text:
    17950.
    SPEIR & COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY.
    1. Where goods are transported by a common carrier under an order-notify bill of lading, the delivery of the goods by the carrier to the person directed to be notified, without a surrender of the bill of lading, amounts to a conversion of the property by the carrier, and renders it liable in trover to the shipper.
    2. Under an ordinary contract of open shipment, providing for unconditional delivery at a private side-track of the consignee, the carrier completes its contract for carriage and delivery by placing the goods upon the consignee’s side-track as directed. Georgia Ootton Co. v. Central of Ga. Ry. Go., 19 Ga. App. 576, 580 (91 S. E. 933). This is true for the reason that in such a case the carrier has done all it has agreed to do, and there is no reason why the person to whom the goods are consigned can not appropriate them without infringing upon the rights of the shipper. It does not necessarily follow, however, that the rule just stated would have application where the goods, although routed to a private siding, are transported under an order-notify bill of lading. Upon this proposition the authorities would seem to be in conflict (Ward v. Pere Marquette Ry. Co.,'231 Mich. 323 (204 N. W. 120); Quinn-Sheperdson Co. v. Great Northern Ry. Co., 141 Minn. 100 (169 N. W. 422), and it might be the rule that in such a ease the placement of the goods upon the side-track designated amounts to nothing more than a tender of delivery upon compliance by the order-notify consignee with the terms of the affreightment contract, since such a tender would not justify their unlawful seizure in. violation of the terms of the bill of lading. Levers v. Atchison, T. & S. E. Ry. Co., 22 N. M. 599 (166 Pac. 1178, L. R. A. 1918A, 294) ; Conrad Sehopp Eruit Co. v. Missouri Pac. R. Co., 115 Mo. App. 352 (91 S. W. 402) ; QuinnSheperdson Co. v. Great Northern Ry. Co., supra. But, however this may be, in an order-notify shipment, where neither the written contract of affreightment nor the prevailing custom is such as to authorize delivery upon a private side-track of an order-notify consignee, the unauthorized placement of the goods on such a siding would not of itself amount to a delivery, since the consignee in such a case.is not compelled to accept such a tender of the goods, and until he does so, the carrier remains in custody thereof and continues to be responsible therefor. Such a placement could amount to nothing more than a tender of delivery upon compliance by the order-notify consignee with the terms of the affreightment contract, and would not justify their unlawful seizure by such consignee in violation of the terms prescribed by the bill of lading.
    3. In the instant case the record would not authorize a finding in favor of the plaintiff, either upon the theory of a delivery arising from a tender of the goods by the carrier and their actual acceptance by the order-notify consignee, or upon the theory that the contract of shipment required delivery upon the private side-track of the order-notify consignee, and that in thus placing the goods as directed the delivery became complete. Not only is there an entire absence of proof going to indicate that the tender of the goods for acceptance was consummated into a delivery by an actual acceptance of the goods on the part of the order-notify consignee, but, on the contrary, it appears that the shipment was in terms rejected by the order-notify consignee, and the shipper and the carrier were notified thereof prior to the placement of the car upon the side-track. Not only is there an entire absence of proof by the written terms of the contract of affreightment, or by previous conduct of the parties to the shipment amounting to an established custom, that the delivery of the goods was contemplated to be completed by placing them on a private siding of the order-notify consignee, but there is also an entire absence of proof that the siding 'on which the goods were placed was in fact a private side-track under the control of the order-notify consignee.
    4. Even were it to be assumed that permission by the carrier for an order-notify consignee to enter a car for the purpose of inspection could • amount to a conversion by the carrier (see Hines v. Scott, 112. Tex. 506 (248 S. W. 663); Conrad Scliopp Eruit Co. v. Missouri Pac. R. Co., supra; Quinn-Sheperdson Co. v. Great Northern Ry. Co., supra), the circumstances proved by which it was sought to indicate that an inspection of the car had been made in no wise indicate that the inspection, if made, was made with the knowledge or consent of the defendant. Nor would the evidence that the contents of the car had been subsequently jointly checked over and found intact by the agent of the plaintiff and the order-notify consignee, in the presence of an agent of the defendant, amount to proof of a conversion, since the purport of such jointly conducted check and inspection would be to indicate that the goods in fact had not been delivered.
    5. Under the foregoing rulings, the court did not err in directing a verdict for the defendant.
    Decided October 14, 1927,

      Action for damages; from city court of Atlanta—Judge Dorsey. November 2, 1926.

      Winfield P. Jones, for plaintiffs.

      ■ Alslons Alston, Foster & Moise, W. II. Sibley, for defendant.
   Jenkins, P. J.

George C. Speir & Company brought suit in trover against the Atlantic Coast Line Railway Company for the value of 69 bales of cotton linters, alleged to have been wrongfully converted by the defendant. It is alleged that the cotton linters sued for were shipped from Hopewell, ARrginia, to Clio, South Carolina, consigned to the order of the plaintiff, “notify A. J. Calhoun, Jr., at Clio.” It is alleged that the cotton linters were originally purchased by the plaintiff from Calhoun, and shipped to the Virginia Cellulose Company, at Hopewell, Virginia, which company rejected the shipment, and that the plaintiff then reshipped the cotton to itself at Clio, drawing on Calhoun for the original purchase price, with the bill of lading attached to the draft. The proof shows that when the car containing the cotton arrived at Clio the railway company’s agent notified Calhoun, who stated that he would not accept the shipment, and that Calhoun then wired the plaintiff that he would not accept the shipment or pay the draft. Subsequently the car was placed on a side-track on the right of way of the railway companjq adjacent to Calhoun’s premises, which track was used for the convenience of both Calhoun and the public. Upon receipt of notice from Calhoun that he would not accept the. shipment, the plaintiff sent to Clio its agent, Bickmore, who found the car on the side-track mentioned. Calhoun, in the presence of Bickmore, opened the car of cotton, and some samples were removed for the agent of the plaintiff. The testimony as to whether the agent of the plaintiff entered the car or not is in dispute, the agent contending that he did not enter the car, and did not consent to Calhoun opening the car. It does not, however, appear that the agent objected to the car’s being entered. Subsequently the car was removed from.the side-track and returned to the, freight depot of the railway company, where it was opened in the presence of Bickmore, Calhoun, and the agent of the railway company, and its contents checked. It was then found that all of the cotton originally shipped was in the car and accounted for. The testimony as to the condition of the seals on the car on its arrival at Olio is in dispute; the defendant’s station agent testifying that the seal on one door of the car was broken and the car door fastened with nails when the car arrived, while the agent of the plaintiff testified that he was informed by the station agent that his seals record showed both seals intact when the car arrived. It appears, without dispute, that the seal on one door was broken when Calhoun entered the car in the presence of the plaintiff’s agent, and that the door was nailed up. After the car had been opened and .its contents checked, neither' plaintiff nor Calhoun would accept the shipment, and it was subsequently sold by the railway company for freight charges and purchased by the plaintiff. It is contended by the plaintiff that the railway company’s act in placing the car on its side-track, which Calhoun contended he had “first call” on, amounted to a conversion of the cotton by placing the shipment in the possession and control of Calhoun without the surrender of the bill of lading. Upon the close of the evidence, upon motion of the defendant’s counsel, the court directed a verdict in the defendant’s favor; to which action exception is now taken. While the plaintiff failed to offer any proof going to show that the side-track in question was a private siding under the control of Calhoun, it does except to the admission of testimony for the defendant by its station agent that the side-track upon which the car was placed after its arrival at Clio “is the right of way of the company; it is a public side-track.” Such testimony, it is contended, “was necessarily based upon hearsay or information secured by the witness from other sources than his own knowledge, and was not evidence of any deeds, contracts, private writings, or court records, such as was necessary in order to establish as a matter of law or prove as a matter of fact that the said side-track was the right of way of the defendant railroad company, or such a public right of way as that it lost its character as a private siding or private side-track.”

Judgment affirmed;

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    17962.
    MARYLAND CASUALTY CO. et al. v. RADNEY.
    Erom the evidence of the claimant for compensation, the industrial commission was authorized to find that, under his contract with the defendant lumber company, the company did not have or assume the right to control the time and manner of his work of hauling logs to the company’s mill, and that, therefore, the relation of employer and employee did not exist between the parties; the claimant testifying that he furnished Ms own truck and bore the expense of its operation, and that he worked such hours as suited him, chose his own route of travel, and received pay at a stipulated price per thousand feet of logs hauled. The judgment of the superior court, setting aside the commission’s award, which deMed compensation, was therefore erroneous.
    Decided October 14, 1927.
    Appeal; from Laurens superior court—Judge Camp. January 15, 1927.

      Harris, Harris & Popper, for plaintiff in error.

      J. 8. Adams, contra.
   Jenkins, P. J.

The only quéstion to be decided is whether the claimant for compensation was an employee of the defendant lumber company, or was an independent contractor. He was engaged in hauling logs from a tract of timber to the mill of the lumber company. He testified that he furnished his own truck and bore the expense of its operation; that he worked such hours as suited him, chose his own route of travel, and received pay at a stipulated price per thousand feet of logs hauled; that the lumber company exercised no direction or control over his work, and that he was not directed as to what particular logs to haul or as to where to place them on reaching the company’s mill.- From this evidence the industrial commission was authorized to find that, under the contract, the lumber -company did not have, or assume, the right to control the time and manner of executing the work, and that, therefore, the relation of employer and employee did not exist between the parties. Zurich General Accident & Liability Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173). Such finding of the industrial commission being authorized, if not. demanded, by the evidence, the judgment of the superior court setting aside the award denying compensation, was erroneous. The ruling here made is not in conflict with the ruling of this court in Ocean Accident & Guarantee Corporation v. Hodges, 34 Ga. App. 587 (130 S. E. 214), since it appears that in that case “evidence was also adduced which, together with the legal inferences and deductions arising therefrom, authorized a finding that the lumber company retained the right to direct Hodges, not only as to what work he should do, but how he should do it.” In that case the court properly recognized the rule that payment by piecework does not necessarily determine the character of the service (39 O. J. 1322, § 1523), but that the true test in determining whether one is engaged as a servant or occupies the status of an independent contractor ordinarily lies in the answer to the question whether or not the work is to be done according to the workman’s own methods, without being subject to the employer’s control except as to results to be obtained.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17977.
    WILKERSON v. MILAM.
    It is no defense to an action for malicious prosecution that the prosecutor acted under the advice of the prosecuting attorney, unless lie in good faith truthfully communicated to the attorney all facts known to him in relation to the charge against the accused. The jury in this case were authorized to find that the prosecutor did not do this; and the evidence authorized the verdict for damages.
    Decided October 14, 1927.
    Malicious prosecution; from Eloyd superior court—Graham Wright, judge pro hac vice. December 30, 1926.

      J. L. Wallace, for plaintiff in error. Porter ■& Mebane, contra.
   Jenkins, P. J.

When a person “in good faith truthfully communicates to the solicitor-general” all facts known to him in relation to a.criminal charge against another, and, acting on the advice of such prosecuting attorney that the facts stated constitute a violation of the law, institutes a criminal prosecution against the accused, he can not be held liable in damages for a malicious prosecution of the latter, even though it may appear on the trial that the facts stated do not constitute a crime. Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459); Woodruff v. Doss, 20 Ga. App. 639 (93 S. E. 316); Walker v. Shedden, 36 Ga. App. 259 (136 S. E. 101). In such a case, however, it may be a question of fact, for determination by the jury, whether the communication made by the 'prosecutor to the prosecuting attorney in fact constituted a true statement of all the facts known to the prosecutor. Walker v. Shedden, supra. In the instant case there was evidence from which the jury were authorized to find that the facts communicated to the prosecuting attorney by the defendant did not constitute a true statement of all the facts known to him with reference to the plaintiff’s alleged violation of the law, it appearing that the defendant informed the prosecuting attorney that the timber alleged to have been cut from his premises by the plaintifE was not cut from the portion of such premises over whicli there was a dispute as to possession, and that, according to the testimony of one witness, the defendant testified on the trial of the criminal case that the timber complained about was cut from the disputed portion of the premises.

The evidence having authorized the verdict, and no error of law being complained of, the judgment of the trial judge, overruling the defendant’s motion for a new trial, can not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    17978.
    Jones v. Continental Life Insurance Company.
    Accident Insurance, 1 C. J. p. 441, n. 97 New; p. 489, n. 6.
    Decided October 14, 1927.
    Complaint on life policy; from city court of Macon—Judge Hall. December 30, 1926.

      O. L. Clements, John R. L. Smith, Joseph LeC. Smith, for plaintiff.

      Emil E. Brill, Robert IF. Barnes, for defendant.
   Stephens, J.

1. An insurance policy which indemnifies the insured against death or disability resulting from bodily injuries effected through violent and accidental means provides for indemnity where the insured is “struck or knocked down or run over while in or on a public highway, by an automobile, or any vehicle propelled by steam, cable, electricity, naphtha, gasoline, horse, compressed' air or liquid power (excluding injuries sustained while on a railroad right of way in violation of any statute, or any regulation of the railroad company).” Reid: A “public -highway” does not include a railroad-track or the space on a railroad’s right of way between two parallel tracks of a railroad company.

2. In a suit by the insured against the insurer, to recover under the policy, where it is alleged that the plaintiff received an injury from being run over by a moving railroad-train under which he fell while walking between two parallel railroad tracks on a railroad’s right of way, the petition set out no cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    17980.
    Fulton County v. Gordon Water Company.
    Counties, 15 C. J. p. 570, n. 78 New; p. 664, n. 48; p. 667, n. 11.
    Eminent Domain, 20 C. J. p. 655, n. 46; p. 688, n. 6 New; p. 1191, n. 85; p. 1209, n. 47 New.
    Pleading, 31 Cyc. p. 78, n. 95; p. 85, n. 37 New.
   Jenkins, P. J.

1. “A county is not liable to suit for any cause of action unless made so by statute.” Civil Code (1910), § 384. The petition in a suit brought against a county must indicate that the liability sought to be established comes within the provisions of this rule. Seymore v. Elbert County, 116 Ga. 371 (42 S. E. 727). Such liability to suit may be shown by indicating that the claim arises by reason of the taking' of private property by county authorities for the benefit of the public (Bates v. Madison County, 32 Ga. App. 370, 123 S. E. 158), or by county authorities as an incident in the performance of an undertaking' by the county authorized by statute. Accordingly, where it appears that the County of Fulton is the owner of property adjacent to property owned by the State, both premises lying beyond the limits of the City of Atlanta, and the State, by legislative enactment, appropriates a sum of money to defray a portion of the expense necessary “for the purpose of extending the water-mains of the City of Atlanta, in connection with the County of Fulton, to the property of the Georgia Training School for Girls, and the adjacent property of the County of Fulton” (Ga. L. 1924, p. 19), such sum to be expended under “an agreement between Fulton County and or City of Atlanta and board of managers of Georgia Training School for Girls,” and where, pursuant to the terms of that act and the provisions stipulated therein, the county authorities,, under a contract entered into with such board of managers, proceed to the construction of a' water-main leading from such premises owned by the State, adjacent to the premises owned by the county, so as to connect with the water system of the City of Atlanta, and in so doing connect that main with a privately-owed water-main intervening between the property described and the water system of the City of Atlanta, so as to make use of such privately-owned water-main for a portion of the distance necessary to be traversed in reaching the city water supply, the county is liable for thus appropriating such private property for its own use and as an incident to the carrying out of the contract authorized by statute, in the reasonable value received by it in thus connecting with the privately-owned water-main.

2. It appearing from the petition that the plaintiff owner of such previously constructed and privately-owned water-main had, at the time of its connection with the city system, entered upon an agreement with the municipality whereby it was stipulated that “the Board of Water Commissioners may estimate the sum to be paid by any person or corporation hereafter connecting with said pipe or main, and their decision shall be final,” and it appearing from the petition that prior to the extension by the county of the water-main now in question the city had prescribed a “tapping fee” in the sum of $1000 to be paid by the county to the plaintiff as owner of the private main as compensation for connecting therewith, but that before the county had proceeded with the construction of such extension this action on the part of the city had been rescinded, and, without estimating any other sum to be paid, the city granted permission to the county to connect with the plaintiff’s private water-main free of any charge whatever, the action of the city in making the original estimate or assessment would not amount to a determination of the amount of just compensation to which the plaintiff would be entitled. Since the petition, although setting out by way of inducement the action of the city referred to, further alleges that the sum of $1000 represents the amount due it as just and reasonable compensation, the petition will be construed as an action in quantum valebat for the sum named as representing the amount reasonably and justly due the plaintiff in compensation for the appropriation and use of its property as hereinbefore indicated. Such a construction will be given the petition in accordance with the doctrine that while, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleader’s intention is not clearly manifest as to which form of action is relied upon, the courts, in endeavoring to ascertain the plaintiff’s intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action. Stoddard v. Campbell, 27 Ga. App. 363 (108 S. E. 311).

Decided October 14, 1927.

Complaint; from city court of Atlanta—Judge Dorsey. January 81, 1927.

Application for certiorari was denied by the Supreme Court.

Ralph H. Pharr, Dorsey, Shelton & Dorsey, for plaintiff in error.

Levi O’Steen, Craighead & Craighead, contra.

3. Under the foregoing rulings, the court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17986.
    ROBINSON v. COMMERCIAL CREDIT COMPANY.
    An action for malicious abuse of process is maintainable only where the process is misapplied in order to effect an object which the law does not intend it to effect; and, the legitimate purpose of bail process in trover being to require a- forthcoming bond for the property in question or imprisonment of the defendant until the property shall be produced or bond given, abuse of process was not shown by-allegations to tile effect that bail process in trover was sued out to recover an automobile to which the plaintiff therein claimed title, and that the purpose for which the process was sued out was not to recover the property, but to collect a balance due on the automobile, and that the defendant therein, by reason of his inability to give security as provided by law, was arrested and held in jail until payment of the balance due.

      Malicious Prosecution, 38 O. J. p. 384, n. 37.
    Process, 32 Cyc. p. 542, n. 88, 93 New; p. 543, n. 2, 3; p. 544, n. 11.
    Replevin,, 34 Cyc. p. 1399, n. 30.

      Malicious use, as distinguished from malicious abuse, of legal process is not shown without an allegation of want of probable cause for the proceeding.
    The court did not err in sustaining a general demurrer to the petition.
    Decided October 14, 1927.
    Action for damages; from city court o£ Atlanta—Judge Dorsey. January 31, 1927.

      J ones & Morris, for plaintiff.

      Martin, Martin & Snow, William T. Dean, for defendant.
   Jenkins, P. J.

Tlie plaintiff brought suit for damages on account of an alleged “malicious use or abuse of process” in the maintenance of an action in bail-trover against him by the present defendant. The petition was not specially demurred to as being duplicitous, but it appears from the certificate of the judge in the present record that the plaintiff admitted in open court that he did not claim a right of action for malicious use of process, but relied exclusively upon the claim of a malicious abuse of process in the maintenance of the trover proceeding. It is alleged by the petition in the present suit that the present defendant sued out bail-trover process against the plaintiff, to recover a certain automobile to which it claimed title, and that such process was sued out, not for the" purpose of recovering the property, but for the purpose of “collecting the balance due on said automobile;” and that the.present plaintiff, by reason of his having been unable to give security as provided by law, was arrested under the bailtrover proceeding and held .in jail until he paid the balance due.

The allegations of the petition did not set forth an abuse of legal process. Malicious abuse of legal process is where the plaintiff in a civil proceeding wilfully misapplies the process of the court in order to obtain an object which such a process is not intended by law to effect, as contradistinguished from malicious use of process, where the plaintiff in a civil proceeding employs the court’s process in order to execute an object which the law intends such a process to subserve, but proceeds maliciously and without probable cause. McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190); Roberts v. Willys-Overland Inc., 27 Ga. App. 304, 305 (108 S. E. 138). In the instant case.it does not appear that in the trover proceeding the court’s process was misapplied in order to obtain an object which such a process is not intended by law to effect, since “the legitimate purpose of making an affidavit to require bail in an action to recover personal property is to require bond to be given for the forthcoming of the property to answer such-judgment, execution, or decree as may be rendered or issued in the case, or, on failure thereof, to have the officer seize the property, or, if it is not to be found, to have the defendant committed to jail until the property shall be produced or bond be given, unless the defendant shall be released without security.” Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281, 282 (62 S. E. 222). The fact that the petition in the present suit may indicate that the defendant in the trover action wrongfully disposed of the property belonging to the plaintiff in that ease, prior to that action, merely shows a conversion such as would dispense with a demand and refusal; and the plaintiff in trover was not precluded thereby from claiming title to the property sued for, or from resorting to the remedy given him by law to recover his property. The petition for damages, as amended, does not indicate that the conversion of the property by -the defendant in trover was made -with the consent of the plaintiff in trover; but even if such an allegation had been made, its effect would have been merely to indicate a lack of probable cause for instituting the trover proceeding, and not that the process was being subverted to an illegal and improper purpose. The ruling relied upon by the plaintiff in error in the instant case, as made by the Supreme Court in the Brantley case, supra, in which an action for malicious abuse of legal process was upheld, is based upon its having been made to appear that the bail-trover proceeding was there employed, not for the purpose of obtaining security as provided by law, but for the purpose of compelling the defendant to enter into a new and different contract in regard to the payment of the debt, by giving up other security as a pledge therefor, in order to avoid the penalties of the bail-trover process. It was this perversion of the process to a use and a purpose which the law did not intend that it should subserve which rendered the proceeding an. abuse of legal process.

The court did not err in sustaining the general demurrer to the plaintiff’s petition.'

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18047.
    Atlantic Coast Line Railroad Co. v. Summerall.
    Carriers, 10 C. J. p. 739, n. 76 New; p. 766, n. 12 New; p. 780, n. 11; p. 790, n. 22; p. 791, n. 29.
   Stephens, J.

1. Where a passenger upon a railroad train is, without fault on his part, carried .beyond the point of destination called for by his ticket, the railroad company can not, without reference to his comfort and convenience, arbitrarily eject him from the train for nonpayment of an additional fare.

2. While a railroad company may owe no duty, .under its contract of carriage, to awaken a passenger upon his reaching his point of destination, yet where a passenger on a railroad train signifies to the conductor that he may be asleep upon reaching the station of his destination, and the passenger is informed by the conductor that it is the custom of the railroad company to awaken all passengers upon arrival at this station, and that he will be awakened upon his arrival at the station, the passenger has the right to rely upon the conductor’s assurance that this is the custom and that the custom will be complied with, and where the passenger relies upon the statements of the conductor and falls asleep and is carried beyond the station of his destination, he is, when carried beyond the station under such circumstances, not at fault.

3. Where a passenger was ejected from a train at two o’clock a. m. on a cold night in February at a place between stations, where the surroundings were dark, dismal, and forbidding, and where there was no place for his accommodation, and was compelled to walk back two miles in the dark before he could obtain transportation to the station of his destination, and where the ejection was forcibly made and accompanied with rough and profane language by the conductor, the ejection was made without any reference to the passenger’s comfort and convenience.

4. If, however, the passenger was carried beyond the point of destination by his own fault, it would be a question of fact for a jury as to whether his ejection by the conductor at the time and place and under the circumstances was improper and unjustifiable. Samples v. Ga. & Fla. Ry. Co., 143 Ga. 805 (85 S. E. 1002).

5. In a suit against the railroad company by the person ejected, to recover damages alleged to have been sustained by him, in which the foregoing •facts appeared from the petition, a cause of action was set out, and the general demurrer to the petition was properly overruled.

Decided October 14, 1927.

Damages; from Chatham superior court—Judge Meldrim. January 26, 1927.

Lawrence & Ábrahams, F. R. Youngblood, for plaintiff in error.

Oliver & Oliver, John Z. Ryan, contra.

Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.


text:
    17876.
    CALVERT v. ATLANTA HUB COMPANY INCORPORATED.
    1. “A master is liable for the wilful torts of his servant, committed in the course of the servant’s employment, just as though the master had himself committed them.” Central of Ga. By. Oo. v. Brown, 113 Oa. 414 (38 S. E. 989, 84 Am. St. R. 250). A different rule obtains as to torts committed by independent contractors. “The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.” Civil Code (1910), § 4414.
    2. One operating a collection agency whereby he undertakes the collection of debts on a commission, and whose services are in no wise subject to the employer’s control or orders as to the time, manner, or method of their execution, does not occupy the status of a servant, but must be taken as exercising an independent business. Where one contracts with an individual thus exercising an independent business, for him to do a work not in itself unlawful or attended with danger to others, the employer is not liable for- the wrongful or negligent acts of the independent contractor or his servants. Quinan v. Standard TPuel Oo., 25 Ga. App. 47 (102 S. E. 543); Zurich General A ooident <&c. Oo. v. Lee, 36 Ga. App. 248 (136 S. E. 173); Civil Code (1910), § 4414.
    3. The facts of the instant case show no such ratification of the alleged tort by the defendant as would render it liable under sections 4415 and 4416 of the Civil Code of 1910. The court did not err in granting a nonsuit.
    Master and Servant, 39 C. J. p. 1292, n. 72; p. 1315, n. 1; p. 1324, n. 11; p. 1340, n. 70.
    Decided October 15, 1927.
    Action for damages; from city court of Atlanta—Judge Dorsey. November 22, 1926.
    Mrs. Calvert sued Atlanta Hub Company for an alleged illegal and unauthorized arrest by one Kelley, who, she charged, was the agent of the defendant for the purpose of collecting a certain account due by her to the defendant, and that in making such illegal arrest and in otherwise mistreating her, he was acting within the scope of his employment with the defendant. The proof shows, according to the testimony of Carson, the general manager of the defendant company, who was introduced as a witness by and for the plaintiff, that Kelley had at one time been employed by the defendant as a collector, but that this relation was severed several months prior to the occasion on which, the plaintiff contends, Kelley illegally arrested her; that after he ceased to be an employee of the defendant, Kelley solicited from the defendant accounts for collection, Carson testifying, without objection, that Kelley then represented himself as operating a collection agency; that the plaintiff’s account of $40, along with other accounts, was turned over to Kelley by the defendant for collection on a commission basis, Kelley to receive fifty per cent, of the amount collected, and to receive nothing if no collection was made; that the defendant reserved no control over the manner or method by which Kelley undertook to make collection, and gave him no instructions with reference thereto. The plaintiff testified, that Kelley called upon her at her place of business and demanded payment of the account, telling her that he was an officer of the law and would place her under arrest unless she paid the account; that when the plaintiff informed Kelley that she did not have the money with which to pay the account, he told her to “consider herself under arrest,” showing her some sort of badge, and took her by the arm and carried her out of her place of business. He then escorted her to the place of business of an acquaintance of hers, who furnished the money to pay off the account, whereupon Kelley gave her a receipt for $40, the amount paid, and released her. The acquaintance, Rose’, who had furnished Mrs. Calvert with the necessary money to pay the account, testified: “I went down to the Hub Style store on May 19, 1925, and got a receipt;” “I asked Mr. Carson to give me a receipt showing that the bill was paid in full; he gave me the receipt;” witness informed Carson, in Kelley’s presence, of what had occurred; “Kelley was there when I went in;” Carson “at first did not seem to understand what I was talking about.” The evidence of Rose does not indicate that he asked for the return of the money paid; it appears that lie merely asked that a receipt therefor be given him, and that this request was complied with. He testified that Carson did not say anything about whether Kelley was the defendant’s agent or not; that he did not say he was the defendant’s agent, and did not say he was not. There is nothing in Eose’s testimony to indicate that any inquiry was made of Carson as to what the relationship existing between the defendant and Kelley was, or that such a question was raised. Carson, the general manager, testified, with reference to this interview, that when Eose called on him he asked if there would be any further trouble about the account; that he told Eose he did not know there had been any trouble; that Eose asked if Carson would give him a receipt, so it would show that the debt was paid, stating that he did not want any further costs to it, to which Carson replied that there had not been any costs; and that he thereupon gave Eose the receipt requested. Carson testified that at the time Kelley delivered the $20 collected from the plaintiff he had no knowledge of the tort alleged to have been committed by Kelley, as mentioned by Eose. So far as the record shows, there is nothing to indicate either that Eose was-authorized, or that he represented himself to be authorized, to act as agent of the plaintiff in the interview had with Carson. On the contrary, so far as the evidence indicates, he merely advanced a portion of the money for the plaintiff, in the absence of his secretary, who was away at the time Mrs. Calvert called to see the secretary; and, so far as his testimony shows, he followed up this action by going to Carson, on his own responsibility, and taking from him a receipt for the money signed by the firm, in order to make sure that the money advanced by him and paid by Mrs. Calvert would go in full extinguishment of the debt.
    At the conclusion of the evidence for the plaintiff, upon motion of the defendant, the court granted a nonsuit.

      Cecil V. Whiddon, Thomas H. Goodwin, Taylor Smith, for plaintiff.

      Branch & Howard, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) The principles of law set forth in the first and second divisions of the syllabus require no elaboration.

While it is true that where one is employed as an independent contractor to render services on behalf of another, the employer becomes liable for the tort of the independent contractor in carrying out the purposes of the contract if he ratifies the unauthorized wrong (Civil Code of 1910, §§ 4415 (6), 4416), still the ratification must relate to the wrong itself, and not merely to the authority of the independent contractor to act as such for the employer. Accordingly, the mere acceptance by the employer of the benefits naturally flowing from the proper performance by the independent contractor of his contract, and the retention of such benefits after knowledge that such contractor, in the performance of the contract, committed an independent tort, will not amount to ratification by the employer of the tort itself. Where, as in the instant case, the object of the contract was the collection of a debt owing to the employer, the acceptance by the employer from the independent contractor of the amount collected, which was no greater than the amount admittedly due him, and the retention of that amount after knowledge of the unauthorized tort committed by the contractor in making the collection, would not amount to a ratification of such unauthorized wrong. If, after ascertaining the commission of the tort of the independent contractor, the defendant was entitled to retain the proceeds of the collection on the theory that the amount collected represented an amount admittedly due the defendant by the plaintiff, and if the defendant could not be required to pay back the amount thus re-received, its. right to retain it establishes the fact that the defendant received and held the funds solely by virtue of its admitted claim of indebtedness, and not because of the tort committed, and that such retention could not, therefore, amount to a ratification of the tort, but amounted only to an affirmation of the contractor’s authority, as such independent contractor, to receive such sum for his employer.

The purport of the testimony of the plaintiff’s witness, Rose, is to the effect that Carson was not asked, and that nothing was then said by him one way or the other, as-to whether the relationship then existing between the defendant and the collector was that of master and servant, or employer and independent contractor; that is, while it appears that some sort of relationship was understood to exist between the defendant and the collector, its nature and character, was not raised or brought into question. While it was not contended by counsel for the plaintiff in error that a failure on the part of the manager to voluntarily inform the witness Eose of the exact nature and character of the collector’s employment amounted to such an admission by silence as would tend to discredit Carson’s undisputed testimony on the trial that the collector was in fact an independent contractor, we think it proper to say that, accepting Eose’s testimony as true, the failure of the manager to raise and discuss with this witness the nature and legal effect of the contract of employment, when no such matter or question had been suggested or brought to his attention, could not be taken as discrediting his undisputed testimony on the trial. Eose’s testimony shows that he “went down to- the Hub Style Store on May 19, 1925, and got a receipt.” The purport of this testimony is that he went down to interview Carson not for the purpose of entering a claim for damages against the Hub Company, but in order to ascertain if Kelley had turned over the money, and, if so, to obtain a receipt from the Hub Company in lieu of the one signed by Kelley. His'testimony in no wise indicates that the responsibility of the Hub Company for the conduct of Kelley was in any way broached, and there is nothing to suggest that the defendant’s manager could then have supposed that the plaintiff intended to hold the defendant company' liable for Kelley’s acts and conduct. This being true, there w;as no duty upon the defendant to presuppose a claim for liability in no wise intimated, and to disclaim responsibility for the acts of its independent contractor.

Judgment affirmed.

Bell, J., concurs. Stephens, J., dissents.


author: Bell, J.

text:
    17882.
    City of Rome v. Phillips.
    Municipal Corporations, 43 C. J. p. 1077, n. 30; p. 1082, n. 75; p. 1083, n. 76; p. 1085, n. 92; p. 1089, n. 26; p. 1090, n. 36; p. 1098, n. 46; p. 1099, n. 49 New; p. 1242, n. 38; p. 1307, n. 51; p. 1310, n. 73. Trial, 38 Cye. p. 1615, n. 20.
   Bell, J.

1. In a suit for damages against a city, in which recovery depended upon the establishment of negligence on the part of the city in maintaining a certain line of water (or gas) pipe in an improper position in one of its streets, where it appeared that the pipe, which •was about an inch in diameter and extended longitudinally with the street near the center thereof, was so exposed as to leave a space of from one to two inches between it and the surface of the street, and that this condition of the pipe had been caused by the act of the city in uncovering it while grading the street, and that it had been allowed to remain in this condition for several days during which the street was open to pedestrians, the inference was authorized that, with respect to a pedestrian who in thereafter crossing the street was injured by catching her foot under the pipe and falling, the city was negligent in maintaining the pipe in such 'exposed condition. Holliday v. Athens, 10 Ga. App. 709 (2, 3) (74 S. E. 67).

2. The fact that the pedestrian may have had previous knowledge of the exposed position of the pipe would not necessarily or as a matter of law absolve the city from liability. Where the pedestrian was a woman and at the time of her injury was running across the street in response to a sudden and unexpected cry of a mother who resided immediately across the street and who was calling frantically for help on account of an injury which had just befallen her child, and where it appears that in so crossing the street the attention of the pedestrian was “centered” on her neighbor in distress, whom she was watching as she ran, and that, owing to her excitement and the other circumstances as described, she was rendered oblivious of the dangerous condition of the street, it could not be said, as a matter of law, that the injury to her from falling over the pipe should be attributed to her own negligence, or that the consequences of the defendant’s negligence could have been avoided by the exercise of ordinary care on her part. In such a case it is immaterial that the emergency which intervened and prevented vigilance on the part of the person injured was not : caused by negligence of the party sought to be held liable. King v. Seaboard Air-Line Railway, 1 Ga. App. 88 (2) (58 S. E. 252); Harrell v. Mayor &c. Macon, 1 Ga. App. 413 (58 S. E. 124) ; MacDougald Construction Co. v. Mewborn, 34 Ga. App. 333 (129 S. E. 917); Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (2) (64 S. E. 302); Dempsey v. Rome, 94 Ga. 420 (20 S. E. 335).

3. In the absence of some ordinance or regulation to the contrary, a person in crossing a public street is not limited to intersections or crosswalks, but has the right to cross the street at any point. So. Bell Tel. Co. v. Howell, 124 Ga. 1050 (2) (53 S. E. 577; 4 Ann. Cas. 707); City of Atlanta v. Hampton, 139 Ga. 389 (3) (77 S. E. 393); Brunswick & Western R. Co. v. Gibson, 97 Ga. 489, 498 (25 S. E. 484). An instruction embodying this principle, being pertinent and being within itself complete and accurate, was not rendered erroneous because of the court’s failure to charge in connection therewith that where a person ' crosses a street at a point other than a regular crossing the surroundings may require of him the exercise of greater caution and vigilance than if he had crossed at the usual place. Bensel Construction Co. v. Homer, 2 Ga. App. 369 (2) (58 S. E. 489); Peeples v. Rudulph, 153 Ga. 17 (2) (111 S. E. 548); Rome Ry. &c. Co. v. King, 33 Ga. App. 383 (3) (126 S. E. 294); Brown v. Meikleham, 34 Ga. App. 207 (4) (128 S. E. 918).

4. The defense of comparative negligence not having been pleaded, the court did not err in failing, without request, to instruct the jury thereon. Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315 (6) (125 S. E. 891).

Decided October 15, 1927.

Damages; from Moycl superior court—Graham Wright, judge pro hac vice. December 13, 1926.

Application for certiorari was denied by the Supreme Court.

Paul E. Doyal, for plaintiff in error.

Maddox, Matthews & Owens, contra.

5. Applying the above rulings, the petition set forth a cause of action, and the several demurrers thereto were properly overruled; the verdict for the plaintiff was authorized, and the court did not err, upon any ground taken, in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    17919.
    BURT v. GOOCH et al.

    1. In this suit to partition lands, which was defended solely upon the ground that, in virtue of a parol gift from the persons under whom the plaintiff claimed title, the defendant was the owner of a life estate in the interests sought to be partitioned, the evidence introduced to establish such gift was, as a matter of law, insufficient for that purpose; and, the evidence having shown without dispute that the plaintiff was the owner of the undivided interests in the land, as alleged in the petition, the verdict in favor of the defendant was unauthorized and should have been set aside on the general grounds of the plaintiff’s motion for a new trial.
    2. The court erred in admitting, over appropriate objections, certain documentary evidence, as shown in division 2 of the opinion.
    3. The court erred in instructing the jury in such way as to imply that the suit was intended to evict the defendant, and to deny her any share in the proceeds of the partition sale, where the suit was not designed for such purpose, but conceded the defendant’s right to participate in such proceeds according to her interest, should the -sale be ordered.
    4. In view of the issues as made by the evidence and a stipulation in the record, none of the instructions which it is claimed were erroneously omitted would have been pertinent. The court erred in refusing a new trial.
    Evidence, 22 C. J. p. 904, n. 44, 45; p. 929, n. 75; p. 930, n. 90.
    Gifts, 28 C. J. p. 055, n. 45; p. 656, n. 49, 52; p. 657, n. 57, 60, 01.
    Infants, 31 C. J. p. 1033, n. 79, 85.
    New Trial, 29 Cyc. p. 786, n. 87.
    Partition, 30 Oye. p. 245, n. 09; p. 247, n. 91.
    Decided October 15, 1927.

      Application for partition; from Dawson superior court—Judge J. B. Jones. December 28, 1926.

      E. G. Brannon, for plaintiff. B. P. Gaidard Jr., for defendants.
   Bell, J.

It. E. Burt brought a suit against Mrs. Missouri Gooch and others to partition lands by sale. Mrs. Gooch alone defended. The trial resulted adversely to the plaintiff, and he excepted to the overruling of his motion for a new trial. The plaintiff predicated his title or common tenancy upon deeds made to him by the sheriff on October 7, 1924, in pursuance of a judicial sale of .the respective interests of Charlie and Raymond Gooch in the home place of their deceased father, W. H. Gooch, who died intestate on July 10, 1905, leaving as his heirs his widow, Mrs. Missouri Gooch, and eight children, including Charlie and Raymond. On July 19, 1905, four of the children made a deed purporting to grant to their mother, Mrs. Gooch, a life estate in their respective interests in the place, but at this time Raymond and Charlie were minors, each under the age of ten years, and did not join in this deed. Although the other remaining children appear to have signed the deed in the meantime, there was no attempt by Raymond or Charlie to become parties thereto until August 2, 1924. In March, 1922, judgments were obtained against Raymond and Charlie, and executions issued thereon were entered on the general execution docket in April, 1922. It was under these executions that the interests of Raymond and Charlie were levied on and sold by the sheriff, and these interests constituted the subject-matter of the present controversy. Mrs. Gooch claimed that she had acquired a life estate in the shares of all the children, and therefore that the plaintiff would not be entitled to a partition of the property until after her death. She sought to show that on August 2, 1924, her son Raymond joined in the deed, of July 19, 1905, both for himself and for Charlie, by adding their names to the deed, and that he, Raymond, had authority to sign for Charlie by virtue of a letter written to him by the latter in Texas, telling him to “sign that deed.” The deed was recorded promptly after its execution by the original signers, but was not rerecorded after the purported execution by Raymond and Charlie. The deed and letter were both introduced in evidence over objection. It was stipulated in the record that the issue to be submitted to the jury was “the effect of a parol agreement on the right of Mrs. Missouri Gooch to a life interest, in the estate, and whether or not a parol agreement and the later confirmation of the same by the minors, Raymond and Charlie Gooch, . . had the effect of conveying such life estate to Mrs. Missouri Gooch, so as to prevent a partitioning of these lands.” In the motion for a new trial the plaintiff assigned error upon the admission of the deed and letter in evidence, and excepted also to a portion of the court’s charge and to certain omissions to charge. The only testimony upon the trial was that of Mrs. Gooch, from which we quote as follows: “Charlie and Raymond were minors at the time the others signed [referring to the deed of July 19, 1905], and later they signed the deed in the presence of Roy Reece, a J. P. That was done .on the 2d day of August, 1924. The agreement between me and the children was that I should live there on this land and have a life estate in it until my death, and make my living on it and stay right there on the place. The land was to be mine so long as I lived. Under that agreement I have lived right there up to the present time. I have' lived there from .the death of my husband up to the present time under that agreement and under this deed. This deed was signed the 19th day of July, 1905, and it was some time in that same month that this agreement was made between me and the children about the life estate. After this agreement this deed was executed as a consummation of that agreement. It was. a love-and-affection deed, made to me for life. None of the children ever objected to me having a life estate, and never said a word to me about not living on it according to our agreement. ... I have made valuable improvements on the place under this deed and agreement with the children. I had the -mill covered, a new wheel built, a new race fixed, bought new piping, and fixed it up new and paid for that myself. I have covered the dwelling ■ and barn this spring. I built a barn and crib too since this deed. I have tried .to keep the place up as good as possible, and did these improvements on the faith that I would stay there and have a life estate on it. This agreement was made just a few days after the death of my husband. At the time—the time of the agreement and the deed—Raymond Gooch was four years old, and Charlie was two. There has been no agreement since that time, and these two children have been living there with me all the time up' till about three years ago. Raymond is still with me. They all lived with me at the time of the agreement and deed. The money I made on the farm I spent on the improvements. . . I was present when Raymond and Charlie signed. Raymond signed for Charlie; Charlie wasn’t here; he hadn’t been here for about two years prior to that time. . . I never paid the children anything for this deed. They just made a love-and-affection deed to me to have a home. No.money passed at the time. The deed was just made to me. . . Raymond still lives on the place and Charlie has been gone about three years, but up until then he lived with me all the time. All the children knew of this gift of the heirs to me. They never objected, and they Tigreed to it. The understanding ivas they wore to give me their part. This letter from Charlie to Raymond states and authorizes Raymond to sign that deed for him. Raymond and Charlie knew that the others had given me a life estate in this; and—they were raised up to know that.” “That is Charlie Gooch’s handwriting. I know it and have seen it many times, and that is it. We received that letter by due course of mail. Charlie hasn’t been back here since that deed was signed.” None of Mrs. Gooch’s other testimony was material to the questions presented for decision.

The verdict should have been set aside upon the general grounds of the motion for new trial. The fact that Mrs. Gooch may have owned an undivided interest in the property as one of the heirs and may have acquired a life-estate in the interests of other heirs would not prevent a partition of the lands at the instance of the plaintiff, if he owned title to the interests of Raymond and Charlie, unencumbered by the life estate. One who holds title to an undivided interest in land may not, in a suit to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Teasley v. Hulme, 150 Ga. 495 (104 S. E. 151, 12 A. L. R. 641); Rutland v. Ridgdill, 153 Ga. 212 (112 S. E. 278). Nor will a partition be denied because the defendant may have erected valuable improvements upon the property, although the person making such improvements may, in certain circumstances, be entitled, to certain equities because of the same. Smith v. Smith, 133 Ga. 170 (10, 11) (65 S. E. 414); Walton v. Ward, 142 Ga. 385 (82 S. E. 1067); Koplin v. Shartle Co., 150 Ga. 509 (4) (104 S. E. 217). In order for Mrs. Gooch to assert a life estate in the interest of Raymond and Charlie it was necessary for her to show a conveyance thereof prior to the record of the executions against them in April, 1922. The attempted conveyance of August 2, 1924, even if effective, was subject to the lien under which the sheriff sold the property to the plaintiff. Civil Code (1910), §§ 3321, 5946. Mrs. Gooch relied, however, upon an antecedent parol gift by the two sons mentioned of a life estate in their interests. A parol gift of land, without more, is ineffectual to pass title to the donee. Thaggard v. Crawford, 112 Ga. 326 (2) (37 S. E. 367). Possession of lands under a voluntary agreement, upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right that he may not be ousted. Civil Code (1910), § 4636; Ogden v. Dodge County, 97 Ga. 461 (25 S. E. 321); Bell v. Sappington, 111 Ga. 391 (36 S. E. 780); Hadden v. Thompson, 118. Ga. 207 (44 S. E. 1001); Hughes v. Hughes, 72 Ga. 173 (8); Kemp v. Hammock, 144 Ga. 717 (87 S. E. 1030). The improvements must be valuable, and it is not sufficient to show repairs which are slight and trivial or which are of a temporary character and merely for the convenience of the tenant. Porter v. Allen, 54 Ga. 624; Holland v. Atkinson, 112 Ga. 346 (37 S. E. 380). Such a gift of land, with such possession by the donee, is not complete until such valuable improvements have been made upon the faith of the gift; and in the meantime the property remains subject to liens against the donor. Jones v. Clark, 59 Ga. 137 (1); Johnson v. Griffin, 80 Ga. 551 (2) (7 S. E. 94); Thaggard v. Crawford, 112 Ga. 326, 328 (37 S. E. 367). In the present case, however, there is no evidence even of a parol gift by Raymond and Charlie. According to Mrs. Gooch’s testimony, the agreement upon which she relies was “made just a few days after the death” of her husband. “There has been no agreement since that time.” Raymond and Charlie were then each under ten years of age, and therefore conclusively incapable of making a gift or contract. Whatever, if anything, they may then have attempted to do toward making a gift to their mother of a life estate in their property amounted to nothing, and hence could-not be the subject of affirmance or disaffirmance on their arrival at majority. Edwards v. State, 80 Ga. 127, 120 (4 S. E. 268); Rhodes v. Ga. R. Co., 84 Ga. 320, 323 (10 S. E. 922, 20 Am. St. R. 362); Atlanta & West Point R. Co. v. West, 121 Ga. 641 (4) (49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179); Civil Code (1910), §§ 4232, 4501; Penal Code, §§ 33, 34. Nor could the making of valuable improvements by the mother complete and render effective as a gift .an undertaking made by them at such tender ages. It is true that whether a gift or contract by a minor will be affirmed or disaffirmed on his arrival at majority is a matter of personal privilege; but in the present case it appears that there was nothing to ratify. It follows fr'om what has been said that the defendant in error, Mrs. Gooch, failed to show a life estate in the interests claimed in the property by the plaintiff, and the verdict in her favor should have been set aside. In this view, no question is involved as to what would be necessary to show ratification of a gift of land by a minor.

The deed of July 19, 1905, and the letter from Charlie to Eaymond, purporting to authorize him to “sign that deed,” should both have been excluded from evidence. Neither of them illustrated any issue in the case; and furthermore, the deed was never recorded and there was no proper proof of its execution as to Eaymond and Charlie. Civil Code (1910), §§ 4210, 5828, 5833, 5834. In addition to this, the letter was too indefinite to be the basis of authority to convey land. Whether the deed and the letter were inadmissible for other reasons than those stated need not be decided.

The court instructed the jury that the proceeding brought by the plaintiff was to partition the land and to have the same sold and the proceeds “divided between the plaintiff and the other heirs,” and that objections had been made “by Mrs. Gooch, the defendant,” and that the other heirs had filed no objections “except sustaining her view of it.” Mrs. Gooch, in her answer, had contended that the proceeding would have the effect of evicting or removing her from the possession of her alleged life estate, and, in view of this allegation, the plaintiff excepted to the above charge upon the ground that it was susceptible of the construction that the proceedings were intended to evict Mrs. Gooch, and that she was not one of the heirs who rvould share in the distribution of the proceeds of the sale. We think the charge was erroneous. It was calculated to impress the jury that if the plaintiff prevailed, the widow would be evicted without sharing in the proceeds to be derived from the sale of the entire property; whereas the suit was not designed to have any such purpose. Such misstatement of the purpose of the plaintiff’s action, though doubtless inadvertent on the part of the court, was probably prejudicial to the plaintiff.

There is no merit in any of the grounds of the motion for a new trial complaining of omissions to charge. In view of the stipulation as to the issue to be submitted and in further view of the limited scope of the evidence introduced, none of the instructions which it is claimed the court should have- given would have been pertinent. For the reasons given above, the court erred in refusing a new trial.

Judgment reversed.

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


text:
    17976.
    RIGGS v. KINNEY et al., executors.
    1. The practice in the city court of Carrollton in regard to defaults, the opening thereof, and the filing of defenses, is the same as in the superior courts of the State.
    2. Where a suit is duly marked in default at the appearance term, the mere lodging of a plea with the clerk at the third term is ineffectual to open the default or to present any defense.
    3. “If the defendant in a suit in a State court desires a stay of the proceedings therein, because of his having been adjudicated a bankrupt, until the application for his discharge can be heard and decided by the bankruptcy court, or if he desires to set up his discharge as a defense to such suit, he must plead the adjudication or the discharge. After judgment has been rendered in a State court he can not attack the validity of the judgment therein and move the court to set aside the judgment or to treat it as a ‘nullity’ either because of the pendency of the bankrupt proceedings or because of his discharge in bankruptcy from the debt on which the judgment is based. Bankruptcy proceedings must be pleaded and proved, if relied upon. 'Courts other than a bankruptcy court will not take judicial cognizance of such proceedings.”
    Bankruptcy, 7 O. J. p. 349, n. 82; p. 414, n. 43, 45.
    Courts, 15 C. J. p. 987, n. 84 New.
    Evidence, 23 C. J. p. 115, n. 58.
    Judgments, 34 C. J. p. 326,- n. 25; p. 567, n. 67.
    Decided October 15, 1927.

      Motion to vacate judgment; from city court of Carrollton— Judge Hood. February 4, 1927.

      Smith & Taylor, for plaintiff in error.

      Boylcin & Boylcin, contra.
   Bell, J.

The executors of Kinney, on July 18, 1925, filed suit against Riggs on a promissory note, in the city court of Carrollton, returnable to the September term, 1925. On August 19, 1925, Riggs filed a voluntary petition in bankruptcy and on that date was adjudicated a bankrupt. At the return term of the city court the suit there pending was called, and, no defense having been filed, was. duly marked in default. On November 7, 1925, Riggs was granted a discharge in bankruptcy. On the first day of the March term, 1926, of the city court, the defendant’s attorney merely lodged with the clerk a plea setting up the discharge. Later on, during the sanie day, the suit was sounded for trial, and judgment was entered in favor of the plaintiff, as in cases of default. On January 27, 1927, Riggs filed a motion to set aside the judgment, on the ground that on March 4, 1926, the day of the trial but before the case was actually called, he had filed a plea setting up his discharge in the court of bankruptcy, and that for this reason the judgment was void and should be vacated. The trial court overruled the motion and Riggs excepted.

There was no motion in the court below to stay the proceedings pending the defendant’s bankruptcy nor was there any motion to open the default. The main judgment of the trial court recited, “no defense having been interposed.”

If the defendant in a State court desires a stay of proceedings therein, because of his having been adjudicated a bankrupt, until the application for his discharge can he heard and decided by the bankruptcy court, or if he desires to set up his discharge as a defense to such suit, he must plead the adjudication or the discharge. After judgment has been rendered in the State court he can not attack the validity of the judgment therein because of his discharge in bankruptcy from the debt on which the judgment is based. In short, bankruptcy proceedings, if relied on, must be pleaded and proved, like other affirmative defenses. McDougald v. Chattanooga Medicine Co., 10 Ga. App. 653 (2) (73 S. E. 1089); Finney v. Mayer, 61 Ga. 500; Adams v. Dickson, 72 Ga. 846; Crawford v. Bostwick Co., 141 Ga. 356 (80 S. E. 1005); Bacon v. Michelin Tire Co., 160 Ga. 591 (4) (128 S. E. 906); Whitley v. Jackson, 34 Ga. App. 283 (2) (129 S. E. 294). In such a case the bankrupt can plead his discharge in bankruptcy and prevent a general judgment, provided he can show that the note or debt in question was properly scheduled and provable, and not exempted under the bankruptcy law. Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (2) (119 S. E. 25).

But a motion to set aside a judgment must be based on' some defect or error apparent on the face of the record; and here, as in Pulliam v. Dillard, 71 Ga. 598, the suit was brought on the note prior to the defendant’s adjudication as a bankrupt, and proceeded to judgment without any plea of .the defendant’s discharge in bankruptcy. Though the bankrupt would have been entitled to a perpetual stay of execution had the judgment been rendered prior to the discharge, yet the case is different where the discharge was granted before the judgment was rendered. Strickland v. Brown, 19 Ga. App. 73 (90 S. E. 1039); Craig v. Cameron, 27 Ga. App. 455 (108 S. E. 828); Portwood v. Shafer, 33 Ga. App. 421 (126 S. E. 556); Dimock v. Revere Copper Co., 117 U. S. 559 (6 Sup. Ct. 855, 29 L. ed. 994).

State courts will not take judicial cognizance of bankruptcy proceedings pending in the Federal courts. McDougald v. Chattanooga Medicine Co., and Craig v. Cameron, supra. “The State court could not know or take judicial notice of the proceedings in bankruptcy unless they were brought before it in some appropriate manner, and the provisions of this section [§ 5106 of the Revised Statutes] show plainly that it does not thereupon lose jurisdiction of the case.” Boynton v. Hall, 121 U. S. 467 (7 Sup. Ct. 981, 30 L. ed. 985).

Bankruptcy, to be relied upon as a defense, must not only be pleaded, but must be pleaded at the proper time, else the defense will be held to be waived, where no 'legal reason is shown to account for the neglect. “There can scarcely be a doubt that bankruptcy as a defense may be waived; and no reason occurs to us why forbearing to present it at the proper time, and in a proper manner, should not be deemed a waiver.” Laramore v. McKinzie, 60 Ga. 532; Shumate v. Ryan, 127 Ga. 118, 119 (56 S. E. 103). Where a bankrupt, after discharge, suffers a judgment to go against him upon a debt properly provable in bankruptcy, he is bound by the judgment; and it will not thereafter be subject to attack by affidavit of illegality or motion to set aside. Smith v. Cook, 71 Ga. 705; Finney v. Mayer, 61 Ga. 500; Flynn v. Jackson, 18 Ga. App. 624 (90 S. E. 83).

The practice in the city court of Carrollton, unlike that in some other city courts (Bridges v. Wilmington Savings Bank, 36 Ga. App. 239, 136 S. E. 281), is the same as in the superior courts of this State. Ga. L. 1897, p. 438, §§ 4,13,17; Chero-Cola Bottling Co. v. So. Express Co., 150 Ga. 430 (104 S. E. 233). The plea was not filed in this case until the third term, whereas the default was duly entered at the first term. The defendant could not effectively file any defense so long as the entry of default continued of force, and this -entry could be opened only in the manner pointed out in section 5656 of the Civil Code of 1910. Under the provisions of that section the judge, at the trial term, in his discretion, upon the payment of costs, may allow the default to be opened for providential cause', or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to1 be fixed by the court; provided that the showing shall be made under oath, shall set up a meritorious defense, and the defendant shall offer to plead instanter and announce ready to proceed with the trial. The defendant having failed to comply with the mandatory provisions of the above section, the court did not err in ignoring the plea and rendering final judgment for the plaintiff. Coker v. Lipscomb, 17 Ga. App. 506 (2) (87 S. E. 704); Griffin v. Brewer, 96 Ga. 758 (22 S. E. 284); Brucker v. O'Connor, 115 Ga. 95 (41 S. E. 245); Chero-Cola Bottling Co. v. So. Express Co., supra.

Judgment ajjw-med.

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


text:
    18028.
    Juhan v. Roberts.
    ■ Motor Vehicles, 42 O. J. p. 1277, n. 34; p. 1279, n. 69.
    New Trial, 29 Cye. p. 791, n. 15,
    Trial, 38 Cyc. p. 1598, n. 22; p. 1657, n. 53; p. 1661, n. 66;. p. 1707, n. 98.
   Bell, J.

1. Where the plaintiff in an action for negligence seeks to recover the full amount of his damage, without any deduction because of contributory negligence on his part, and where the jury find generally in favor of the defendant, it is not cause for a new trial, on motion of the plaintiff, that the court failed, without request, to instruct the jury upon the law in regard to comparative negligence. This is true although an issue of comparative negligence may have been involved under the evidence, and although the defendant may have filed a cross-action denying all negligence by himself and claiming damages of the plaintiff because of alleged negligence of the latter in the same transaction. Pierce v. Atlanta Cotton Mills, 79 Ga. 782 (2) (4 S. E. 381); Hill v. Callahan, 82 Ga. 109 (2) (8 S. E. 730); Ingram v. Hilton, 108 Ga. 194 (6) (33 S. E. 961); Glaze v. Mills, 119 Ga. 261 (46 S. E. 99); So. Cotton Oil Co. v. Skipper, 125 Ga. 368 (12) (54 S. E. 110); Lamon v. Perry, 33 Ga. App. 248 (4) (125 S. E. 907); Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315 (6) (125 S. E. 891).

Decided October 15, 1927.

Attachment; from city court of Decatur—Judge Guess. March 1, 1927.

Pool & Fraser, for plaintiff. Carl T. Hudgvns, for defendant.

2. A complete, accurate, and pertinent instruction is not erroneous because the court failed to give in the same connection some other pertinent legal proposition. Hence, in the trial of an action for damages to the plaintiff’s automobile, caused by an impact between that vehicle and another automobile approaching it from the rear, a charge of the statute requiring each automobile in use upon the public highways at night to have exhibited a red light on the rear was not erroneous because the court failed to instruct the jury in connection , therewith that the plaintiff’s negligence in not displaying such light would not defeat a recovery unless such violation of the statute by him was the proximate cause of his damage. Nor was the charge as given subject to exception as conveying the impression that the plaintiff, if guilty of such default, should not recover even though his failure to comply with the statute may not have caused or contributed to his injury. Hicks v. State, 146 Ga. 221 (6) (91 S. E. 57); Peeples v. Rudulph, 153 Ga. 17 (2) (111 S. E. 548); Rome Ry. & Light Co. v. King, 33 Ga. App. 383 (3) (126 S. E. 294).

3. An assignment of error that the court nowhere charged the jury that the plaintiff could recover even if the plaintiff was negligent, unless the plaintiff’s negligence was the proximate or contributing cause of his own injury or damage, is not good because such instruction, had it been given, would have amounted to an expression of opinion that the defendant was negligent, and that the plaintiff could recover for the defendant’s negligence irrespective of whether that negligence was the proximate cause of the plaintiff’s damage.

4. The general grounds of the motion for new trial are not insisted upon. There is no merit in any of the special grounds. The court did not err in overruling the motion.

Judgment affirmed.

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


author: Luke, J.

text:
    18300.
    CLARKE v. ROOSEVELT MEMORIAL ASSOCIATION.
    1. All the exceptions of fact that the plaintiff in error sought to amend having been stricken by the judgment making the remittitur from this court the judgment of the trial court, there was nothing left to amend by, and the offer to amend came too late and was properly denied.
    2. It appearing that a general demurrer to the petition had already been overruled, and that this ruling had never been changed or reversed, it was not error to overrule the general demurrer interposed at the final trial.
    3. The evidence sustains the verdict, and for no reason assigned did the court err.
    Appeal and Error, 4 C. J. p. 1224, n. 7; p. 1226, n. 42, 43. Pleading, 31 Oye. p. 350, n. 27.
    Decided November 15, 1927.
    Exceptions to auditor’s report; from Fulton superior court-judge E. D. Thomas. April 7, 1927.

      George & John L. Westmoreland, for plaintiff in error.

      Villon, Calhoun & Villon, contra.
   Luke, J.

For a fuller statement of the facts in this case see Roosevelt Memorial Association v. Clarke, 35 Ga. App. 345 (133 S. E. 644). Suffice it to say at this time that the association sued Clarke, the case was referred to an auditor, who overruled the general and special demurrers to the petition and found in favor of plaintiff; that the judge of the superior court overruled the plaintiff’s'motion to strike all the defendant’s exceptions of fact, numbered ’4 to 10 inclusive, and directed a verdict against the plaintiff; and that this court (35 Ga. App. 345, supra) held that “the court erred in denying the plaintiff’s motion to strike the defendant’s exceptions of fact,” and that “this error rendered further proceedings in the case 'nugatory.” On October 20, 1926, the trial court rendered the following judgment: “It is ordered and adjudged that the decision of the Court of Appeals be made the judgment of this court, and that the same be entered upon the minutes.” On December 17, 1926, Clarke sought to amend his exceptions of fact, and the trial judge disallowed the amendment, upon the ground that the exceptions sought to be amended had been stricken by his order making the judgment of this court the judgment of the trial court, and upon the further ground that the amendment was not sufficient in law. On April 1, 1927, the judge overruled a general demurrer to the petition. The case proceeded to trial, and the trial resulted in a verdict and judgment for the plaintiff. Clarke duly excepted to the disallowance of his said amendment, to the overruling of the .general demurrer, and to the final judgment.

The controlling question in this case is whether the judgment making the remittitur the judgment of the trial court eliminated the exceptions of fact from the case, thus leaving nothing to amend by; or whether it did not have this effect. In the case of Berrien County Bank v. Alexander, 28 Ga. App. 55 (110 S. E. 311), this court held that the trial judge erred in overruling a general demurrer to a petition. When the case went' back to the trial court the judge, after making the judgment of this court the judgment of his court, set aside his order so doing, and allowed an amendment to the petition. The case having been finally certified to the Supreme Court, that court (154 Ga. 777, 115 S. E. 648), in holding that such order, like any other judgment, could be vacated at the term of court at which it was made, said: “This right to amend was cut off when the city court acted upon the remittitur from the Court of Appeals, and made the judgment of the Court of. Appeals its'judgment; and the plaintiff was precluded by this latter judgment from amending his petition, as that judgment of the lower court put an end to the case, so long as it stood unrevoked.” In Atkinson v. Battle, 11 Ga. App. 837 (76 S. E. 597), the judgment sustaining a demurrer to a plea was reversed by this court. After the remittitur from this court was made the judgment of the trial court, a motion was made for a “rehearing” upon the demurrer, because of a subsequent decision of the Supreme Court. This court said: “The decision as ren-

dered by the Court of Appeals was binding upon the parties. Its judgment was duly made the judgment of the trial court, and stood thereafter for all purposes just as though the demurrer had been overruled by the trial court in the first - instance and no exception had been taken.” The case of Savannah, Florida &c. Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437), lays down this rule: “When the judgment of a trial court overruling a demurrer to a declaration is reversed by this court, the plaintiff has thé right to offer an amendment to the declaration at any time before the order is passed making the judgment of this court the judgment of the trial court.” “In the event that a reviewing court should reverse the trial court’s refusal to grant a nonsuit, the plaintiff would likewise have the privilege, at any time before the remittitur from the reviewing court was made the judgment of the lower court, to offer a sufficient amendment correcting the variance, or to show that he could supply such additional evidence as to cure the deficiency existing on the former trial.” Rice v. Ware, 3 Ga. App. 573 (1-6) (60 S. E. 301).

Our conclusion is that the exceptions of fact sought to be amended had been stricken by the'judgment of the trial court making the judgment of this court its judgment, and that it required no further action on the part of the trial judge to effectuate this result; and that the offer to amend the exceptions of fact came too late. It appearing that a general demurrer to the petition had already been overruled, and that this ruling had never been changed or reversed, the judgment overruling the general demurrer interposed at the final trial was not error. The evidence sustains the verdict, and for no reason assigned did the court commit error.

Judgment affirmed.

Broyles, G. J., and Bloodwor.th, J., concur.


text:
    18304.
    PERRY v. HODGSON.
    1. Though sharply conflicting, the evidence, supports the verdict, and the general grounds of the motion for a new trial are not meritorious.
    2. Looking to the whole record, grounds 1, 2, and 3 of the amendment to the motion for new trial, complaining that certain excerpts from the charge of the court were not supported by the evidence, disclose no reversible error, for the reason that it is not probable that the jury were misled or confused by such instructions, or that the plaintiff in error was injured thereby.
    3. Under the pleadings, the evidence referred to in grounds 4 to 18 inclusive was properly admitted by the court.
    Appeal and Error, 4 C. J. p. 908, n. 63; p. 912, n. 77; p. 1033, n. 37.
    •New Trial, 29 Cyc. p. 787, n. 92; p. 788, n. 3; p. 789, n. 4; p. 824, n. 41; p. 827, n. 45.
    Physicians and Surgeons, 30 Cyc. p. 1586, n. 63, 64, 66.
    Trial, 38 Cyc. p. 1617, n. 34; p. 1618, n. 36; p. 1778, n. 73; p. 1779, n. 75, 70.
    Decided November 15, 1927.

      Action for damages; from city court of Decatur—Judge Guess. June 2, 1927.
    Application for certiorari was made to the Supreme Court.

      Branch & Howard, Colquitt & Conyers, for plaintiff.

      L. J. Steele, Hugh Burgess, Bryan & Middlebroohs, contra.
   Luke, J.

William Joseph Perry, a minor eighteen years of age, by his father and next friend, James A. Perry, brought an action for damages against Dr. F. G. Hodgson. The jury rendered a verdict for the defendant, and the plaintiff excepted to the judgment of the court overruling his motion for a new, trial.

Omitting the formal parts, the petition may be summarized as follows: When plaintiff was a small boy he suffered from a bone infection of the spine, for which ho received surgical treatment that arrested the disease and left him with some lameness in his left leg, but with the ability to ride a bicycle or motorcycle, drive an automobile, and do most other things that a normal boy could do. In 1925, the plaintiff had not suffered from the said disease other than a slight limp for six years, the said infection was under control, and he could do the things usually done by a boy of his age. Defendant, whose son was a close friend of plaintiff, often saw plaintiff, and on one occasion said to him: “I want to perform a slight operation on you, and straighten your leg. There is no use in your going through life lame.” Two weeks later the defendant repeated the same statement to the plaintiff and requested that plaintiffs father come to see defendant about the said operation. Plaintiffs father called to see defendant, who said that he had such conversation with plaintiff and that he was very anxious to operate, and stated to plaintiffs father in substance what he had already told plaintiff. Defendant further said “that he would perform a minor operation by going under the skin and clipping some leaders and muscles, which would straighten plaintiffs leg; that he would have plaintiff on crutches in three weeks after the operation and completely well in six weeks.” Defendant had been associated with the surgeon who' had treated plaintiff for said affection, and was familiar with his condition. At said interview plaintiffs father told defendant “that in said operation it would never do to go anywhere near plaintiffs hip-joint or the ftrack5 through which said controlled infection drained.” Defendant said that he would not do so, “that he was just going under the skin and clip some leaders and muscles, and the operation would not require more than twenty to thirty minutes.” After thinking about the matter further, plaintiff’s father went to defendant about two weeks later, and told defendant he was afraid of said operation if there was a possibility of involving the hip-joint or said “track.” Defendant repeated his assurance that neither would be involved. Upon inquiry as to what effect a slight inflammation with which plaintiff was suffering would have on the operation, defendant replied that there was no danger, as he was not going anywhere about the liip-joint or said inflammation. After considering the matter further, plaintiff’s father went to see defendant the third time in May, 1925, and, after defendant had repeated in substance the assurances hereinbefore detailed with reference to the character and effect of said operation, contracted with defendant to perform said operation. The agreement was “that the operation would only be a minor one, that defendant would only go under the skin and clip the leaders and muscles, and would not go near plaintiff’s hip-joint or the ‘track’ aforesaid.” Defendant operated upon plaintiff on July 11, 1925, keeping him in the operating room two hours and fifty minutes, “during which time plaintiff’s father and mother were in said hospital awaiting the results of said operation.” After said operation defendant called plaintiff’s father aside and said to him that he, defendant, was greatly disappointed in the results obtained, although he had cut to the capsule of the hip, far deeper, than he expected to cut. Plaintiff’s father replied: “If you have gone to the hip-joint, you have ruined the boy.” Defendant said, “No, I don’t think so.” Paragraph 17 of the petition follows in full: “Plaintiff avers that the act of defendant in cutting as he did to the capsule of plaintiff’s hip-joint was a violation of the agreement made by defendant with plaintiff’s father in behalf of plaintiff as aforesaid, was a breach of defendant’s duty to plaintiff, and was 'a trespass and a tort upon plaintiff’s person.” “As a result of said tort of defendant,” plaintiff’s hip-joint is completely out of the socket, resting loosely against the flesh; the inflammation and infection in plaintiff’s body is enormously increased; he is a helpless and hopeless cripple; his condition is progressively growing worse and is without remedy; he suffers, and will continue to suffer, excruciating pain; he will never be able to do any work,” etc.

In his answer the defendant denied- the material allegations of the petition, and denied “that he was negligent in any manner whatsoever in the treatment of the plaintiff, but, on the contrarjg avers that the operation which defendant performed upon plaintiff was performed in a skilful, careful and proper manner, and that plaintiff’s present condition is not attributable to any act of negligence on the part of the defendant.”

The evidence in this case is in sharp conflict, and, under the law, this court is without authority to set aside the verdict for defendant upon the general grounds of the motion for a new trial.

In charging the plaintiff’s theory of the case, that the defendant committed' a breach of his duty if he performed a different operation from the one he contracted to perform, the court said: “Such other or additional operation would be considered in law a trespass upon the person of the -patient, unless the surgeon could show that such other or additional operation was necessary to save the life of, or prevent injury to, the patient, and there existed an emergency in which the consent of the patient or some person authorized to act for him could not be obtained.” This instruction is complained of in the motion for a new trial, on the following grounds: (a) It is an erroneous statement of the law as applied to the issues and evidence in the case. (b) It was not founded on any evidence, and was outside of any legal issue made in the case, (c) It was not adapted to the issue and the evidence in said ease, and was confusing to the jury in suggesting an issue and a defense not raised or supported by the evidence, (d) Because the undisputed evidence shows that the father and mother of plaintiff were in the same building where the operation was performed and readily accessible during the whole time of said operation.

“The general rule is that instructions by the court to the jury must be warranted by the evidence. Where instructions are given that are not warranted by the evidence and are calculated to mislead and confuse the jury, the error requires a new trial.” Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880). However, the reviewing court looks to the whole record to see if the complaining party suffered prejudice. Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814); Gate City Dairy Co. v. McRae, 164 Ga. 810 (139 S. E. 542). While there was no direct evidence that any “additional operation” was necessary either to save the patient's life or to prevent injury to him, there was evidence to the effect that the operation was proper and necessary; and while it would have been better to omit the charge complained of, yet, after looking through the entire record, we are so impressed with the perspicuity and fairness of the charge as a whole, and with the impartial and lucid manner in which the issues in the case were presented to the jury, that we do not believe .the jury were confused or misled, or that the plaintiff suffered prejudice. Grounds 2 and 3 of the amendment to the motion for new trial involve the identical question raised by ground 1, and none of these shows reversible error.

The remaining grounds complain of the admission in evidence, over the plaintiff's objection, of the testimony of various surgeons to the effect that the operation performed was recognized by the profession as a proper one, and was proper in the plaintiff's case. The testimony complained of in each of the said fifteen grounds was to the same effect, and in each instance the same objection was made, to wit: “that it was irrelevant in the case, that the issue upon .this point was not as to the character of the operation as being good surgery or not, or being skilfully performed or not, but the issue was as to whether or not the operation was the operation contracted to be performed.” Bearing in mind that the defendant's plea denied the alleged contract and averred that the operation performed was done in a skilful, careful, and proper manner, and alleged that plaintiff’s condition was not due to any act of negligence on the part of defendant, we find no error in any of these grounds.-

Judgment affirmed.

Broxgles, O. J., concurs. Bloodxvorth, J., diss exits.


text:
    18307.
    SCHEUER BROTHERS & CO. v. HUSHINSKY.
    The amendment to the plea in this ease comes within the rule that a promise to answer for the debt of another must be in writing in order to bind the promisor, and the court erred in overruling so much of the demurrer to the amended plea as invoked the statute of frauds.
    Frauds, Statute of, 27 O. J. p. 29, n. 85; p. 378, n. 11.
    Decided November 15, 1927.

      Complaint; from city court of Arlington—Judge Turnipseed presiding. April 11, 1927.

      A. L. Miller, for plaintiffs. George II. Perry, for defendant.
   Luke, J.

Scheuer Bros. & Company, a partnership composed of Moses and Nathan Scheuer, sued Mrs. Max Hushinsky upon an open account for $758.32, principal, and $101.31, interest to December 11, 1924. In her original answer the defendant denied indebtedness. By an amendment to this answer she admitted a prima facie case, assumed the burden of proof, and pleaded substantially as follows: “Defendant shows that' on January 30, 1923, the plaintiff was paid by defendant the sum of $500; that said payment was made under the following circumstances: Max Abramson, of Ft. Gaines, was indebted to plaintiff in some large sum; the plaintiff sought defendant’s assistance in obtaining some settlement with said Max Abramson, without any result. The plaintiff then asked defendant to loan Max Abramson at least $500 to pay to plaintiff. Defendant agreed finally to do so, with the distinct understanding 'that if Max Abramson failed to promptly reimburse defendant within a reasonable time, that defendant should have the privilege of charging said $500 to plaintiff as a credit upon defendant’s indebtedness here sued upon to plaintiff. Max Abramson failed to ever reimburse defendant in the amount of said $500, and under the distinct agreement had with plaintiff, defendant shows that the said'sum of $500, together with lawful interest thereon, is due to defendant by plaintiff, and properly chargeable as a credit on account sued on.” Defendant further pleaded that “there was absolutely no consideration for defendant’s paying over to plaintiff said $500 under the circumstances outlined in paragraph 1 of this amendment, except plaintiff’s promise to allow said amount as a credit on the indebtedness sued on if Abramson failed to reimburse defendant, and unless defendant is allowed said credit of $500 for which she has received no value whatever.” The plaintiff demurred to the foregoing amended plea, because it undertook to set up, and did set up, an agreement that was in violation of the statute of frauds, to wit, an oral promise by plaintiff to stand security for A hr am arm on a $500 loan made to Abramson by defendant. The demurrer was overruled and the plaintiff excepted.

The plea in this ease comes squarely within the rule that a promise to answer for the debt, default, ,or miscarriage of another must be in writing (Civil Code of 1910, § 3222), and the court erred in overruling so much of the demurrer to the plea as invoked the statute of frauds. In this connection see Bedingfield v. Lamb, 19 Ga. App. 486 (91 S. E. 793), and cit.

Judgment reversed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    18313.
    SWIFT & COMPANY v. JOHNSON et al.

    The verdict as reduced by writing off a part of the recovery was not unauthorized.
    Tn view of the counter-showing made to the trial judge, this court can not hold that he erred in holding that the alleged newly discovered evidence, by the exercise of proper diligence, should have been at the trial.
    Appeal and Error, 4 C. J. p. 830, n. 45; p. 835, n. 67; p. 1143, n. 10. New Trial, 29 Cyc. p. 1009, n. 54; p. 1020, n. 20; p. 1031, n. 1.
    Decided November 15, 1927.
    Mortgage foreclosure; from Gwinnett superior court—Judge Stark. May 16, 1927.

      Tye, Peeples & Tye, N. L. Hutchins, for plaintiff.

      0. A. Nix, I. L. Oakes, for defendants.
   Luke, J.

Swift & Company brought its petition against J. E. Johnson and Mrs. Louise E. Cooper, executrix of the estate of W. A. Cooper, to the June term, 1925, of the superior court of Gwinnett county, to foreclose a mortgage on real estate. At the same term of court defendant Johnson filed his answer, and the plaintiff its demurrer thereto. When the case was called for trial at the March term, 1926, Johnson offered an amendment, in the nature of a set-off, to his original plea, the plaintiff claimed surprise, and the case was continued. At the next September term the amendment was allowed, paragraph 2 of the original plea was stricken, the case proceeded to trial, and the jury rendered a verdict for Johnson for $109.21. After he had written off a large part of his recovery, the court overruled the motion for a new trial.

1. After a careful examination of the brief of evidence in this case, we can not say that there was no evidence to authorize the verdict as written off.

3. In view of the counter-showing made, and of the fact that the judge of the superior court is the trior in such matters, we can not, and do not, say that the court erred in ruling as follows upon the only ground of the amendment to the motion for a new trial: “The newly discovered evidence, by the exercise of proper diligence according to the counter-showing, should have . been at the trial.”

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    18314.
    Clark et al. v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 44, 45; p. 1218, n. 47. Drunkards, 19 C. J. p. 804, n. 49.
    Decided November 14, 1927.
    Drunkenness on highway; from Paulding superior court—Judge Edwards. May 19, 1931.

      G. D. McGregor, G. B. McGarrity, for plaintiff in error.

      B. W. Ragsdale, solicitor-general, contra.
   Luke, J.

The evidence sustains the verdict of guilty; and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

Broyles, O. J., amd Bloodworth, J., concur.