. 82 (2) (56 S. E. 110); Johnson v. Globe Dry Goods Co., 11 Ga. App. 485 (75 S. E. 822); Turner v. Peacock, 153 Ga. 870 (5) (113 S. E. 585). When these conditions were complied with, the defendant became responsible for this item, as well as for the principal and interest.

The court properly overruled the demurrers.

Judgment affirmed.

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


text:
    17165.
    PARRISH v. CENTRAL OF GEORGIA RAILWAY COMPANY.
    1. The judgment excepted to in this ease was rendered in. term in the superior court of Eulton county on November 24, 1925. The bill of exceptions was presented to the trial'judge on January 21, 1926, and was certified by him on January 29, 1926. It contained the statement that it was presented “within the period allowed by law, the term of said court lasting more than 30 days.” This recital was verified by the judge’s certificate as being true. Held: The bill of exceptions is not subject to dismissal either upon the ground that it did not appear to have been presented within 30 days from the adjournment of the court or upon the ground that it did not appear to have been certified “within 30 days from said adjournment.”
    2. The amendment to the petition, which the court allowed to be made subject to demurrer, was not subject to the grounds of the demurrer thereafter urged, and it was error to strike the amendment in response to the demurrer.
    3. The maxim res ipsa loquitur may, in certain extraordinary eircumstances, be applicable in negligence cases between master and servant, including cases under the Pederal employer’s liability act. Under the evidence introduced, the jury would have been authorized to apply the maxim in this case, and to infer that the defendant was negligent as alleged in the plaintiff’s petition. There was enough in the plaintiff’s evidence to carry the case to the jury, and the court erred in awarding a nonsuit.

      Appeal and Error, 4 O. J. p. 269, n. 13; p. 272, n. 36, 38; p. 793, n. 45.
    Courts, 15 C. J. p. 936, n. 15.
    Master and Servant, 39 C. J. p. 975, n. 1, 98, 99; p. 976, n. 6, 8; p. 977, n. 10; p. 980, n. 17 New; p. 981, n. 28; p. 1052, n. 20; p. 1116, n. 61.
    Pleading, 31 Cyc. p. 416, n. 43; p. 417, n. 47; p. 462, n. 87,

      Decided November 15, 1926.
    Action for damages; from Fulton superior court — Judge E. D. Thomas. November 24, 1925.
    Application for certiorari was denied by the Supreme Court.

      Hugh Gold, George & John L. Westmoreland, for plaintiff.

      Little, Powell, Smith & Goldstein, Kendriclc L. Scott, for defendant.
   Bell, J.

In this action under the Federal employer’s liability act, by Parrish against the Central of Georgia Railway Company, the court on demurrer struck ,an amendment to the plaintiff’s petition, which had been allowed subject to demurrer, and at the close of the plaintiff’s testimony awarded a nonsuit. The case is here upon exceptions by the plaintiff to these rulings. The original petition alleged: The plaintiff was a member of the defendant’s switching crew'in what is known as its “industry yard,” in Fulton county, the work of this crew being “to make up and distribute trains in said yard.” During a certain night the plaintiff, while in the line of his duty, was walking between tracks No. 2 and No. 3. A freight-train of the defendant, composed of fruit-cars, proceeded along track No. 2, and, as it was passing, the plaintiff was struck on his head by an open door of one of the cars, “which was swinging out 3-% to 4 feet beyond the track upon which the said train was running,” with the result that the plaintiff sustained, described injuries. The plaintiff was injured through “the negligence of the defendant in allowing the door of said freight-train to swing open when it knew or ought to have known that its agents or servants were likely to be along or near the track of said train at the point where the plaintiff was struck.”

The amendment to the petition was, “that the defendant was negligent in failing to make an inspection of the door of the fruit-car which swung open and hit plaintiff, as a proper inspection of the same at the point of loading would have' disclosed the defective condition and want of repair of said door, and that in its bad condition it was likely to fly open and thereby endanger the life and limbs of the plaintiff or other servants of the defendant engaged in their service along the line of the said defendant, similarly situated as the plaintiff was at the time he was struck by the open door, and that if said car door had been-in good condition and repair, the same would not have swung open; that the door of said car was old and the latches thereon were insecure and out of repair, which caused the said door to fly open.” The grounds of the defendant’s demurrer to this amendment were: The allegations thereof are contradictory of the averment of the petition to the effect that the door was negligently left open by the defendant; and the amendment does not show in what way the door was defective nor in what manner the defendant was negligent either in allowing “the alleged defects to exist or in failing to discover same,” or wherein the defendant failed to make an inspection of the door, or that an inspection would have revealed the alleged defective condition, or that in its alleged bad condition the door was likely to fly open.

The judgment excepted to was rendered on November 24, 1925. The bill of exceptions was presented on January 21, 1926, and contained the statement that it was presented “within the period allowed by law, the term of said court lasting more than 30 days,” which statement was duly verified by the usual certificate of the presiding judge to the bill of exceptions. This certificate was signed by the judge on January 29, 1926. The defendant in error has moved to dismiss the bill of exceptions, upon the grounds that it does not appear that the bill was presented within 30 days after the adjournment of the term of the court in which the case was tried, and it does not appear that the bill was certified “within 30 days from said adjournment.” The evidence will be referred to in the opinion.

Where it appears from the bill of exceptions that the same was tendered within the time required by law, a mere failure on the part of the presiding judge to sign it within the time prescribed is not cause for dismissal. Civil Code (1910), § 6187. A bill of exceptions to review a judgment rendered in term must in every case be tendered to the trial judge within 30 days from the adjournment of the court, and must be tendered within 60 days from the judgment complained of, where the court is not adjourned within 30 days from its organization. Civil Code (1910), § 6152; Birmingham Finance Co. v. Chisholm, 162 Ga. 501 (134 S. E. 301). It must affirmatively appear from the bill of exceptions or the entries thereon,- or the record, that the bill was presented within the time prescribed by law. Crawford v. Goodwin, 128 Ga. 134 (1) (57 S. E. 240). But where, as in the present case, the bill of exceptions affirmatively recites that it was tendered within the period allowed by law, and where the trial judge certifies the bill in the usual manner, and where nothing to the contrary appears, it will be assumed in this court that it was tendered in due time. Taliaferro v. Smiley, 112 Ga. 62 (1) (37 S. E. 106); Evans v. State, 112 Ga. 763 (38 S. E. 78). The statement in the bill of exceptions that the term of the court lasted more than 30 days was not contradictory of the statement that the bill of exceptions was presented within the period allowed by law, that is, within 30 days from the adjournment. Both these statements could be true. Hence, there is nothing to impeach the recital in the bill, certified to be true, that it was presented in time. From the dates set forth, the presentation was in 60 days from the judgment excepted to. Thus it appears that both limitations as to time of presentation were complied with. This case is to be distinguished from Newton v. Burtz, 44 Ga. 599; Walters v. Morgan, 46 Ga. 568; Bush v. Keaton, 65 Ga. 297 (2). In none of these cases was there a recital' in the bill of exceptions that it. was presented within the period allowed by law. The present case is also different from the Chisholm case, supra, in that it affirmatively appeared from the date set forth in the bill of exceptions in that case that the court must have adjourned by operation of law more than 30 days prior to the tender of the bill of exceptions for- certification. There is no merit in the motion to dismiss the bill of exceptions.

The amendment, when considered in connection with the allegations of the original petition, was not subject to the objections interposed thereto in the demurrer. There is no contention that it set forth a new and distinct cause of action. See City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); Georgia Ry. &c. Co. v. Reeves, 123 Ga. 697 (1) (51 S. E. 610); Bowen v. Adams, 129 Ga. 688 (2) (59 S. E. 795). The demurrer was a general attack upon the amendment as a whole. There was no specific demurrer to any part of it for a want of sufficient particulars. The allegation that “the door of said car was old and the latches thereon were insecure and out of repair, which caused the said door to fly open,” was a sufficient specification of a defect, as against the general criticism in the demurrer, as was also the allegation that the defendant was negligent in failing to make an inspection. Since the whole demurrer was to the whole amendment, and since it certainly can not be said that any objection made by the demurrer was fatal to the entire amendment, the demurrer failed and ought to have been overruled. Mendel v. Converse Co., 30 Ga. App. 549 (11) (118 S. E. 586); So. Ry. Co. v. Phillips, 136 Ga. 282 (1) (71 S. E. 414).

The evidence authorized the inference that the plaintiff was struck by an open door of a passing train, at the time and under the circumstances alleged-in the petition. We think that from this evidence, unexplained, the jury would have been authorized to infer that the company was negligent as alleged in the petition. Bonita Theater v. Bridges, 31 Ga. App. 798 (1 c) (122 S. E. 255). This is to hold that in some circumstances the maxim res ipsa loquitur may be applicable in a suit for negligence by a servant against his master. The same has been held before in this State, both by our Supreme Court and by this court. Chenall v. Palmer Brick Co., 117 Ga. 106 (43 S. E. 443); Palmer Brick Co. v. Chenall, 119 Ga. 837 (47 S. E. 329); So. Ry. Co. v. Wessinger, 32 Ga. App. 551 (124 S. E. 100); Emory University v. Bliss, 35 Ga. App. 752 (134 S. E. 637). On careful examination we are of the opinion that this court did not rule to the contrary in Williams v. W. & A. Ry. Co., 20 Ga. App. 726 (93 S. E. 555), although, in the opinion in rehearing, certain cases taking the opposite position were cited with apparent approval. It remains, however, that no direct ruling was made upon the question in that ease. Both that and the later Wessinger case were suits under the Federal employer’s liability act. In the latter case we held directly that the maxim referred to may be applied in certain instances in cases arising under that act. There is no reason why it may not be. applied in a suit under the liability act, if it can be applied at all in negligence cases between servants and their masters. This last has been disputed in many jurisdictions, and the Federal courts (other than the United States Supreme Court) have generally, but not universally, held that the rule is applicable in such cases not at all or only within certain more or less narrow limitations. We can not concur in the view of the counsel for the defendant in error that the United States Supreme Court has made any ruling upon this question which could he said to be materially opposed to the doctrine announced by the Supreme Court of this State in the Chenall cases, cited above; but in view of what is said in the Gotschall case, infra, in our opinion the two courts are virtually in accord upon this question. See, in this connection, Great N. Ry. Co. v. Wiles, 240 U. S. 444 (36 Sup. Ct. 406, 60 L. ed. 732); Minn. Ry. Co. v. Gotschall, 244 U. S. 66 (37 Sup. Ct. 598, 61 L. ed. 995); So. Ry. Co. v. Bennett, 233 U. S. 80 (34 Sup. Ct. 566, 58 L. ed. 860); Looney v. Metro. Ry. Co., 200 U. S. 479 (26 Sup. Ct. 303, 50 L. ed. 564); Patton v. Texas Ry. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361); Texas & P. Ry. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707, 41 L. ed. 1136); Richey on Federal Employer’s Liability Act (2d ed.), 330, § 163; 1 Roberts, Federal Liability of Carriers, 951, § 544; 4 Labatt on Master & Servant, §§ 1599, 1600, 1601, pp. 4851-4886. As between the decisions of the Supreme Court of this State and those of inferior Federal courts, we should regard the former as controlling on this court.

We are not ruling in this case that the negligence of the company may be inferred from the mere happening of the injury. The evidence showed that if the plaintiff was struck by the door' as alleged, the door extended outward beyond the side of the car from 18 to 24 inches, and thus created a condition of the train that was both abnormal and dangerous. What we hold is that from the injury and the attendant circumstances the jury were authorized to find that the accident would not have happened unless the master, who was in control of the train, was lacking in diligence. Under the rulings made in the last review of the Chenall case, supra, the inference of negligence as to any defects in the door will at once lose its force should it appear that the defect was latent. The maxim in question would not be inapplicable merely because there was nothing to show whether the defect was latent or patent. Ocean S. Co. v. Matthews, 86 Ga. 418 (12 S. E. 632).

Those decisions which deny the applicability of the maxim in cases of master and servant generally proceed upon the theory that the injury may be attributed to the negligence of a fellow servant or to contributory negligence of the plaintiff, or to some risk which he assumed, with as much reason as to the negligence of the master. It seems that these considerations could have no weight in a case under the Federal employer’s liability act, from which the fellow-servant rule is excluded, as is also to some extent that of contributory negligence, and under which the rule as to the assumption of risk is purely defensive. Ridge v. Norfolk So. R. Co., 167 N. C. 510 (83 S. E. 762); Ala. & V. R. Co. v. Groome, 97 Miss. 201 (52 So. 703); Iarussi v. Mo. P. R. Co., 161 Fed. 66. See other cases cited in note in L. R. A., 1917E, 77, 78, and in 4 Labatt on Master & Servant, pp. 4869-4871. The doctrine known as res ipsa loquitur was defined by the United States Supreme Court in Sweeney v. Erving, 228 U. S. 232 (33 Sup. Ct. 416, 57 L. ed. 815, Ann. Cas. 1914D, 905) (not a master and servant ease), as follows: “In our opinion res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a ease to be decided by the jury, not that they forestall the verdict. Ees ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.”

We think that in the absence of any explanation of the circumstances disclosed by the plaintiff’s evidence, there was enough to Carry the case to the jury, and therefore that the court erred in awarding a nonsuit.

Judgment reversed.

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


author: Jenkins, P. J. Stephens, J.,

text:
    17337.
    COBB LUMBER CO. v. SUNNY SOUTH GRAIN CO.
    1. “Where no time for the performance is specified, the law will presume that a reasonable time was contemplated; and. where by the terms of a contract of purchase and sale the commodity was to be shipped ‘as ordered,’ it was incumbent upon the purchaser to direct shipment within a reasonable time.” Seabrook v. Moore, 25 Ga. App. 613 (2) (103 S. E. 839). Thus, where an executory contract for. the sale of goods provided for shipment on a given date “or as ordered out,” it was incumbent upon the purchaser to give shipping instructions prior to the date named; and in the event of his failure to do so, the vendor had a right to ship without an order as authorized by the contract.
    2. “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Civil Code (1910), § 4268 (8). “In contracts for the sale of personal property, wherein a time is named for delivery, it is a question of construction, in each particular ease, as to whether or not the time named is a material part of the contract, a breach of which will give the other partj' a right of action therefor.” Gude v. Bailey, 4 Ga. App. 226 (61 S. E. 135). In a contract such as the one described in the foregoing division of the syllabus, where the date named was not fixed as a final and definite date for delivery, but where the time of shipment could be accelerated or deferred at the will of the vendee, it could not reasonably be said that shipment on the particular date mentioned in the agreement was intended by the parties to be of the very essence of the contract, so that a delay of not more than a day in the shipment would void 'the seller’s rights. Moreover, under the facts as disclosed by the record in this case, the vendee must be held to have waived any objection he might possibly have had upon the ground that the shipment so made was not in strict compliance with the contract as to time. Where a purchaser gives to the seller the specific ground of objection under which the goods are rejected, and the seller, relying upon the ground thus urged as constituting the reason for their rejection, proceeds to take such action as would protect liis interest if the ground of objection assigned should be adjudged invalid, but which would subject him to injury if such rejection should be upheld, the purchaser, after litigation has begun, can' not be permitted to set up a new and different ground of objection, so as to render injurious to the seller the procedure taken by him on the faith of the ground of objection originally assigned. See Tuggle v. Green, 150 Ga. 361 (2) (104 S. E. 85) ; Union v. Beall, 30 Ga. App. 748 (1) (119 S. E. 533). In the instant case, not only does it appear that the purchaser sent to the seller a telegram doclining to accept the goods ordered on the one specific ground that the price was “entirely out of line for the grade of feed shipped,” making no complaint of the alleged failure of the seller to ship the goods on the particular date named in the contract, but it also appears that the purchaser offered to accept the goods at a less price than the contract price, still making no objection to the alleged date of shipment, and that upon this offer being refused by the seller, the latter, acting upon his rights in view of the specific grounds of objection made by the vendee, proceeded to sell the goods in accordance with the provisions of section 413 ls of the Civil Code (1910). In a suit brought by the seller under the last-named section of the code the purchaser will not be heard then to raise for the first time the issue that the shipment was not made in strict compliance with the contract as to time.

      Appeal and Error, 4 C. J. p. 852, n. 56.
    Contracts, 13 C. J. p. 683, n. 1; p. 687, n. 42.
    Sales, 35 Cyc. p. 167, n. 3; p. 175, n. 87; p. 179, n. 10, 11; p. 182, n. 39, 41; p. 184, n. 56, 57; p. 239, n. 73.

      3. Under the principles of law set forth above, even if the charge complained of was erroneous, the error was harmless to the defendant, and, the verdict upon the issue made by the plea as to the quality of the goods being fully authorized by the evidence, the judgment overruling the motion for a new trial can not be disturbed.
    Decided November 15, 1926.
    Breach of contract; from city court of Oglethorpe — Judge Greer. February 27, 1926.

      John M. Greer, for plaintiff in error.

      John B. Guerry, contra.
   Jenkins, P. J.

This was a suit under section 4131 of the Code for loss sustained by the plaintiff vendor in pursuing the remedy fixed by the second clause of that section. It appears that about January 20, 1925, the plaintiff and the defendant entered into an executory contract for the sale of fifteen tons of feed-stuff, which contract provided for immediate shipment of three tons of the commodity, with the right of cancellation on the part of the vendee in ten days if the preliminary shipment proved unsatisfactory; otherwise the remainder of the goods to be shipped February 28, 1925, “or as ordered out.” After the preliminary shipment no shipping instructions for the remainder of the order were given by the defendant, and on February 28, 1925, or within a day or two thereafter, the goods were shipped to the defendant at Oglethorpe, Georgia, from the place of business of the plaintiff at Birmingham, Alabama, the goods reaching Oglethorpe on or before March 3, 1925, since the defendant .telegraphed the plaintiff at 3 o’clock p. m. on that date as follows: “Car feed here we can not use price entirely out of line for the grade of feed shipped make disposition.” No complaint was then made that the goods were not shipped within the time .provided in the'“contract. On March 3, or the next’day, the plaintiff’s representative visited the defendant, who contended that the goods were not of the grade ordered, but offered to take them at a price of $6 per ton less than the contract price. At that time the defendant still made no contention that the goods were not shipped on February 38, 1935. This offer of price reduction was declined by the plaintiff, who then proceeded to sell the goods for the defendant’s account, receiving a price of $13 per ton less than the contract price. Upon suit being brought by the plaintiff for the loss thus sustained, the defendant filed a plea setting up in part that shipment of the goods was not made according to the terms of the contract, and that the goods were unsatisfactory, and that the defendant had never ordered them shipped out. The jury returned a verdict in the plaintiff’s favor, and the defendant filed a motion for a new trial, wherein it is contended that the court erred in charging the jury that shipment by the plaintiff on February 38, 1935, or about that date, would be a compliance with the terms of the contract. This motion for a new trial was overruled, and the defendant excepted.

Judgment affirmed.

Bell, J., concurs. Stephens, J., concurs specially.

Stephens, J.,

concurring specially. I concur upon the ground that the plaintiff had not violated the contract-as to time in the shipment of the goods. •


author: Jenkins, P. J.

text:
    17476.
    Bender & Hammett v. Dunson & Brothers Company.
    Decided November 15, 1926.
    Appeal and Error, 4 O. J. p. 415, n. 78 New.
   Jenkins, P. J.

1. The claimant in a mortgage-foreclosure proceeding contends in the brief of his counsel that the description in the mortgage is so vague and indefinite as to render the instrument incapable of enforcement. Since, however, no copy of the instrument is embodied in the record, and since it appears in the brief of evidence that there was introduced in evidence a mortgage “covering all cotton grown on lands belonging to plaintiff . . during the year 1925 grown by P. H. Heard or his tenants,” which mortgage, the brief of evidence recites, was duly recorded, the brief of evidence should be construed as referring to a mortgage containing a proper description.

2. It can not be said as a matter of law that the facts and circumstances sworn to did not authorize the finding that the cotton levied upon under the mortgage foreclosure constituted a portion of the mortgaged crop. Judgment affirmed.

Stephens and Bell., JJ., eoneur.

Levy and claim; from city court of LaGrange — Judge Tuggle. May 8, 1926.

L. B. Wyatt, for plaintiffs in error.

M. U. Mooty, J. T. Thomasson, contra.


text:
    17582.
    GEORGIA RAILWAY AND POWER COMPANY v. McELROY et al.

    Since the verdict must be set aside because of error in the charge of the court, the alleged excessiveness of the verdict for damages is not passed upon.
    The charge of the court was erroneous in that part in which the jury were instructed that if they believed that the alleged negligence was the cause of the decedent’s .death, “and that the decedent could not, by the use of ordinary care, have avoided the consequence of that negligence after it was discovered, . . the plaintiff would be entitled to recover in this case, unless barred of* recovery by some rule that” would thereafter be given in charge; since this instruction absolved the decedent from the duty of exercising ordinary care until after the actual discovery of the- defendant’s negligence, even though, under the evidence, it might possibly have been found that it could have been ascertained, and its consequences avoided, by the exercise of ordinary care. The error was not corrected by other instructions given.
    Appeal and Error, 4 C. J. p. 650, n. 37; p. 1050, n. 85.
    Negligence, 29 Cye. p. 515, n. 1; p. 652, n. 11; p. 654, n! 25 New.
    Street Railroads, 36 Cyc. p. 1611, n. 63, 64; p. 1622, n. 26.
    Trial, 38 Cye. p. 1598, n. 26 New; p. 1691, n. 51; p. 1692, n. 52; p. 1784, n. 87.
    Decided November 15, 1926.
    Damages; from Pulton superior court — Judge Pomeroy. • May 24, 1926.

      Colquitt & Conyers, for plaintiff in error.

      Reuhen R. & Lowry Arnold, B. P. Gamhrell, contra.
   Jenkins, P. J.

McElroy, for himself, and as next friend for four minor children, brought action for the homicide of the wife and mother, who was killed by the operation of a street-car at a street-crossing in the City of Atlanta, and he recovered the sum of $22,500. Exception is taken to the overruling of the defendant’s motion for a new trial, based on the ground that .the verdict is excessive in amount, and upon alleged errors in the charge of the court.

1. Under the allegations of the petition and the testimony of the plaintiff, McElrojr, in estimating the value of the decedent’s services, the amount of the recovery is. large, but since the verdict must be set aside on account of an error in the charge of the court, the ground of exception based upon the alleged excessiveness of the verdict is not passed upon, and the.amount of the verdict, under the pleadings and the evidence submitted, is taken into consideration only in dealing with the alleged error in the charge. See, in this connection, Seaboard Air-Line Ry. v. Miller, 5 Ga. App. 402, 406 (63 S. E. 299).

2. The court charged the jury as follows: “If the jury believes from the evidence that the decedent, Mrs. McElroy, was the wife of the plaintiff, Frank McElroy, and the mother of the minor children named in the petition, and that on the day named in the petition, while crossing Grant street in the City of Atlanta, Fulton county, Georgia, at the intersection of Milledge avenue, she was run upon and killed by a street-car manned and operated by the defendant’s servants and agents, and if you believe the defendant was negligent in so causing said collision in some one or more of the particulars described in the petition, and that such negligence was the cause of the death of the decedent, and that the decedent could not, by the use of ordinary care, have avoided the consequence of that negligence after it was discovered, then I charge you that the plaintiff would be entitled to recover in this case, unless barred of recovery by some rule that will hereafter be given you in charge.” Exception is taken to this excerpt from the charge, on the ground that the bar to the plaintiff’s recovery on account of the failure of the decedent to exercise ordinary care to avoid the consequences of the defendant’s negligence was thereby limited to a time after the negligence of the defendant had been actually discovered.

Section 4426 of the Civil Code provides as follows: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Where the pleadings and the evidence make an issue as to the plaintiff’s diligence and the defendant’s negligence, it is error for the court to omit an Instruction to the jury embodying the principle expressed in the code-section quoted, even in the absence of any request to do so. Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 122 Ga. 82 (7) (49 S. E. 818); Southern Ry. Co. v. Gore, 128 Ga. 627 (58 S. E. 180). The rule of law embodied in this comprehensive section of the code has many times been construed by the appellate courts, and in the case of Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), it was held that “the duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence.” Thus, while in view of the issues involved it was the duty of the court to give in charge the principle embodied in the quoted code-section, it was error to limit the meaning of the rule so as to require the decedent to exercise ordinary care to avoid the consequences of the defendant’s negligence only after it had been discovered, since the rule of the code-section, as thus construed, made it incumbent upon the decedent to exercise such diligence, whether the defendant’s negligence was actually discovered or not, whenever it was either apparent or the circumstances were such that an ordinarily prudent person would- have 'reason to apprehend its existence.

(a) It is contended that the most that can be said in criticism of the excerpt from the charge complained of is that it is incompíete, but that it is a correct statement of the law so far as it goes, and that since a judge can not be expected to charge in one breath all the law of the case, the excerpt, even if incomplete, can not be accounted as reversible error. It is well settled that while a charge embracing an abstractly correct and pertinent principle of law, complete within itself, is not rendered erroneous by a failure to charge, in connection therewith, some other legal principle applicable to the case, this rule has no application where the charge as given, on account of its incompleteness, is thereby rendered inherently incorrect. Brown v. Meikleham, 34 Ga. App. 207 (128 S. E. 918). “When a judge undertakes to charge the law upon any subject, he mu§t charge all of it upon that subject that is material and applicable to the case.” Hinson v. Hooks, 28 Ga. App. 430 (108 S. E. 822). The charge was inherently erroneous, in that it absolved the decedent from the duty of exercising ordinary care until after the actual discovery of the defendant’s negligence, even though, under the evidence, it might possibly liave been found that it could have been ascertained, and its eon-' sequences avoided, by the exercise of ordinary care. '

(6) It is further contended that this part of the charge, even if erroneous, was elsewhere corrected. While the judge, a little further in his charge, but after a break in the connection, did instruct the jury, in the comprehensive language of the code-section, that the plaintiff could not recover if the decedent by the exercise of ordinary care could have avoided the consequences to herself caused by the defendant’s negligence, the general rule as thus stated must necessarily have been considered by the jury in the light of its previous explanation. The court having failed to withdraw expressly the erroneous construction, or to give, in the same connection, the correct interpretation, so that, construing such instruction as a whole, the error might be thus taken as eliminated, the error can not be taken as having been corrected. White v. State, 24 Ga. App. 122, 126 (100 S. E. 9); Henderson v. Cook, 27 Ga. App. 512 (2) (108 S. E. 904); Georgia Ry. & Power Co. v. Britt, 31 Ga. App. 54 (119 S. E. 460). Moreover, nowhere, in any portion of the charge, was the jury instructed that the duty of the decedent to exercise ordinary care to avoid the consequences of defendant’s negligence arose when such negligence became apparent, or when the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence.

(c) It is further contended that the charge complained of, even if erroneous, could not have prejudiced the rights of the defendant, for the reason that the evidence does not authorize a finding that the decedent by the exercise of ordinary care could have avoided the consequences of the defendant’s negligence after it had or should have become known to her. The negligence alleged is that after the car had stopped and just as the decedent got upon the track, and while she was in plain view qí the motorman, the motorman suddenly, negligently, and violently, and without any warning, started the car and caused it to strike against the decedent. The evidence was in conflict as to whether the car stopped at the crossing at all or not, but there was evidence for the plaintiff that the car did stop, and that the decedent then undertook to cross the street at a point about three feet in front of the ear, and that the car started up grade at a very low rate of speed, about two or three miles per hour, while the decedent was on. the middle of the track. It was possible for the jury to have believed that the decedent, by moving a very short distance after the car started, might have gotten completely across the track before the car reached her, and that under the rule of ordinary care it was incumbent upon her to have done so. In order to say that the charge excepted to was harmless, it would be necessary for this court to hold, as a matter of law, that it would have been impossible for the decedent, by the exercise of ordinary care, to have avoided the consequences of the alleged negligence of the defendant after it had or should have become known. As has often been held by the appellate courts, questions of negligence, contributory negligence, as well as what constitutes the proximate cause of an injury, are matters peculiarly for determination by the jtny; and we do not feel authorized to hold, especially in view of the size of the verdict, as indicated in the first division of the decision, that it was impossible for the decedent, by the exercise of ordinary diligence, to have avoided the consequences of the defendant’s negligence, if it was negligence, after such negligence had been or should have been discovered.

3. The remaining grounds of the motion for new trial relate to exceptions taken to certain language employed by the court in the charge. Since the verdict must be set aside, and the errors thus complained of are such as are not likely to arise on a subsequent trial, it is not necessary that they be passed upon.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17598.
    PATTERSON v. PARRISH.
    The judge of the city court of Valdosta having authority, under the act of 1901 as to that court (Ga. L. 1901, p. 178), to do all acts which judges of county courts are authorized to do, and judges of 'county courts being authorized to take affidavits in garnishment proceedings, and to issue summons thereon, he has authority to take such affidavits and issue such summons, although the act further provides that “garnishment proceedings in said city court shall be conformable to the laws of this State on the subject in the superior court,” this latter provision being manifestly intended to refer to the method of procedure where garnishment has been instituted, and not to the authority to institute such a proceeding.
    Appeal and Error, 3 O. J. p. 689, n. 41; p. 742-, n. 3; p. 752, n. 86.
    Courts, 15 C. J. p. 987, n. 83 New.

      Other questions, first raised in the brief of counsel in this court, can not be considered.
    Decided November 15, 1926.
    Motion to vacate judgment; from city court of Valdosta— Judge Cranford. July 6, 1926.

      Franklin & Langdale, for plaintiff in error.

      Little & Dickerson, contra.
   Jenkins, P. J.

1. Except as to questions Of jurisdiction, the authority of the Court of Appeals for the correction of errors is limited to the consideration of questions raised on the trial in the court below, and this court is without authority to determine questions not there raised and which are presented for the first time in this court. Evans v. Edenfield, 7 Ga. App. 175 (3) (66 S. E. 491). The only attack made upon the judgment in the garnishment proceeding in the court below and presented by the bill of exceptions being that the judge of the city court- of Valdosta was without jurisdiction to take the affidavit and issue the summons of garnishment, the other questions raised for the first time in the brief of counsel can not be considered.

2. The act of the General Assembly of 1901 (Ga. L. 1901, p. 178) provides that the judge of the city court of Valdosta shall have authority to do all acts which the judges of the county courts . of this State are authorized to do. Judges of the county courts are authorized to take affidavits in garnishment proceedings, and to issue summons thereon. Accordingly, the judge of the city court of Valdosta is likewise clothed with such authority. The authority thus granted is not inferentially or by implication nullified by the further provision of the act that “garnishment proceedings in said city court shall be conformable to the laws of this State on the subject in the superior court.” To give the last-quoted provision of the act the interpretation contended for by plaintiff in error would be to render it self-contradictory and ineffective. The contention is that since, under sections 5268 and 5269 of the Civil Code governing such a proceeding in the superior courts, the affidavit can only be taken before, and the summons issued by, one of the officers authorized by the code to issue attachments, and since under section 5056 judges of city courts are not enumerated among those authorized to issue attachments, the judge of a city court can not, therefore, take affidavit for and issue summons of garnishment.- The manifest purpose and intent of the quoted provision of the act must be taken to refer to the method of procedure where garnishments have been instituted, rather than to the authority conferred to institute them. Since the act. confers upon the judge of the city court of Yaldosta all authority vested in the judges of the superior courts, including express authority to issue attachments, he is clothed with all powers incident to such delegation of authority, including jurisdiction to take affidavits for and issue summonses of garnishment; and the quoted provision of the act merely requires that all subsequent proceedings therein shall conform to the regulations prescribed for such matters in the superior courts.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Luke, J.

text:
    16141, 16181.
    CONTINENTAL TRUST CO. v. BANK OF HARRISON; and vice versa.

    1. Tlie Bank of Harrison, on June 26, 1920, bought from tlie Continental Trust Company, for cash, a promissory note for the principal sum of $5,000, executed on June 26, 1920, by “The Cotton Warehouse Company,” and payable sixty days after date to itself or order, and by it indorsed in blank, to which was attached as collateral security a promissory note executed by “The Ellis Cotton Company,” payable to itself or order, and by it indorsed in blank. Attached to this collateral note, as collateral security, was a warehouse receipt of “The Cotton Warehouse Company,” which represented that thirty-two bales of cotton marked “L. A. C.” had been deposited in the warehouse of that company, and was in its actual possession at the time (to wit, June 26, 1920) when the Bank of Harrison bought the said note from the Continental Trust Company. Held, that under these facts there was an implied warranty by the Continental Trust Company that the thirty-two bales of cotton, described and symbolized by the warehouse receipt, were in existence and in the warehouse of “The Cotton Warehouse Company” on June 26, 1920.
    Appeal and Error, 4 C. J. p. 72, n. 1.
    Brokers, 9 C. J. p. 679, n. 40.
    Damages, 17 C. J. p. 1062, n. 81.
    Evidence, 22 C. J. p. 158, n. 53; p. 164, n. 76; p. 165, n. 87; p. 169, n. 34 New; p. 337, n. 59; p. 338, n. 60, 62; p. 986, n. 4; p. 987, n. 21; p. 1017, n. 8S.
    New Trial, 29 Cyc. p. 788, n. 3; p. 790, n. 8 New; p. 794, n. 36 New.
    Trial, 38 Cyc. p. 1339, n. 94; p. 1516, n. 57; p. 1693, n. 55; p. 1724, n. 88.
    Warehousemen, 40 Cyc. p. 425, n. 15 New.

      (a) Under the ruling and the facts stated above, where the Bank of Harrison brought suit against the Continental Trust Company for damages for a breach of an implied warranty, and alleged that the trust company warranted that the thirty-two bales of cotton were in existence and in the custody of the warehouseman on June 26, 1920, and that the trust company “breached such warranty, . . for that none of such cotton was in existence nor in the custody of said warehouseman” on June 26, 1920, and where the evidence failed to show affirmatively that such cotton was not in existence, or that it was not in the custody of the warehouseman, but where the evidence showed that even if the cotton had been in the custody of the warehouseman, • it could not have been delivered to the holder of the warehouse receipt for the cotton, because the receipt did not bear the tag numbers, which were the only means of identifying the cotton, the plaintiff, under its pleadings, was entitled to recover.
    2. Parol evidence as to the existence of notes, checks, receipts, books, letters, and the like, or as to their location, size, length, quantity, etc., but not undertaking to disclose the material contents thereof, is not subject to the objection that the writings themselves would be higher proof. Where such writings are only collaterally in point, and are in no sense the foundation of the action or defense, even their contents may sometimes be shown by parol without accounting for the non-production of the papers themselves. Fisher v. Jones, 93 Ga. 717 (2) (21 S. E. 152); Kennedy v. Walker, 156 Ga. 711 (2) (120 S.-E. 105) ; Armour v. Bluthenthal, 9 Ga. App. 707 (2) (72 S. E. 168) ; Borders v. City of Macon, 18 Ga. App. 333 (1) (89 S. E. 451).
    3. Parol evidence of an accountant or other person, to the effect that he made an audit of the books, records, and accounts of a corporation, is admissible, without a production of the documents themselves, and over the objection that such documents would constitute higher proof.
    4. The issue being whether certain warehouse receipts for cotton were spurious at the time of their transfer by the defendant to the plaintiff, it was competent for a person to testify .that about thirty days subsequent to the transfer he went to the warehouse and made a thorough examination of the cotton stored therein, and never found a bale corresponding with the receipts in controversy, and that no such cotton was there.
    5. Evidence relating to the questions being tried by the jury, and bearing upon them directly or indirectly, is always relevant. Civil Code (1910), § 5744. If the evidence offered by a party is of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury. Dalton v. Drake, 75 Ga. 115 (3); Purser v. MeNair, 153 Ga. 405 (2), 411 (112 S. E. 648). Even where irrelevant evidence is admitted over timely objection, it affords no cause for a new trial, unless the nature of the evidence is such as reasonably to prejudice the rights of the objecting party. Central Ga. Transmission Co. v. Btorer, 17 Ga. App. 55 (85 S. E. 498).
    6. The defendant corporation had taken the deposition of its president as a witness for itself in another case involving similar transactions. Upon the trial of the instant case Hie plaintiff introduced in evidence a part of that deposition, which,was in the nature of an admission relevant to tlie issues then being- tried by the jury. The defendant’s counsel thereupon insisted on reading to the jury the entire deposition of its president, without the consequences attendant upon the introduction of evidence by the defendant. The court ruled that the defendant might introduce any part of the deposition it saw fit to offer as the testimony of its own witness, but could not get before the jury as evidence for the plaintiff any part of the deposition other than what the plaintiff had elected to offer. In the 34th ground of the motion for a new trial that ruling is assigned as error, and the entire deposition of the witness is set out, but the admitted and excluded parts of it are in no way separated or indicated. The motion recites that “plaintiff’s counsel read the portions of the deposition which appear in the brief of evidence;” but, without a resort to that brief, it can not be ascertained what part of the deposition was admitted, and, without a comparison of that part with the whole, it can no,t be ascertained which part of the deposition was excluded. A resort to the brief of evidence is, therefore, necessary to a proper decision of the question sought to be presented. Held: Under repeated rulings of this court and of the Supreme Court, such a ground of a motion for a new trial will not be passed upon. See 1 Ene. Dig. Ga. Rep. (Cum. Supp.), 753 (2) et seq.
    7. Where a part of a petition or of a plea is stricken by amendment, the stricken part may, if pertinent to any issue remaining in the case, be offered in evidence; but, unless so offered and admitted in evidence, it is not evidence for the consideration of the jury or proper matter for argument of counsel, save only where the amendment is made after the evidence is closed. Lydia Pinkham Medicine Go. v. Gibbs, 108 Ga. 138 (33 S. E. 945); Ala. Midland Ry. Go. v. Guilford, 114 Ga. 627 (40 S. E. 794). A different rule is applicable to parts of pleadings that are not stricken. Civil Code (1910), § 5775.
    8. The charge that “this petition is not in evidence and will not be regarded by you as evidence” affords no cause for a new trial, under the facts of this ease, the defendant claiming no beneficial admission therein, and the gravamen of the complaint being that stricken portions of the petition not offered in evidence were thereby eliminated from the consideration of the jury. Gooley v. Abbey, 111 Ga. 439 (3) (36 S. E. 786).
    9. Under the facts of the case it was not erroneous to instruct the jury as follows: “In arriving at a verdict, the jury will consider the facts proved, and sometimes, in the absence of counter evidence, might infer the existence of other facts reasonably and logically consequent thereon.”
    10. In view of the issues and evidence in this case, it was not erroneous to instruct the jury as follows: “If the notes are of some value, the measure of damages is the difference between the price paid and the actual value. Now, if you find that the receipts were spurious, if you find that on- the days of the alleged purchase of such cotton paper, the cotton referred to in said receipts was not actually in the warehouse to respond to such receipts, and that on that account plaintiff sustained loss, you should find a verdict for the plaintiff for the value of such cotton, not exceeding the face amount of the notes, diminished by the value of the cotton notes without such cotton security.”

      11. Error is assigned on the following charge: “It is claimed that there is evidence in this case that such notes, without the cotton, were worth three and five one hundredths cents on the dollar, or about that. You are not bound by that estimate, but should deduct from the damages, if you find any, if you award such damages, the value of such notes unsecured by cotton, and you may, in your discretion, add additional-damages calculated on a seven per cent, basis from the dates of the alleged breach of warranty to the present time.” The ground upon which this instruction is complained of is that the petition alleged the notes to be worth five per cent, of their face value, and this charge authorizes a less valuation than the plaintiff itself claimed. Held: The charge was applicable to the evidence, and the verdict does not exceed the allegations of’ the plaintiff’s petition, or the amount authorized by the uncontradicted evidence. Under the facts of the case such a charge affords no cause for a new trial.
    12. Eor no reason assigned was it erroneous to instruct the jury as follows: “It is claimed that the evidence in this case tends to show that the notes involved in this case, — that is, the former notes purchased by the plaintiff from the defendant, — were exchanged for these notes sued on. The value of those former papers was prima facie the full amount of their face value, and if the plaintiff paid full value therefor, you would be authorized to accept that valuation of the former notes in determining what the plaintiff paid for the notes in evidence before you.” See Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 706 (2), 720 (86 S. E. 49).
    13. Eor no reason assigned was it erroneous to instruct the jury as follows: “If one person sells cotton paper, or other property, to another party, he would not be heard to say that he was a broker, unless the purchaser knows that he was acting as broker. The .Continental Trust Company can not defend this case on the ground that it acted as a broker, because there is no evidence of that in this case, nor is there any evidence that the plaintiff knew that the trust company assumed to act as a broker.”
    14. Eor no reason assigned was it erroneous to instruct the jury as follows: “Some evidence has been allowed to go to the jury in this case on the condition of this "warehouse, that is to say, as to cotton that was in it on dates other than the dates embraced in this transaction; but the question you are to determine is: What was the situation there at the time of this alleged purchase and sale of these notes and warehouse receipts? And you will only consider the situation before or after that date as illustrative, if it is, of the situation at the time of this transaction.” In the absence of an appropriate written request for additional instructions upon the matter here in point, the charge as given was sufficiently full, fair, and specific.
    15. The record a-s a whole discloses no reversible error.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Complaint; from Fulton superior court — Judge Ellis. December 6, 1924.
    The Bank of Harrison sued the Continental Trust Company, and in its petition alleged, among other ¿filings, the following facts: “On or about June 26, 1920, defendant sold and delivered to plaintiff, for the consideration of $5,000 cash to it paid by plaintiff, that certain promissory note’ bearing daté June 26, 1920, executed by The Cotton Warehouse Company for the principal sum of $5,000, payable sixty days after date to itself or order, and by it indorsed in blank, to which note was attached as collateral security, one note of Ellis Cotton Company, payable to itself or order, and by it indorsed in blank, which collateral note for the principal sum of $5,000 purported to be secured by thirty bales of cotton marked E. L L S Various/ and symbolized by ware-' house receipt No. 1380 of The Cotton Warehouse Company attached thereto, which warehouse receipts represented that said bales of cotton had been deposited in the warehouse of said warehouse company, and further represented that said cotton was actually in the possession of said warehouse company at the time plaintiff so purchased said commercial paper.” After alleging similar transactions, involving various amounts, and after more fully describing the warehouse receipts in question, the petition further alleged: “And defendant by such several sales warranted to plaintiff that the several bales of cotton hereinbefore described and symbolized by said several warehouse receipts were in existence and in the custody of said warehouseman at the respective dates on which same and said notes were purchased by plaintiff. Yet defendant breached said warranty as to each and every of said bales of cotton, for that none of such cotton was in existence nor in the custody of said warehouseman on the dates aforesaid nor at airy time thereafter. The value of said commercial paper depended upon the existence of such cotton and the custody thereof by said warehouseman, for such cotton, if it had been in existence, and in the custody of said warehouseman, would have exceeded in value during the times aforesaid the face amount of the notes purporting to have been secured thereby, and at the several maturities of said notes so purchased by plaintiff, the maker thereof, to wit, The Cotton Warehouse Company, was insolvent, and from that time has been and now is insolvent, and the maker of some of said collateral notes, to wit, Ellis Cotton Company, was at such times insolvent, and the maker of all other of such collateral notes, to wit, E. S. Formby, was at such times and now is a nonresident of the State of Georgia, residing in the State of Alabama. Said notes so purchased by plaintiff were not and never have been worth, without the security of such cotton, but five per cent, of their face value, said notes aggregating a total face value of $30,-800; whereby plaintiff lost 95% of that sum, to wit: $28,260 with interest. By reason of the foregoing breaches of warranties defendant has damaged plaintiff in the sum of $28,260, together with interest on 95% of the several face amounts of said notes from their respective maturities until paid at 7% per annum.” By amendment to the original petition, striking the allegations as to some of the notes and warehouse receipts there referred to, the plaintiff reduced the aggregate amount of its claim from the figures shown above to $18,800. The warehouse receipts were identical in their formal parts, and one of them, indorsed by Ellis Cotton Company, was in full as follows: “The Cotton Warehouse Company, Inc. Beeeived from Ellis Cotton Company one hundred (10Ó) bales of cotton to be delivered only upon return of this receipt properly indorsed. This cotton is received and this receipt issued for the purpose of making same readily and conveniently available as collateral security for a loan. No. of Bales 32, Marks LAC No. [Signed] The Cotton Warehouse Company by T. E. Ellis, Secty. & Treas.” The defendant’s answer was a mere denial of the material allegations of the plaintiff’s petition. Upon the trial the plaintiff introduced evidence tending to prove its case as laid in the petition; the defendant offered no evidence, and the jury returned a verdict in favor of the plaintiff for $18,800. The defendant moved for a new trial on the usual general grounds and sixty-five additional grounds, and now excepts to the judgment overruling the motion. By a cross-bill of exceptions the plaintiff excepts to a ruling excluding from the jury certain additional evidence offered.
    Anderson, Rountree & Crenshaw, Bryan & Middlebrooks, for plaintiff in error.

      J. K. Jordan, contra.
   Luke, J.

(After stating the foregoing facts.) The Court of Appeals certified to the Supreme Court the following questions: “1. The Bank of Harrison, on June 26, 1920, bought from the Continental Trust Company, for cash, a promissory note for the principal sum of $5,000. The note was executed on June 26, 1920, by ‘The Cotton Warehouse Company,’ and was payable sixty days after date to itself or order, .and by it was indorsed in blank. Attached to the note as collateral security was a promissory note executed by ‘The Ellis Cotton Company/ payable to itself or order, and by it indorsed in blank. Attached to the Ellis Cotton Company note, as collateral security to it, was a warehouse receipt of ‘The Cotton Warehouse Company/ which represented that thirty-two bales of cotton marked ‘L. A. C.’ had been deposited in the warehouse of ‘The Cotton Warehouse Company/ and that this cotton was in the actual possession of said warehouse company at the time (to wit, June 26, 1920) when the Bank of Harrison bought the aforesaid note from the Continental Trust Company. Under these facts, was there an implied warranty by the Continental Trust Company that the thirty-two bales of cotton, described and symbolized by the warehouse receipt, were in existence and in the warehouse of ‘The 'Cotton Warehouse Company’ on June 26, 1920?

“2. If an affirmative answer is given to the foregoing question, then an answer to the following question is requested: Under the facts stated in the previous question, where the Bank of Harrison brings suit against the Continental Trust Company for damages for a breach of an implied warranty, and alleges that the trust company warranted that the thirty-two bales of cotton were in existence and in the custody of the warehouseman on June 26, 1920, and that the trust company ‘breached such warranty, . . for that none of such cotton was in existence nor in the custody of said warehouseman’ on June 26, 1920, and where the evidence fails to affirmatively show that such cotton was not in existence, or that it was not in the custody of the warehouseman, but where the evidence does show that even if the cotton had been in the Custody of the warehouseman, it could not have been delivered to the holder of the warehouse receipt for the cotton, because the receipt did not bear the tag numbers, which were the only means of identifying the cotton, is the plaintiff under its pleadings entitled to recover?”

Both of these questions were answered in the affirmative by a majority of the Supreme Court. For full opinion see 162 Ga. 758 (134 S. E. 775). This ruling disposes of the controlling issue, and, under it and the evidence adduced on the trial, the verdict for the plaintiff was demanded.

The rulings stated in headnotes 2 to 15 inclusive need no elaboration. The grounds of alleged error not covered by them aré in part too defective to present any question for decision by this court, and none of these grounds are possessed of sufficient merit to require further discussion here.

Judgment affirmed on main bill; cross-bill dismissed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    16295.
    Tennille Banking Co. v. Continental Trust Co.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Complaint; from Fulton superior court — Judge Ellis. January 24, 1925.

      E. W. Jordan, Hardwick & Jordan, for plaintiff.

      Anderson, Rountree & Crenshaw, Bryan & Middlebrooks, for defendant.
    Warehousemen, 40 Cyc. p. 425, n. 15 Dew.
   Luke, J.

The decision of the vital issue in this ease is controlled by the ruling in the first headnote and subdivision thereof, in the case of Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149 (134 S. E. 775). See Tennille Banking Co. v. Continental Trust Co., 162 Ga. 766 (134 S. E. 778). Though the judgment in the Bank of Harrison case, supra, is affirmed by this court, the judgment in the present case, because of a different verdict having been rendered in the trial court, is

Reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17014.
    Newton, administrator, v. Roberts.
    Appeal and Error, 4 O. J. p. 269, n. 13.
    Bills and Notes, 8 O. J. p. 213, n. 11; p. 228, n. 98; p. 241, n. 99; p. 869, n. 27; p. 992, n. 21.
    Contracts, 13 C. J. p. 325, n. 49: p. 305, n, 66.
   Broyles, C. J.

1. Where a general demurrer to a petition was overruled, and the case proceeded to a verdict in favor of the plaintiff, and the defendant filed a motion for a new trial, and, while the motion was pending in the trial court, the defendant sued out a direct bill of exceptions, assigning error on the judgment overruling the general demurrer to the petition, and where no exceptions pendente lite to that judgmenl were filed and certified before the bill of exceptions was pre sented to the judge, the bill of exceptions will not be dismissed by this court, where it was presented to the judge within 30 days of the date of the judgment complained of. Newton v. Roberts, 163 Ga. 135.

Decided December 14, 1926.

Complaint; from city court of Hall county — Judge Sloan. November 17, 1925.

Dean & Wright, for plaintiff in error.

B. P. Gaillard Jr., A. C. Wheeler, contra.

2. A negotiable promissory note which recites' that it is given for “value received” is, prima facie, presumed to be based upon a full legal consideration. Andrews v. Chason, 15 Ga. App. 103 (1) (82 S. E. 636), and citations.

3. “Slight consideration is sufficient to sustain a contract, and courts of law will not look closely into its adequacy.” Austell v. Rice, 5 Ga. 472 (2).

4. The motive which induces one to execute a promissory note is no part of the.consideration. Austell v. Rice, 5 Ga. 472 (5).

5. It is well settled by numerous decisions of the Supreme Court and of this court that services rendered, or to be rendered, to the maker of a negotiable promissory note are sufficient consideration to support the note.

6. In the instant case the negotiable promissory notes sued on recited that they were executed for “value received.” Further on in each note was the statement: “This note given for services, love and natural affection.” Conceding,’but not deciding, that love and natural affection alone are not sufficient consideration to support the notes, they are supported by the other considerations recited therein, to wit, for “value received,” and for “ services; ” and the words “ love and natural affection” should be treated as mere surplusage. The court did not err in overruling the general demurrer to the petition, or in overruling the special demurrer which called upon tne plaintiff to state “how much of said notes was given for services and how much of said notes was given for natural love and affection.”

Judgment affirmed.

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


author: Per Curiam.

text:
    17121.
    NEWTON, administrator, v. ROBERTS.
    A legal consideration is stated in a promissory note which contains the usual recital as to “value received,” and the recital that it is given “for services and love and affection.” The inclusion of the words “love and affection” does not render its consideration illegal.
    Decided December 14, 1926.

      Complaint; from city court of Hall county — Judge Sloan. January 2, 1926.

      Dean & Wright, for plaintiff in error.

      B. P. Gaillard, A. C. Wheeler, contra.
   Per Curiam.

Mrs. A. H. Roberts sued the administrator of the estate of Mrs. J. C. Newton upon a promissory note, the material portions of which are as follows: “$1,500.00. Candler, Ga., June 29th, 1916.' November 15th after date I promise to pay to the order of Mrs. Annie H. Roberts fifteen hundred dollars, for value received, payable at Gainesville, Ga., with interest after maturity until paid at eight per cent, per annum, with all costs of collection including ten per cent, as attorney’s fees, if collected by law or through an attorney at law. . . This note given for services and love and affection. Given under the hand and seal of each party. [Signed]. Mrs. J. C. Newton (Seal). Witness: L. F. Roberts, G. W. Floyd.” The jury rendered a verdict in favor of the plaintiff. The controlling issue raised by the defendant is upon the last sentence in the note, to wit, “This note given for services and love and affection;” the defendant contending that the words “love and affection” expressed an illegal consideration. This contention was urged in the motion for a new trial and relied upon for a reversal of the judgment overruling the motion.

We do not agree with this contention. The fact that the note recites that it was given for “services and love and affection” (italics ours) will not render the consideration illegal. Indeed, the testimony was sufficient to authorize the -jury to find that the real consideration of the note was the services rendered by the payee of the note to the payor. For no reason pointed out in the record can we say that justice has not been done or that the plaintiff in error has not had a legal trial of his case. The trial judge, having approved the verdict, properly overruled the motion for a new trial.

The demurrers to the petition were properly overruled. Newton v. Roberts, 36 Ga. App. 156 (136 S. E. 98).

Judgment affirmed.

Broyles, G. J., and Lulee, J., concur. Blood-worth, J., absent on account of illness.


text:
    17210.
    GEORGIA STATE BANK v. PEACOCK et al.

    1. It appearing that the notes sued on, which were signed in the name of Farmers & Merchants Warehouse, a partnership, were given by its manager after its dissolution, that the defendants, who had-been members of the partnership, neither authorized nor ratified the giving of the notes, that the original payee had notice of the dissolution, and that the transferee suing on them took them after maturity, the notice to the original payee was notice to the transferee and is binding upon it.
    2. The demurrers to the answers were properly overruled and the refusal to grant a new trial was not error.
    Agency, 2 C. J. p. 859, n. 78.
    Appeal and Error, 4 O. J. p. 852, n. 56.
    Bills and Notes, 8 O. J. p. 476, n. 14.
    Partnership, 30 Cyc. p. 591, n. 21; p. 593, n. 27.; p. 651, n. 74; p. 667, n. 9; p. 673, n. 38; p. 676, n. 53 New; p. 679, n. 69.
    Decided December 14, 1926.
    Complaint; from Pulaski superior court — Judge Higlrsmith presiding. January 6, 1926.

      Lawson & Ware, for plaintiff. H. E. Coates, for defendants.
   Per Curiam.

The Georgia State Bank brought suit upon two promissory notes, against Peacock, Henry, Sommer, Duggan, Sparrow, and Caldwell, trading under the name and style of Farmers & Merchants Warehouse. The petition shows that the original payee of the notes was the Hawkinsville Bank & Trust Company, and that they were transferred by it to the plaintiff; and that they were signed, not by the defendants individually, but in the name of “Farmers & Merchants Warehouse (L. S.) per Sparrow, Mgr.” Verdict and judgment by default were rendered against all the defendants except Peacock and Sommer. These two, in their separate answers and the amendments thereto, each alleged in substance that he paid to J. H. Caldwell, then acting for the Farmers & Merchants Warehouse, $200 in full and final settlement of his liability to said warehouse, and that since said final settlement he had not authorized said warehouse to contract any debts of any kind for him, and he had not ratified any acts of said warehouse subsequent to said final settlement; that at the time Caldwell received this $200 he was not only acting for Farmers & Merchants Warehouse, of which partnership he was a member, but was also acting as cashier of the Hawkinsville Bank & Trust Company, the original payee of the notes sued on; that on the day on which said $200 was paid the-Farmers & Merchants Warehouse its existence as a partnership was formally dissolved, and that the plaintiff, Georgia State Bank, took the notes sued on after maturity. In addition to these allegations of Peacock and Sommer, Peacock’s answer as amended contained an allegation that-his entire connection with the warehouse up to the time of the dissolution was as agent for the First National Bank, which was the real partner in the warehouse. The plaintiff demurred to these answers, the demurrers were overruled, and the plaintiff excepted pendente lite and assigns error thereon. On the trial the “jury returned a verdict in favor of the plaintiff except in the case of Z. Y. Peacock and Sam Sommer, in whose favor the jury found,” and judgment was accordingly entered. The plaintiff filed a motion for a new trial, which was overruled, and upon this ruling the'plaintiff assigns error.

The evidence-discloses that just -prior to the organization of the partnership in which the defendants were partners, the Hawkins-ville Bank & Trust Company and the First National Bank of Hawkinsville had no warehouse connections, and were losing business as a result thereof; that Caldwell, cashier of the Hawkins-ville Bank & Trust Company, and Mr. Peacock, connected with the First National Bank, decided to organize the warehouse partnership, and took in with them as partners the other defendants; that one of the partners, Mr. Sparrow, was manager of the warehouse; that the warehouse was not a success; that Mr. Caldwell, a member of the partnership and also cashier of the bank which was the original payee of the notes sued on, came to Mr. Peacock and suggested closing up the warehouse business, said $200 would close it up, and was handed $200 by Mr. Peacock for the purpose of paying Peacock’s part of the indebtedness of the warehouse; that the defendant Sam Sommer gave a check for $200 to pay his part of the warehouse debts, and that this check had written on it “assessment in full (final),” the check and the notation thereon being written by Mr. Caldwell, cashier of the original payee bank, and signed by the defendant Sommer with the understanding that “this assessment was to close out the matter entirely;” that Mr. Sparrow, signing his name as manager, gave the notes sued on after these final payments to cover the partnership debts, and after the alleged dissolution of the partnership, and that the giving of said notes was not authorized nor ratified by the defendants Peacock and Sommer. Tbe suit was brought five years after the alleged dissolution. There was ample evidence to show that the partnership was dissolved before the giving of the notes sued on, and that Mr. Caldwell, the cashier of the original payee bank, was the man who instigated the move to “wind up the business” of the partnership.

“A partnership may be dissolved at any time by the mutual consent of the parties” (Civil Code, § 3162), and a dissolution “absolves the partners from all liability for future contracts and transactions.” Civil Code, § 3164. “There was some evidence authorizing the finding that the partnership had been dissolved as alleged. . . This court is without authority to set aside a verdict on the ground that it is unsupported, when there is any evidence to authorize it.” Bennett v. Watson, 31 Ga. App. 368 (1) (120 S. E. 802). Whether or not the payments made by the defendants were final, whether or not the partnership was dissolved before the notes sued on were given, and whether or not the defendants did or said anything which authorized or ratified the giving of the notes sued on, were all questions of fact for the jury, under proper instructions from the court, and there was evidence to authorize the jury’s finding thereon in favor of the defendants.

The other material questions raised by the motion for a new .trial are based on the contention that notice to Caldwell of the dissolution of the partnership was not notice to the Hawkinsville Bank & Trust Company, the original payee of the notes sued on. The evidence as a whole and The following evidence of the defendant Peacock in particular authorized the jury to find that Caldwell was acting for the Hawkinsville Bank & Trust Company, the original payee and transferor of the notes sued on: “The Hawkinsville Bank & Trust Company and the First National Bank were entirely out of the cotton business. We had no warehouse connections, losing all the business, and after consulting with Mr. Caldwell (cashier of the Hawkinsville Bank & Trust Company) we decided we were going to burst into it some way or other, and the organization of the warehouse was the result.' . . I thought it was an undertaking of the Hawkinsville Bank & Trust Company and the First National Bank. ■ . . I think Mr. Caldwell was at that time cashier of the Hawkinsville Bank & Trust Company. He was with them I know.” This arrangement having been made between the representatives of the two banks relative to the organization of the warehouse, and the banks being the ones referred to as being “entirely out of the cotton business”- and wanting to “burst into it some way or other,” the evidence strongly indicated that the bankers were acting for their banks; and to corroborate this conclusion one of them testified that he was acting for his bank. Caldwell being the member of the partnership who proposed to “wind up the business” of the partnership, and who received the money from defendants therefor, and also being cashier of the original payee bank which took the notes of the warehouse company after the alleged dissolution, it was reasonable for the jury to conclude that the bank had notice of the dissolution. “Notice to the agent of any matter connected with his agency is notice to the principal.” Civil Code, § 3599; Brobston v. Penniman, 97 Ga. 527 (25 S. E. 350); Singleton v. Bank of Monticello, 113 Ga. 528 (2) (38 S. E. 947); Taylor v. Felder, 3 Ga. App. 287 (59 S. E. 844). It is admitted that the Georgia State Bank “is not an innocent holder of the notes sued on,” having received them after maturity.

It appearing that the notes sued on were given by the manager of the partnership after its dissolution, that the defendants neither authorized nor ratified the giving of the notes; that the original payee had notice of the dissolution, and that the transferee took the notes after maturity, the notice to the original payee ivas notice to the transferee and is binding upon it.

None of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below. The .court properly overruled the demurrers to the amended answers, and the refusal to grant a new trial was not error.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., absent on account of illness.


text:
    17290.
    SEABOARD AIR-LINE RAILWAY COMPANY v. SHENSKY.
    The petition as amended stated a cause of action against the railway company for the mashing of the plaintiff’s hand between the coupler and the dead-block of two freight-cars which, in the discharge of his duty as a brakeman, he was attempting to couple.
    The paragraph of the petition to which photographs of couplers were attached as exhibits was not subject to the special demurrer.
    The charge of the court as to the absolute duty of a railroad company to equip its cars with couplers that may be uncoupled by means of a lift-lever on the outside of the car was not subject to the exceptions taken.
    Parts of the charge which, when taken from the'ir context, may be subject ■ to criticism should be considered in connection with the remainder of the charge; and when so considered, several of the excerpts complained of in this case were not harmful. The charge was to some extent confused and self-contradictory, but not sufficiently so to require another trial. As a whole it was full and fair and clearly presented the material issues.
    Failure to charge as to the form of a verdict for the defendant, or to instruct the jury “to return their findings separately upon the separate counts” of the petition, is not cause for a new trial.
    The evidence authorized the verdict, and no cause for a reversal is found in any of the grounds of the motion for a new trial.
    Appeal and Error, 4 C. J. p. 852, n. 56; .p. 905, n. 41; p. 1068, n. 22; p. 1069, n. 23; p. 1075, n. 52.
    Master and Servant, 39 C. J. p. 385, n. 52.
    New Trial, 29 Cye. p. 791, n. 22; p. 832, n. 60.
    Trial, 38 Oye. p. 1778, n. 73; p. 1779, n. 75, 76.
    Decided December 14, 1926.
    Damages; from McIntosh superior court — Judge Sheppard. February 17, 1926.
    Application for certiorari was made to the Supreme Court.

      C. B. Conyers, for plaintiff in error.

      Shelby Myrick, Edwin A. Cohen, contra.
   Per Curiam.

Shensky sued the railway company for damages for alleged personal injuries. His petition as amended contained three counts. In the first count he alleged: that at the time he was injured he was working as a brakeman on a freight-train of the defendant company which at the time was engaged in interstate commerce; that while endeavoring to uncouple two cars in the train by the direction of the conductor of the train (the plaintiff having to go between the two cars because the coupler between them was defective and he could not uncouple the cars without so doing), his right hand was mashed between the coupler and the dead-block of the car, and was seriously, painfully,, and permanently injured. The negligence of the defendant alleged in this count was in using on its cars couplers which could not be uncoupled without a brakeman or switchman going between the cars, in violation of the safety-appliance acts of Congress. The second count was substantially the same as the first count, except that the negligence alleged was the act of the engineer of the train in backing it against the plaintiff while he was between the cars. The third count was - similar to the other two, except that its ground of negligence was the failure of the defendant to have its cars equipped with automatic couplers equal in kind to those in general use by other railroads. General and special demurrers to the 'petition were overruled, and proper exceptions were taken. The trial then proceeded to a verdict and judgment in favor of the plaintiff for $5,500; the defendant’s motion for a new trial was overruled, and it excepted.

1. A special demurrer attacked paragraph 10 of the second count of the petition, which paragraph recited that the petitioner had attached, as exhibits to the count, three photographs of a Simplex coupler; that the photograph marked “Exhibit A” showed the coupler with the “knuckle” out, so as to disclose the “lift pin” and the “lock pin;” that the photograph marked “Exhibit B” showed .the coupler with the “knuckle” in place; that the photograph marked “Exhibit 0” showed the “lock pin” of the coupler raised up when the “lift pin” was raised by the “lift lever;” that if the Simplex coupler on the defendant’s train had been in good order, the lock pin would have been raised up when the lift pin was raised up by the lift lever, as shown in the photograph marked “Exhibit C,” the knuckle would have been released and would have opened, and the cars would have become uncoupled. The special demurrer to this paragraph was as follows: “Defendant demurs specially to paragraph 10 of second count, and moves the court to strike the same, because'it does not appear therefrom that the coupler therein described (photographs of which are alleged to be attached) is the coupler which it is claimed injured plaintiff’s hand, but, on the contrary, the reasonable inference is that said paragraph is dealing with some other and different coupler from that involved in the transaction in question.” It will be observed that this demurrer does not attack the attaching of the photographs to the petition as exhibits, bnt it asks that the entire paragraph be stricken for the reasons given in the demurrer. The demurrer does not raise any of the objections now raised in the brief of counsel for the plaintiff in error, viz.: “If the attaching to the petition of photographs was to be allowed, it will permit the plaintiff to attach photographs and have them before the jury without any proof .as to their being genuine or correct. The inclusion of these photographs in the petition was not necessary to the cause of action; and if they were at all germane to the case, they should have been introduced in evidence upon proper proof. Their inclusion in the petition has the effect of permitting the plaintiff to plead the proof.” Under this state of facts the overruling of this special demurrer was not error. The other demurrers to the petition are not argued or referred to in the brief of counsel for the plaintiff in error, and are treated as abandoned.

2. No material error appears in any of the rulings upon the admissibility of evidence.

3. Under repeated rulings of the Supreme Court of the United States, the court did not err, for any reason assigned, in charging the jury that it was “an absolute duty upon the part of this railroad and every other railroad to equip its cars with couplers which can be uncoupled without the. necessity of men going in between the ends of the cars; that is to say, couplers that can be uncoupled by means of a lift lever on the outside of the car. . . This is an' absolute duty upon the part of the railroad in this case.”

4. Several excerpts from the charge of the court, standing alone, are perhaps subject to criticism as intimating an opinion as to the facts of the case, but, when these excerpts are considered in the light of their context and the charge as a whole, it does not appear that the jury could have understood that the court was expressing or intimating an opinion as to what had been proved in the case. It is well settled that in considering whether excerpts from a charge are subject to the criticism that they contain an expression or intimation of opinon upon the facts of the ease, they should be considered in the light of the entire charge. Olliff v. Howard, 33 Ga. App. 782 (127 S. E. 821), and citations.

5. The plaintiff’s petition contained three lengthy counts, and several Federal statutes were involved. The court’s charge was necessarily long, and while it was to some extent confused and self-contradictory, it was not sufficiently so to require another hearing of the case. The charge as a whole was full and fair and clearly presented the material issues to the jury.

6. In view of the facts of the case and the entire charge of the court, the failure to instruct the jury as to the form of their verdict in the event they should find for the defendant is not cause for a new trial.

7. The failure of the court to instruct the jury “to return their findings separately upon the separate counts in the plaintiff’s petition” does not require another hearing of the case.

8. The court’s charge upon the, doctrine of “res ipsa loquitur” was applicable to the facts of the case, and, although somewhat confused, contained no material error.

9. Under all the particular facts of the case this court can not hold that the verdict (for $5,500) was excessive.

10. After a careful consideration of all the remaining grounds of the amendment to the motion for a new trial, we find in none of them cause for a reversal of the judgment below.

11. The evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concurs. Blood-worth, J., absent on account of illness.


text:
    17313.
    CITY OF ALBANY v. SIMON.
    1. The amended petition was not subject to the demurrer.
    2. The ante litem notice to the city met the requirements of the law, in that it was sufficient to “enable the municipality to fully investigate the claim and to determine whether it [preferred] to adjust the claim without suit or to contest its validity in the courts;” and it corresponded with the petition “in all substantial respects as to the matters infoi'mation of which” was required to be given.
    3. The evidence amply authorized the jury to find that the defendant had damaged the plaintiff in the manner alleged; and there was no reversible error of law.
    Appeal and Error, 4 O. J. p. 852, n. 56; p. 905, n. 41; p. 1130, n. 61.
    Municipal Corporations, 28 Cyc. p. 1323, n. 4; p. 1454, n. 52; p. 1465, n. 36; p. 1494, n. 89.
    Decided December 14, 1926.

      Damages; from city court of Albany — Judge Clayton Jones. March 13, 1926.

      James Tift Mann, for plaintiff in error.

      Milner & Farkas, contra.
   Per Curiam.

Mrs. Rosalie B. Simon sued the City of Albany for. damages, alleging in substance that the city, in grading certain streets, caused rainwater to collect in large quantities on Broad street, just opposite her property, “and, in order to open up Broad street, inserted a drain in front of petitioner’s property, leading from the street in front of said property to petitioner’s lots, and thereby draining said water on to petitioner’s property,” thus damaging her lots and the houses thereon. A demurrer to the petition as amended was overruled. The jury rendered a verdict for the plaintiff. The defendant assigns error on the overruling of its demurrer and of its motion for a new trial.

The petition was not subject to the demurrer interposed.

The ante litem notice to the city of the plaintiff’s claim met the requirements of the law, in that it was sufficient to “enable the municipality to fully investigate the claim and to determine whether it [preferred] to adjust the claim without suit or to contest its validity in the courts.” Kennedy v. Mayor &c. of Savannah, 8 Ga. App. 98 (68 S. E. 652). The notice was “a substantial compliance with the act.” Langley v. Augusta, 118 Ga. 601 (45 S. E. 486, 98 Am. St. Rep. 133). An ante litem notice to a municipality is not necessarily as specific as the petition; but in the instant case the notice and the petition did “correspond in all substantial respects as to the matters information of which” was required to be given. Langley v. Augusta, supra.

Under the facts of the case the charge as to nuisance was not error. Maguire v. Cartersville, 76 Ga. 84; Massengale v. Atlanta, 113 Ga. 966 (39 S. E. 578); Langley v. Augusta, supra.

There was ample evidence to show that the acts of the city, as alleged in the petition, resulted in damage to the plaintiff. The preponderance of the evidence as to the cause of the damage might be summed up in the following testimony of one of the witnesses who had been a tenant on the property in question: “I moved out on account of the water, it got so bad; it got worse because they graded the streets; that was the cause of more water there. . . That culvert [built by the city] . . threw the water on the lot.” There was other' evidence as to the canse and extent of the damage.

The evidence being sufficient to authorize the verdict, and there being no reversible error of law shown in the grounds of the amendment to the motion for a new trial, this court will not interfere with the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., absent on account of illness.


text:
    17440.
    SWOPE v. McKENNEY.
    An exception 'to tlie refusal to grant a nonsuit will not be considered, where a verdict for the plaintiff is complained of as not supported by evidence.
    The instruction to the jury that they should find for the plaintiff the costs of the suit, if their verdict was for the plaintiff, was error, since, in an ordinary civil case it is the duty of the court, and not of the jury, to assess the costs; but this error does not require a new trial.
    No cause for a new trial is shown by the exceptions to other parts of the charge of the court or to rulings upon the admissibility of evidence; and the verdict was authorized by the evidence.
    Appeal'and Error, 4 C. J. p. 670, n. 91 New; p. 852, n. 56; p. 905, n. 41; p. 1032, n. 36; p. 1046, n. 61 New.
    Costs, 15 C. J. p. 170, n. 28; p. 171, n. 33.
    New Trial, 29 Cyc. p. 832, n. 60.
    Trial, 38 Cyc. p. 1779, n. 75, 76.
    Decided December 14, 1926.
    Damages; from Muscogee superior court — Judge McLaughlin. May 5, 1926.

      Slade & Swift, J. F. Terry, for plaintiff in error.

      Worsley & Flournoy, contra.
   Per Curiam.

1. The exception to the judgment denying the motion for a nonsuit will not be considered, since thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant’s motion for a new trial included the ground that the verdict was contrary to the evidence and without evidence to support it.

2. The rulings upon the admissibility of evidence, complained of in grounds 4 and 5 of the motion for a new trial, were not error.

3. The excerpts from the charge of the court, as set forth in grounds 6, 7, 8, and 9 of tbe motion for a new trial, when considered in the light of the entire charge' and the facts of the case, are not erroneous for any reason assigned. The charge was exceedingly full, and ably and fairly presented the issues in the case, the contentions of both parties, and the law applicable thereto.

4. The motion for a new trial complains of the following charge: “If you believe, under the rules of law, that the plaintiff is entitled to recover, the form of your verdict would be 'We, the jury, find for the plaintiff’ so many dollars, 'together with costs,’ in one lump sum, together with costs of suit. However, if you do not believe the plaintiff' is entitled to recover, then it would be your duty to find for the defendant, in which event the form of your verdict would be, 'We, the jury, find for the defendant.’” The instruction that the jury should find for the plaintiff the' costs of the suit if they found a verdict in her favor was error, as in an ordinary civil suit it is the duty of the court, and not of the jury, to assess the costs. Southern Express Co. v. Maddox, 3 Ga. App. 223 (2) (59 S. E. 821). This error, however, does not require another hearing of the case.

5. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error. .

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Blood-worth, J., absent on account of illness.