text:
    15443.
    Central of Georgia Railway Company et al. v. Lawley. Central of Georgia Railway Company et al. v. Jones.
    15480.
   Jenkins, P. J.

1. “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420. “There is a clear distinction between the duty owing to such an invitee and the duty owing to a mere licensee. An owner owes to a licensee no duty as to the condition of the premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or willfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation.” Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 463 (1) (118 S. E. 695); Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (1) (116 S. E. 17).

2. While it is true that a railway company may, by deed from the owner, acquire a fee-simple title to the land traversed by its tracks, and such an absolute ownership of the soil will extend indefinitely upward so as to include the proprietorship of the air and space above such land, yet when it has acquired by condemnation, or by deed or contract, as it ordinarily does, only what is termed' a “right of way,” such right of way is construed as amounting only to an easement appurtenant to the land, however extensive its duration and however exclusive’ and paramount may be the rights conveyed for'the necessary purposes intended. Such right of way will' not be taken to extend to a height above the' surface "of the tracks greater than is needed for the safe and convenient passage of trains and their burdens of whatever nature, and for the maintenance of the necessary, usual, and customary transportation instrumentalities and facilities. L. & N. R. Co. v. Willbanks, 133 Ga. 15, 19, 20 (63 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860); Gaston v. Gainesville Ry. Co., 120 Ga. 516, 517 (48 S. E. 188); L. & N. R. Co. v. Mawey, 139 Ga. 541, 542 (1) (77 S. E. 801); Citizens Telephone Co. v. Cincinnati R. Co. (192 Ky. 399; 233 S. W. 901, 18 A. L. R. 615, 617, 618, and extensive case note); 22 R. C. L. 863-865; 3 Bouvier’s Law Dict. 3444; 4 Words & Phrases (N. S.), 391, 392; 19 C. J. 978, 979. See also Civil Code (1910), §§ 5233, 2585 (3, 4); Ga. Granite Co. v. Venable, 129 Ga. 341 (2), 345, 346 (58 S. E. 864). Thus, it is the general rule that a railway company, holding and occupying a right of way over land and over such portion of the space and air above as is necessary and proper in the use and enjoyment of its easement, has the rights and duties of an “occupier of land” with reference to invitees under section 4420 of the Civil Code, who may by its express or implied invitation come upon the premises so occupied. As to such, it is held to the measure of ordinary care; but upon premises beyond the right of way thus occupied the railway company is concerned neither as an owner nor as an occupant, and its liabilities in tort, to an alleged invitee upon premises on which it has no legal right, can not be measured under the statutory rule applicable to invitees.

(a) However, where, as here alleged, the railway company holding the right of way assumed ownership or control of the air space above its tracks by entering upon a written contract with an electric company, whereby the latter company was granted the right and privilege to “erect and maintain” described lines of power wire “across and over” the “right of way and tracks” of the railway company, with the right reserved to the railway company to control the manner of erection and the change of location or removal of the conductors, poles, or supports, then and under such circumstances the railway company will not be permitted to dispute its occupancy or control of the space thus utilized by the electric company as against one who enters thereupon by the invitation of the railway company holding the right of way.

3. “An allegation in pleading which contradicts anything of which the court must take judicial notice is absolutely nugatory and will be disregarded.”- Rome Ry. & Lt. Co. v. Keel, 3 Ga. App. 769 (2), 773 (60 S. E. 468). But, while the courts are required to take notice of the elementary natural laws of general application, and the characteristic and scientifically established general properties of material substances and forces, such as electricity, and for this general purpose the personal information of the tribunal may be supplemented by resort to encyclopedias or standard scientific treatises of recognized accuracy, it is nevertheless the rule that special effects and modes of operation of physical substances and forces, which are not commonly known, and an understanding as to the application of which to the particular case may require scientific or expert knowledge not possessed by the court and jury, or about which experts may differ, or which might conceivably vary in effects under peculiar or special conditions, as shown by the pleadings and evidence, will not be judicially recognized, but will be left to proper modes of proof. I Chamberlayne on Modern Law of Evidence, §§ 703, 705, 719, 720, 820, 848, 858, 886, 903; 2 Id. §§ 1968 (a), 1988. In the instant case neither the trial judge nor this court can assume, as a matter of common and established knowledge, that electricity, especially an indirect or alternating current, as claimed by the plaintiffs (though it is not particularly alleged whether the current which caused the personal injuries sued for was direct or alternating), would not, under the -high voltage stated, the peculiar arrangement of the wires, and the other facts alleged, jump for the distance of two feet or less to the heads of the injured persons, or draw a steel tape measure to such wires, in the manner charged. To assume the physical impossibility of such effects would require expert knowledge as to the laying of .electric wires, th? effects and dangers of various kinds of current and voltage, such as would fall within the domain of an electrical engineer or scientific expert and observer, and such as this court does not possess or assume. See Hoppe v. City of Winona, 113 Minn. 252 (129 N. W. 577; 33 L. R. A. (N. S.) 449, Ann. Cas. 1912 A, 247), where the probabilities of “brush” of “disruptive” discharges of electricity, and their likelihood of injuring persons in proximity to but not in actual contact with the wires, are considered, and a judgment for a plaintiff was affirmed.

4. “Under section 4414 of the Civil Code (1910) an employer is not liable for the negligence of an independent contractor, unless the employment or tortious acts constitute one of the exceptions stated in that section or in section 4415.” Malin v. City Council of Augusta, 29 Ga. App. 393 (1) (115 S. E. 504). While it is true that, under subdivision 5 of the latter section, “the employer is liable for the negligence of the contractor, . . if the employer retains the right to direct or control the time and manner of executing the work, or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference” (Huey v. City of Atlanta, 8 Ga. App. 597, 70 S. E. 71), it is nevertheless the rule that, where the owner of premises surrenders the possession and control to an independent contractor, the contractor is in law chargeable with knowledge of any and all ordinary risks and hazards thereto appertaining, even though some peculiar arrangements of the premises might under certain conditions become sources of hidden danger. Butler v. Lewman, 115 Ga. 752 (42 S. E. 98). In such a case, in order for the owner or occupier of premises to be held liable to the workman of the contractor, the hazard must be latent or concealed, and the owner must have retained the custody and control of the premises. Huey v. City of Atlanta, supra.

(a) “It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference -unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties.” Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (1) (118 S. E. 471); Krueger v. MacDougald, 148 Ga. 429 (1) (96 S. E. 867). Conclusions in conflict with pleaded facts are to be disregarded. Moore v. Seaboard Air-Line Ry. Co., supra (4). If the petition be ambiguous or contradictory in its averments, not with reference to the form of action selected, as in Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311), and cases cited, but as to facts essential to any right of recovery, ambiguities or contradictions must, on demurrer, be resolved against the pleader. While there are general averments charging that the defendants had never relinquished possession of the premises occupied by them including the place of injury, these allegations are demurred to specially, and it is manifest from other averments that the independent contractors employed by the county had possession of and entirely controlled the construction and progress of the cement bridge structure, and that the actual structure itself, on the top of which the injuries occurred, was in the sole possession and control of the contractors.

(6) But assuming that under the allegations of the petitions the defendants could be taken as having originally had any legal right of control over the particular air space where the injuries occurred, about 30 feet above the tracks, on a level with the height of the concrete piers and below the intersecting power wires, and even though it were possible to give effect to the general allegation or conclusion of the petitions that the defendants retained the custody and control of this air space about the piers where the workmen of the independent contractors employed by the county were engaged, the petitions are nevertheless defective and fail to set forth a cause of action, since they fail to allege that the wires had been erected and installed in an originally unsafe and improper manner, and since it appears that the danger actually and finally encountered by the workmen arose by reason of the conditions created by the workmen themselves during the progress of the work as directed by the independent contractors and the county, and especially since it does not appear that the defendants knew or ought to have anticipated that the independent contractors did not or would not know of the danger thus being brought about, and had failed or would fail to warn the injured workmen thereof, even if the averments as made could be taken as sufficiently alleging that the independent contractors had in fact failed to warn them of the particular danger causing the injury. Kiser v. Suppe, 133 Mo. App. 19 (112 S. W. 105); Cramblitt v. Percival Co. (158, N. W. 541, L. R. A. 1916C, 77); Texas Traction Co. v. George (Tex. Civ. App.), 149 S. W. 438; Proctor v. San Antonio Street Ry. Co., 26 Tex. Civ. App. 148 (62 S. W. 939); The Auchenarden (D. C.); 100 Fed. 895, 896; Omaha Co. v. Hargadine (Neb.), 98 N. W. 1071; Humpton v. Unterkercher, 97 Iowa, 509 (66 N. W. 776); Moll on Independent Contractors, 400.

(c) Especially would the immediately preceding rule have application to the Lawley petition as amended (No. 15443), where it is alternatively alleged in separate counts that the electricity from the transmission wire jumped to a steel tape held by the injured workmen, or drew such tape to the wire, causing electrical contact, and where it does not appear that the defendants, by the proper exercise of any legal duty to the injured workmen, knew or should have anticipated that a recognized dangerous conductor of electricity such as this steel tape would be brought into close proximity to the power wires, and thus occasion a catastrophe, which, so far as shown by the petition, would not otherwise have happened. While the Jones petition (No. 15480). as amended added a second count, alleging that, “as petitioner passed directly under said wire, the said electricity, being thus attracted by the nearness of petitioner to said wire, jumped and flashed from the wire to the head of petitioner, striking him prostrate instantly, that the effect of the electricity not only prostrated petitioner, but ran from his head down the left arm, and caught within the magnetic field of said electricity created by this high tension wire, directing the metal tape to itself,” etc., the averments in the first count wore similar to those in the Lawley petition; and, taking the allegations in the amended count as a whole, it is doubtful if it was not the intent of the pleader to rely upon the presence of the steel tape in the hand of the petitioner as the real, proximate, or actuating cause of the jumping of the electricity, if not directly to the tape, through the head and down the arm of the petitioner to the tape. But assuming that the Jones petition as amended might be distinguishable as indicated from that of Lawley, the former, if thus alleging a proximate cause independent of the steel tape, would nevertheless be controlled by the general rules stated above.

Decided January 17, 1925.

Damages; from city court of Albany—John E. Wilson, judge pro hac vice. February 14, 1924.

Application for certiorari was denied by the Supreme Court.

STATEMENT OE EACTS BY JENKINS, P. J.

These two eases, brought here by the defendants in the court below on the overruling of their general and special demurrers to the petitions, involve substantially the same allegations of fact and questions of law. The separate petitions of the respective plaintiffs for the recovery of damages from personal injuries are brought jointly against Central of Georgia Railway Company and Georgia-Alabama Power Company. The gist of the allegations, covering in each case some fifty pages of record, and of the demurrers, covering some sixty additional pages, is as follows: At the time of the injuries the plaintiff (in one case) and the plaintiff’s deceased husband (in the other) were employed as servants by F. M. Dobson & Son, a partnership, in the laying of the concrete work for a bridge or overpass over the tracks and right of way of the Central of Georgia Railway Company, which bridge was to become a part of a public highway under construction by Dougherty County. Dob-son & Son were independent contractors under contract and employment of the county; but the railway company had agreed to contribute to the county $4,000 as a part of the expense, and to furnish dirt and material from its right of way in the construction of the approaches to this bridge; the railway company being thus interested in the project on account of its elimination of a dangerous road-crossing on its tracks at another point. Georgia-Alabama Power Company owned and maintained three transmission wires and one middle or feed wire, being high tension wires each carrying 44,000 volts of electricity. These wires were erected and maintained at a height of approximately thirty feet above the tracks and right pf way of the railway company, under a written contract between the companies, whereby it was agreed that the erection and maintenance of the power instrumentalities should be in accordance with the directions and specifications of the railway company; and the power company agreed to make, within twenty days after written notice, any required changes in location, and to hold the railway company harmless from any loss or damage on account of the erection, use, or maintenance of such lines. Some three months prior to the injuries the power company agreed with the railway company and Dougherty County to raise the wires an additional distance of one hundred feet above the said overpass and railway crossing, but this was not done until about one week after the injuries. On the day of the injuries, work on the overpass had reached a point where three concrete piers had been constructed “north and east of the tracks” of the railway, to a height of about eight or nine feet below the wires, and concrete flooring was being constructed on the same. Wooden boxes for holding cement had been laid on the piers; and the injured workmen, each in one of these boxes, separated a distance of approximately twenty-one feet, holding a steel tape one sixteenth of an inch in thickness, were engaged in taking measurements under the supervision and order of one of their employers, the independent contractors. While they were so engaged their heads were raised to a point variously stated in the petitions as “approximately two feet” and as “about one foot or fourteen inches” from the lowest one of the said transmission wires; whereupon, as- alternatively stated in the two counts of the Lawley petition and in the first count of the Jones petition, a flash of electricity leaped from the wire to the steel tape which the injured workmen were holding, or the tape was drawn upward to the wire, or as stated in the second count of the Jones petition, the flash leaped to the petitioner’s head and down his arm to the tape, thus causing the death of one and the described serious injuries of the other. By reason of the facts stated, the injured persons, as employees of the independent contractors, are alleged to have been both express and implied invitees of the railway company and the power company. It is also alleged that both companies, through their general managers, chief engineers, and other authorized agents, kept in touch with and knew the progress of the concrete work on which the persons injured were. engaged. The acts of negligence charged against each of the companies, variously expressed and reiterated, may be summarized as follows: in not furnishing the persons injured, as invitees, with a safe place to work; in not keeping the premises in a safe condition while they were present as invitees; in not raising the wires beyond a danger point within sixty days and within a reasonable time after knowledge of the facts; in not safely insulating 'the wires; in allowing said high voltage of electricity to remain within six or eight feet above said overpass, uninsulated and unguarded; and in expressly and impliedly inviting said employees of the independent contractors to said dangerous place.

{d) Where a proposed bridge, later to become part of a public highway over a railroad right of way, was under construction by independent contractors of a third person other than the defendants, under conditions and circumstances such as are slated above, where, in anticipation of dangers to the public or to servants of the contractors, not then existing but which might later arise from the progress of the structure to a point where wires of the power company (originally properly strung) might cause dangers to the public or to such servants, the fact that at some time previous to the injury and homicide it was agreed by the power company with the railway company holding the right of way and the county employing the independent contractors that the wires should be raised at some later unstated time an additional height of ten feet, would not operate to change the rule, since there was no privity as to such contract between the person injured and the power company, such as would support or aid an action in tort by the servant of the contractors against the power company on account of such injuries and its failure to perform within a reasonable time. See Fowlet v. Athens City Waterworks Co., 83 Ga. 219, 222 (9 S. E. 673, 20 Am. St. Rep. 313, case note, 1 Ann. Cas. 753, 754).

5. Eor the reasons stated in the preceding divisions of the syllabus, it was error to overrule the general demurrers to the amended petitions.

Judgments reversed.

Bell, J., concurs. Stephens, J., concurs in the judgment. -

The chief contentions of the defendants, under their general demurrers, are: (1) that neither the power'company nor the railway company was the inviter of the injured persons at the actual place of the injuries; (2) that judicial notice should be taken that electricity could not jump from a wire the distance alleged in the petition to the heads of the injured workmen, or draw a steel tape through that distance; (3) that the masters employing the injured persons, being independent contractors, are primarily responsible; and that neither- of the defendants is liable, in the absence of any averment that the independent contractors did not have knowledge of the dangers incident to close proximity to the wires, so as to warn their servants thereof; or that the defendants had knowledge or notice that the masters had failed so to warn their servants; (4) that there was no privity of contract between either of the defendants and the injured persons, on which the plaintiffs can base their actions in tort, with reference to the alleged agreement of the power company with the railway company and Dougherty County to raise said wires a distance of ten feet; (5) that the dangers resulting in the injuries arose only from the progress of the work under changing and shifting conditions.

It is contended under the special demurrers, which attack as conclusions or as too meager or as irrelevant and immaterial most of the averments in the petitions: (1) that the allegations as to the injured workmen having been “expressly invited” to the place of injury by the defendants are mere conclusions, without ultimate facts showing such invitation; (2) that the particular parts of the rights of way of the respective defendants, to which it is contended they were expressly or impliedly invited, are not shown; (3) that while it is alleged that the railway company had not relinquished to the independent contractors any control or possession over its right of way, this is a mere conclusion; that the petition shows that all control over the right of way and the space above was not maintained, and it is not sufficiently alleged what control had been relinquished and what was retained; and that it is manifest that the defendants did not retain or exercise control over the top of the bridge where the injuries occurred.

The trial court overruled the general and special demurrers to the petitions as amended, and the defendants excepted.

Pottle & Eofmayer, Pope & Bennet, Milner & Parteas, for plaintiffs in error.

Lippitt & Burt, Claude Payton, contra.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15545.
    Virginia-Carolina Chemical Co. v. Floyd.
    Decided January 17, 1925.
    Levy and claim; from Randolph superior court—Judge Yeomans. March 7, 1924.

      James W. Harris, Pope & Benneb, for plaintiff.

      H. A. Wilkinson, contra.
   Bell, J.

This ease is controlled by the instructions received from the Supreme Court in answer to questions certified. See Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 311 (125 S. E. 709).

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    15564.
    ROME RAILWAY & LIGHT COMPANY v. KING.
    The verdict for the plaintiff was authorized by evidence in support of the essential averments of the petition; and this court feels unauthorized to set it aside upon any of the exceptions to excerpts from the charge of the court, or to the failure to give certain instructions to the jury.
    Decided January 17, 1925.
    Action for damages; from Floyd superior court—Judge Wright. April 8, 1924.

      Ij. A. Dean, Lamar Camp, for plaintiff in error.

      Hooper Alexander, Porter & Mebane, contra.
   Jenkins, P. J.

1. On a former bill of exceptions it was held that the petition for damages against the defendant street-railway companj', on account of personal injuries to the plaintiff in being run down by an automobile while attempting to board the defendant’s car, set forth a cause of action’ by reason of the alleged negligence of the defendant company in requiring its passengers to enter on the left side of its cars (despite the fact that a city ordinance required vehicles in meeting street-cars to pass on this, the left, side of the car, and prohibited such vehicles, in following streetcars on the right side, to pass them, but required them' to come to a stop while a street-car was engaged in putting off or taking on passengers), and in carrying a peculiarly dazzling electric headlight, contrary to a city ordinance. See 30 Ga. App. 231 (117 S. E. 464), where a statement of the facts and contentions in the ease is set forth.

2. It is the settled general rule that a trial judge, whether requested in writing or not, should give to the jury appropriate instructions on every substantial, vital, and controlling issue presented by the pleadings and evidence. Mobley v. Merchants & Planters Bank, 157 Ga. 658 (122 S. E. 233); Walker v. State, 122 Ga. 747 (2) (50 S. E. 994); Florence v. Byrd, 28 Ga. App. 695 (1) 113 S. E. 227); 1 Stevens’ Dig. Ga. R. 407, 414; 7 Enc. Dig. Ga. R., Cum. Supp. 476-478, and cases cited. But it is also the established general rule that, where the judge has thus fairly and correctly instructed the jury, a party who desires more specific and concrete instructions as to one of his contentions, or a definition or more detailed explanation of general technical or legal words or phrases, should make in writing a timely request therefor. Smith v. Brinson, 145 Ga. 406 (89 S. E. 363); Holmes v. Clisby, 121 Ga. 241 (7) (48 S. E. 934); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641 (3), 642 (122 S. E. 75); Weldon v. State, 21 Ga. App. 330 (1 e) (94 S. E. 326); 1 Stev. Dig. 428 et seq., 493-4; 7 Enc. Dig. Cum. Supp. 480-483.

3. A correct charge is not to be characterized as erroneous because of an omission by the court to charge in the same connection an additional pertinent legal proposition. Tucker v. Cen. of Ga. Ry. Co., 122 Ga. 387 (5) (50 S. E. 128); Wilson v. Small, 28 Ga. App. 587, 591, 592 (113 S. E. 328); International Cotton Mills v. Mobley, 30 Ga. App. 781 (5), 783 (119 S. E. 467); Lovelace v. Reliable Garage, ante, 289 (125 S. E. 877). Accordingly, “an exception to a correct charge because of failure to give in the same connection some other pertinent legal proposition is not a good assignment of error.” Hicks v. State, 146 Ga. 221 (6) (91 S. E. 57). But such an instruction should'be in itself “complete, accurate, and pertinent” with reference to the particular legal rule stated, and “where the judge undertakes to charge upon a certain subject, although it be one upon which it is unnecessary, in the absence of a request, to instruct the jury, he must charge all the law upon that subject that is material to the facts of the case.” Persons v. State, 27 Ga. App. 592 (3) (109 S. E. 533); Lucas v. State, 110 Ga. 756 (36 S. E. 87); Savannah Electric Co. v. Thomas, 30 Ga. App. 405, 418 (118 S. E. 481).

The grounds of the defendant’s motion for new trial dealt with in this division of the opinion involve an application of the foregoing general principles.

(a) Exception is taken in ground 4 to the foEowing excerpt: “Preponderance of the testimony merely means an outweighing of the testimony, a tipping of the scales; it means that testimony which to your minds has the greater proving force. If in that way Mrs. King (plaintiff) has carried the burden, proven the negligence of the defendant railway company, proven herself free from fault, then she would be entitled to recover, otherwise she would not.” Error is assigned because this was an instruction that “proof of negligence on the part of the defendant would authorize a recovery in plaintiff’s favor, irrespective of whether her injury was the natural and legal result of defendant’s negligence,” and even though it “may have been caused by an agency entirely independent of defendant’s negligence.” Preceding this charge' the court had stated the defendant’s special contention as pleaded, that “the direct and proximate cause of Mrs. King’s injury was the intervening cause of the driver of the automobile and his negligence,” and later charged, “if you should find that the direct and proximate cause of this injury was not the negligence of the defendant, but was a separate intervening cause generated by a third party, then I charge you in that event the plaintiff could not recover, and your verdict ought to be for the defendant;” and this instruction was elaborated. As was said .in the former ruling in this case, “the question as to what constitutes the proximate cause of an injury may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to” (30 Ga. App. 231 (2, 4)); and since this principle of law as applicable to the instant case was clearly set forth by the charge, the fact that in charging upon the other and different question relating to the preponderance of evidence the court did not again repeat the principle thus already fully dealt with by the charge can not be accounted as error.

(&) “Where there is a conflict between the bill of exceptions and the record as to matters which form a part of the record, the latter will control.” West v. Embree, 146 Ga. 653 (1), 654 (92 S. E. 64); 4 Stevens’ Dig. Ga. R. 3103. Ground 5 complains of the following charge: “The law authorizes you, if you see fit to do so, to take into consideration the witnesses’ manner and demeanor on the stand, their interest or want of interest in the case, the opportunity they may have to know the fact about which they testify, and the inducement they may have, if any, to swear falsely.” It is contended that this excerpt is an “incorrect statement of tho law, because it was an attempt to charge the rules for determining where the preponderance lies as laid down in section 5732 of the code,” although it omitted from the rules so to be considered by the jury the rule that the jury may consider the intelligence of the witnesses, the nature of the facts testified to, the probability or improbability of the testimony of the witnesses, the personal credibility of the witnesses so far as it may legitimately appear from the trial, and the number of witnesses testifying in the case. It is contended that, having undertaken to charge the rules for determining the preponderance of the evidence, the court should have given the rules completely and accurately. Ground 6 complains of tho failure to give accurately, anywhere in the charge, “the rules for determining where the preponderance of the evidence rested in the ease,” as prescribed in section 5732 of the Civil Code (1910). It will be noted that in the exceptions the language charged -is not attacked as an erroneous statement of the rules for considering the credibility of witnesses. The judge correctly defined “preponderance of the evidence,” and was under no duty, .in the absence of a request, to state the additional rules for its determination. Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5); Wade v. Eason, 31 Ga. App. 256 (2). Had he in fact undertaken so to do, it would have been necessary to charge all the law upon that subject that was material and applicable. Thus, when a court gives in charge to the jury a part of section 5732 of the Civil Code (1910) as going to show how the preponderance of evidence is determined, it would be harmful error against the defendant to omit the portions indicated. L. & N. R. Co. v. Rogers, 136 Ga. 674 (3), 676 (71 S. E. 1102); Hinson v. Hooks, 27 Ga. App. 430 (108 S. E. 822). Where, however, as here, the record, which must control, shows that the excerpt quoted was not given in connection with the instruction on the preponderance of evidence, but, as the context shows, the court was dealing solely with the question of the credibility of the witnesses, and gave the substance of such rules, the omission to state, in connection with these rules determining credibility, other rules in the section as to the preponderance of evidence, in the absence of a written request therefor can not be accounted error. Shields v. Carter, 22 Ga. App. 507 (1) (96 S. E. 330); Hammett v. State, 27 Ga. App. 624, 625 (110 S. E. 624); Mullin v. State, 27 Ga. App. 765 (110 S. E. 334).

(c) Exception is taken _in the 9th and 11th grounds to the failure to charge that “plaintiff could not recover upon any acts of negligence other than those set out in her petition,” and that “defendant was bound to show the exercise of ordinary care only in respect to those acts which were alleged in plaintiff’s petition to be negligence.” Such an omission, in the absence of written request, can not be taken as error. Savannah & Atlanta Ry. v. Rowell, 28 Ga. App. 191 (1) (110 S. E. 513). The charge complained of in the 10th ground,-—“Look and see whether the defendant railway company used toward her (the plaintiff) this ordinary care; if they did, stop there and find for the defendant; if it did not, see what its negligence consisted of,”—could not, in view of the language immediately following,—“and whether she, by the exercise of ordinary care on her own part, could have avoided the injury to herself, if she was injured,” etc.,—and the preceding language specifically charging the contentions of the pleadings, reasonably have been taken by the jury as referring to anything except the issues actually raised; nor does it appear how that instruction, even if erroneous, could, under any evidence, have been injurious to the defendant.

(d) The 15th, 16th, 17th, and 21st grounds complain of the failure of the court to define the meaning of the term “proximate cause,” to charge the legal rules contained in sections 4508, 4509, and 4510 of the Civil Code (1910), and to explain their application to these questions and issues as raised by the amended answer. The court, however, did charge substantially in the language of the defendant’s pleading. It “was not error as against the defendant for the trial judge to follow the phraseology of the defendant’s plea” (Woodbridge v. Drought, 118 Ga. 671 (6), 45 S. E. 266), in view of the essentially accurate instructions given with reference thereto. Under the rule stated in the 2d division of the syllabus, there was no error in failing to define “proximate cause,” or in not further elaborating the application of the term to the particular issues of the case, in the absence of a written request.

4. The 12th, 7th and 8th grounds of the motion for a new trial are dealt with together in the brief of learned counsel for plaintiff in error. The 12th ground complains of this excerpt from the charge: “See whether she (the plaintiff), by the exercise of ordinary care on her part, could have avoided the injury to herself, if she was injured; for I charge you that, although the defendant railway company may have been negligent, yet if you should find that she, by the exercise of ordinary care, could have avoided the injury to herself, she could not recover.” Exception is taken to this language as putting upon the defendant “the illegal burden of showing that plaintiff could have avoided the injury to herself,” whereas under the language of code section 4426 it is only necessary, in order to defeat a recovery, for the jury to find that the plaintiff by the use of ordinary care could have avoided the consequences to herself of defendant’s negligence; that such charge was particularly harmful to movant because the actual physical contact and injury to plaintiff was caused by an automobile driven by a person who had no connection with defendant; and that this charge amounted to instructing the jury that it was necessary for the defendant to show not only that plaintiff, by the exercise of ordinary care, could have avoided the consequences of defendant’s negligence, but that she could have avoided injury to herself from the act of the driver of the automobile. The 7th ground alleges that the court omitted to charge “that the duty rested upon the plaintiff to exercise ordinary care to prevent the occurrence which resulted in her injury;” and that the charge given, in language above quoted, “is an entirely different proposition from the duty imposed by law upon plaintiff to use ordinary care not to put herself in a place of danger where she would be subject to injury.” The 8th ground sets up that the court omitted to charge that “if plaintiff’s injury was caused by her own negligence, that is to say by her failure to exercise ordinary care, she would not be entitled to recover.” No exception is taken to the failure of the court to charge the substance of code section 4426, providing that, “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The 7th and 8th grounds of the motion do not seem to strike at the contention urged in the brief now under consideration; and therefore, assuming that, even without a request, the substance of section 4426 should have been given, the failure to give it is not the point raised by the exceptions actually taken, but the question is, does the quoted excerpt complained of in the 12th ground give a rule inherently erroneous (see Wilson v. Small, 38 Ga. App. 587, 591, 113 S. E. 328), such as might reasonably have prejudiced the rights of the defendant? We think the language of the quoted excerpt from the charge can the better be dealt with by quoting it in connection with the language immediately preceding it and that immediately following. The judge had been instructing the jury upon the duty owed by the defendant to the plaintiff, and then this language followed: “Look and see whether the defendant railway company used toward her this ordinary care; if they did, stop there and find for the defendant. If it did not, see what its negligence consisted of, and whether she, by the exercise of ordinary care on her own part, could have avoided the injury to herself, if she’ was injured; for I charge jrou that, although the defendant railway company may have been negligent, yet if you should find that- she, by the exercise of ordinary care, could have avoided the injury to herself, she could not recover. I charge you further, if you should find that the direct and proximate cause of this injury was not the negligence of the defendant, but was a separate intervening cause generated by a third party, then I charge you in that event the plaintiff could not recover, and your verdict ought to be for the defendant.” Can it reasonably be said, where the judge charged the jury that, even if they should find that in certain definite particulars the defendant failed in its duty to exercise ordinary care toward the plaintiff, she still could not recover if she by the exercise of ordinary care could have avoided the injury, that such an instruction could possibly have reference to a failure of some other person to exercise ordinary care, the consequences of which she could not have reasonably avoided, especially where in the very next sentence he told them that if the proximate cause of the injury was not the negligence of the defendant but the act of a third part}', she could not recover at all. We think the idea which the judge sought to convey, and the only reasonable interpretation of the language used, was in accordance, and not in conflict, with the provisions of section 4436 of the code. In another portion of the charge (to which exception is taken in the 18th ground of the motion) the judge brought out the idea with still more distinctness and clearness, as follows: “If it [the railway company] used toward her this ordinary care and diligence, it could not be held liable, but if it did not use toward her this ordinary care and diligence which the law required of it, it might be held liable, provided she, by the exercise of ordinary care, could not have avoided the injury to herself, and provided the direct and proximate cause of the injury was not a separate and intervening third person.” See, in this connection, Seaboard Air-Line Ry. v. Andrews, 140 Ga. 254, 257 (3), 258 (78 S. E. 925); So. Ry. Co. v. Wallis, 133 Ga. 553 (3), 556 (66 S. E. 370); So. Ry. Co. v. Crabb, 10 Ga. App. 559 (4) (73 S. E. 859); So. Ry. Co. v. Weatherby, 20 Ga. App. 399 (3, 4) (93 S. E. 31).

5. Exception is taken in the 13th and 14th grounds to the following excerpts: “If you should find that the direct and proximate cause of this injury was not the negligence of the defendant, but was a separate intervening cause generated by a third party, then I charge you in that event the plaintiff could not recover.” “If there was no direct and proximate cause, because of a separate intervening third party, the mere fact a third party may have been negligent, perhaps equally negligent with the defendant railway company, if the defendant railway company was negligent, would not bar the right of the plaintiff to sue the defendant railway company for her injuries, provided it was liable. In other words, if two different parties injure a person and both are equally liable under the rules of law I have given you, if both are negligent, and both might be held liable for the injury, the plaintiff might sue one or both and recover, provided they are liable under the rules of law I have given you in charge, and provided the negligence of one is not the direct and proximate cause of the injury.” It is contended that these instructions were erroneous in that they “put upon the defendant the double burden of showing not only that the proximate cause of plaintiff’s injury was not the negligence of the defendant, but also the additional burden of showing that the proximate cause of the injury was a separate intervening cause generated by a third party,” whereas “the finding by the jury of either of these two facts disjunctively was legally sufficient to prevent a recovery,” that the defendant could defeat a recovery by showing that “its own negligence was not the proximate cause of the plaintiff’s injury;” and that the second excerpt was confused and misleading, and “did not submit intelligently to the jury the issue upon the question of proximate cause made by the pleadings and by the evidence.” The defendant’s original answer alleged that “the effective and proximate cause of injury was an intervening act of a separate and individual agency,” and its amendment alleged that “the effective and proximate cause of the injury to the plaintiff was the intervening act of a separate and independent agency.” The language quoted is not subject to the criticism of placing upon the defendant the double burden contended. The first excerpt was substantially in the language pleaded. The reasonable meaning and intent of the second excerpt sets forth a correct principle of law. In the case of Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (1) (100 S. E. 713), the following language was used: “No general yet precise and inflexible rule can be laid down with reference to the highly involved and much-discussed subject as to what constitutes the proximate cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause.”

C. It is conceded in the supplemental brief of counsel that the 19th and 20th grounds are insufficient, and these are abandoned. The exceptions taken in the 22d ground, complaining of the omission of an instruction on the question as to “whether defendant could or could not have anticipated the negligent acts on the part of said automobile driver,” and of an instruction that “if such acts could not have been anticipated, then defendant would not be liable,” are without merit, under the principles already discussed. In our opinion, the charge of the trial judge was full and fair; and he having refused a new trial upon the finding by the jury on the facts, this court does not feel authorized to set the verdict aside on any of the legal assignments made.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15567.
    McConnon & Company v. Martin et al.

    Decided January 17, 1925.
   Jenkins, P. J.

1. “Where the want of jurisdiction over the person is apparent upon the face” of the petition and proceedings, and the defendant has not waived his right to raise such question by plea, answer, or otherwise, he may take advantage of such defect by demurrer or motion to dismiss. Kendrick v. Whitfield, 20 Ga. 379; Wallace v. So. Express Co., 7 Ga. App. 565 (67 S. E. 694); Wash v. Kennedy, 23 Ga. App. 618, 620 (1) (99 S. E. 158). See also Northern Contracting Co. v. Maddux, 144 Ga. 686 (4) (87 R. E. 892); Hartsfield v. Morris, 89 Ga. 254 (15 S. E. 363); Jackson v. Hitchcock, 48 Ga. 491; Long v. Ivey, 12 Ga. App. 147, 148 (76 S. E. 1055); Gower v. Fowler, 1 Ga. App. 814 (57 S. E. 1054).

2. Jurisdiction as to the person may “be waived, so far as the rights of the parties are concerned, but not so as to prejudice third persons.” Civil Code (1910), § 5663; Raney v. McRae, 14 Ga. 589 (4), 593 (60 Am. Dec. 660); Central Bank v. Gibson, 11 Ga. 453 (4); White v. North Ga. Elec. Co., 139 Ga. 587 (3) (77 S. E. 789); Smith v. Woolard, 147 Ga. 58 (2), 60 (92 S. E. 867).

3. “Joint or joint and several obligors or promisors, or joint contractors . . residing in different counties, may be sued as such in the same action in either county in which one or more of the defendants reside.” Civil Code (1910), §§ 5529, 6541. “If any of the defendants reside out of the county, the clerk shall issue a second original and copy for such other county or counties, and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same issued.” Civil Code (1910), §§ 5567, 5591; Beasley v. Smith, 144 Ga. 377 (2), 379 (87 S. E. 293); Strauss v. Owens, 6 Ga. App. 415 (65 R. E. 161); Goetchius v. White, 11 Ga. App. 456 (75 S. E. 674).

4. Where joint or joint and several guarantors are sued jointly, without the principal, and the petition, process, and returns of service show that both defendants are residents of another county, the appearance of one defendant guarantor will not constitute a waiver of jurisdiction as to the person of the other guarantor. But the latter may specially appear, and by demurrer or motion raise the question, shown' on the face of the proceedings, that the court is without jurisdiction as to himself. The rule might be different under the holding made in Mumford v. Solomon, 8 Ga. App. 286 (4 a, b), 288 (68 S. E. 1075), where the defendant sought to bo bound by the waiver is not a cosurety, or, as here, a eoguarantor, but is the principal. Moreover, in the instant case it appears that the other non-resident guarantor, while filing a plea to the merits, did not in fact submit to jurisdiction of his person, but protested thereto in his demurrer filed at the first term, and subsequently filed a plea denying jurisdiction.

5. Under the facts appearing on the face of the record, the court was without jurisdiction over the person of the objecting defendant, and the judge did not err in dismissing the case as to him.

Judgment affirmed.

Stephens a/nd Bell, JJ„ concur.

Complaint; from city court of Nashville—Judge W. E. Smith. February 22, 1924.

Suit was brought in Berrien county, in the city court of Nashville, against Wilkerson, principal, as a resident of that county, and against Martin and Studstill as coguarantors. There was no service on Wilkerson, who it appears from the record was a nonresident of the State, and an order was taken striking his name. The record shows that neither of the guarantors was a resident of Berrien county. The petition alleged that Studstill was a citizen of Lanier county. It was originally alleged that Martin was a citizen of Berrien county, and process against him was directed to the sheriff of that county, but after the sheriff had made a return that neither of the defendant guarantors could be found in Berrien county, an order was taken reciting that Martin “has not been served with a copy of the petition and process in this cause,” and directing that “a new process issue, that the defendant . . Martin be served with the original petition and process and with copy of this order and new process, and that the June term be the appearance term as to . . Martin,” and the clerk thereupon issued a second process, procured by the plaintiff, which was directed to the sheriff of Lanier county, who thereupon made the following return: “I have this day 'served the defendant' . . Martin with a true and correct copy of the same in person.” The record does not show whether the reference to a “copy of the same” was intended to refer to the second process, or the order to perfect service, or to what paper. Martin filed a “demurrer” in the nature of a motion to dismiss the petition and process as directed to the sheriff of Lanier county; questioning the jurisdiction as to himself, and setting forth that the proceedings showed on their face that the city court of Nashville had no jurisdiction, and that the only court with jurisdiction was the superior court of Lanier county. Studstill also filed a demurrer, contesting the jurisdiction as to himself, and, though filing a plea to the merits, subsequently filed a plea denying jurisdiction. The court sustained the demurrer or motion of Martin, and dismissed the suit as to him; and the plaintiff excepted.

Hendricks & Hendricks, for plaintiffs.

17. D. Buie, P. T. Kniglil, for defendants.


author: Stephens, J.

text:
    15711.
    Render v. Jones Mercantile Co.
    Decided January 17, 1925.
    Complaint; from city court of LaGrange—Judge Duke Davis. May 3, 1924.

      L. B. Wyail, for plaintiff in error.

      Lovejoy & Mayer, contra.
   Stephens, J.

1. An act can not be subject to ratification unless done for and in behalf of the person adopting it and attempting to ratify it. Civil Code (1910), § 3569; Swicord v. Waxelbaum, 23 Ga. App. 297 (97 S. E. 891); Huffcutt on Agency (2d ed.), 44, 45, and eases there cited.

(a) In a suit by a merchant against a planter, to recover the purchase price of oats sold to the defendant’s overseer and charged by the plaintiff to the defendant, where there is no evidence to the effect that the overseer, in buying the oats, did so in behalf of the defendant, a subsequent promise of the defendant to the plaintiff to pay for the oats can not amount to a ratification.

2. A promise afterwards made by the defendant to the plaintiff to pay for the oats if the overseer will approve the bill is not an unconditional act, and therefore can not amount to a ratification of the act of the overseer, could it be assumed that such act is a proper subject-matter for ratification.

3. Since, by applying the above rulings to the evidence as here presented, the defendant was entitled to a direction of a verdict, certain evidence, offered by the defendant and rejected by the court, to the effect that the overseer himself was the owner of certain live stock on the defendant’s farm, over which the overseer had supervision, could have availed the defendant nothing; and, even if relevant and material, its exclusion under the present state of the record was harmless.

4. The verdict for the plaintiff was unauthorized. /

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


text:
    15854.
    Briesenick et al. v. Dimond.
   Bell, J.

1. Under' repeated rulings of the courts of this State, where a purchaser of real estate who inspected it was not prevented by fraud on the part of the seller from inspecting it properly, or from making any other inquiry or investigation with respect thereto, and failed to exercise diligence in doing so, he can not have an abatement of the purchase price because of false representations of the seller with respect to its character or value, although in buying the land ho may have acted upon misrepresentations of the seller touching these matters, under an express assurance from the seller that he would be safe in doing so. Tindall v. Harkinson, 19 Ga. 448; Allen v. Gibson, 53 Ga. 600; Newbern v. Milhollin, 31 Ga. App. 247 (20 S. E. 637), and citations. In other words, the courts, in such a case, will not rescue him from that against which by reasonable diligence he could have protected himself. The purchaser, however, is not obliged to exhaust all means at his command before relying upon the seller’s statements. Fenley v. Moody, 104 Ga. 790, 793 (30 S. E. 1002); Benson v. May, 149 Ga. 555 (1 a) (101 S. E. 177). Ordinarily the question as to whether, by the exercise of ordinary diligence, he could have discovered 'the falsity of the representations is one for the determination of the jury Summerour v. Pappa, 119 Ga. 1 (5) (45 S. E. 713).

2. Thus, where a purchaser of lands, who was sued for a balance of the purchase price, defended the action upon the ground of false and fraudulent representations of the vendor, upon which he relied and by reason of which he was damaged, namely, that the land was well drained and fully suited to farming, and where there was evidence from which the jury were authorized to find that, although the purchaser was a “practical drainage man” and made an actual inspection of the physical property, observing its soil, the contour of its surface, and the existing ditches thereon, such inspection was made at a season when the land, generally, was dry, and the truth or falsity of the representations depended not only upon the condition of the particular tract but also upon the topography of the surrounding country and the usual quantity of rainfall at other seasons, with which two last-named conditions the purchaser was unfamiliar, he being from a different and remote section of the country, it can not be said, as a matter of law, that his failure to make a more thorough inspection or to seek in some other way to correctly inform himself was such a lack of prudence on his part as to preclude a reliance by him upon the representations. Whether he failed to exercise proper diligence in the circumstances was a question for the jury. See Lester v. Bank of Adrian, 25 Ga. App. 116 (2) (102 S. E. 746); Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353); Bigham v. Hawkins, 140 Ga. 112 (78 S. E. 809); Woodward v. Western Canada Colonization Co., 134 Minn. 8 (158 N. W. 706, L. R. A. 1917C, 270), and notes. This is true notwithstanding there may have been attached to the original contract between the parties an engineer’s map indicating a swamp upon a portion of the land. See Summerour v. Pappa, supra. The court committed no error in the admission of testimony, and the evidence authorized the verdict found in favor of the defendant for a partial abatement of the purchase price.

3. The court erred, however, in instructing the jury, in effect, that if the purchaser, “by reason of his being unfamiliar with the conditions,” was unable to discover the falsity of the representations “from the inspection made of the property,” he was entitled to rely upon the seller’s statements. Whether the inspection actually made was attended with due diligence, and, even if so, whether a mere physical examination of the property, though careful, would in itself have met the requirements of common prudence, or whether some further investigation or inquiry ought to have been made, besides the mere inspection of the physical property, were matters exclusively within the province of the jury; that is to say, it was for the jury to determine what particular conduct of the purchaser, under the circumstances, would have satisfied the duty of diligence resting upon him. Compare Southern Ry. Co. v. Cunningham, 123 Ga. 90 (6), 96 (50 S. E. 979); Macon Ry. & Light Co. v. Vining, 123 Ga. 770 (2) (51 S. E. 719). This ruling applies to special grounds 3 and 4 of the motion for a new tidal. No other reversible error appears.

Decided January 17, 1925.

Mortgage foreclosure; from Glynn superior court—Judge High-smith. July 10, 1924.

Qonyers & Wilcox, for plaintiffs.

Krauss & Strong, for defendant.

Judgment reversed.

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


text:
    15864.
    WESTERN & ATLANTIC RAILROAD v. REED.
    1. Where under an act of the General Assembly a corporation’s correct name was Western and Atlantic Railroad, and where a suit was brought against it under the name of Western and Atlantic Railroad Company, the action was amendable by striking the word “Company.” Such amendment having been allowed, neither the petition nor the amendment was subject to any of the grounds of special demurrer complaining of the misnomer.
    2. In this action for a homicide alleged to have been caused by the negligent operation of one of the defendant’s railway trains the. petition set forth a cause of action. The allegations severally attacked by special demurrers, some upon the ground that certain information to which the defendant claimed to be entitled was not disclosed, some upon the ground that they were mere conclusions of the pleader, and others upon the ground that the facts pleaded did not constitute negligence, were not subject to any of the objections interposed. All the demurrers, both general and special, were properly overruled.
    Decided January 17, 1925.
    Action for damages; from Cobb superior court—Judge Blair. July 25, 1924.

      Tye, Peeples & Tye, Morris, Hawlcins <& Wallace, for plaintiff in error.

      Reuben R. & Lowry Arnold, Mozley & Gann, contra.
   Bell, J.

1. General and special demurrers to the complaint of Mrs. Nora Reed were overruled, and the defendant excepted. The suit as originally filed was against “Western & Atlantic Railroad Company,” and process was issued accordingly. One ground of the original demurrer was.that.defendant’s corporate name is “Western & Atlantic Railroad,” and that by such name only should it be sued. The plaintiff offered, and the court allowed, an amendment to the suit, striking the word “Company,” so that the.name of the defendant should read “Western & Atlantic Bailroad.” The defendant then demurred as follows:

“1. Defendant demurs to the original petition and moves to strike the same upon the ground and for the reason that it is not brought against the defendant in its proper corporate name;-and it is therefore against neither a natural, artificial, or quasi-artificial person, and, a real party defendant being essential to a valid suit, the plaintiff’s petition should be dismissed.

“2. Defendant demurs to the amendment offered by the plaintiff and moves to strike the same upon the ground and for the reason that there was nothing to amend by, the original petition having been instituted against the ‘Western and Atlantic Bailroad Company,’ whereas, under the laws of the State of Georgia, the defendant’s corporate name is ‘Western & Atlantic Bailroad,’ and by such name only can it be sued. The plaintiff’s original petition being against neither a natural, artificial, or quasi-artificial person, and a real party defendant being an essential to a valid suit, the plaintiff’s original petition is a nullity, and there is nothing by which the plaintiff can amend.

“3. Defendant demurs to paragraph one of the amendment offered by the plaintiff [in which the word ‘Company’ was stricken from the defendant’s name as alleged in the original petition], upon the grounds and for the reasons: (a) It seeks to make a new, different, separate and distinct party defendant to the suit', (&) It seeks to add thereto a party defendant where none previously existed.”

It is true that the defendant’s corporate name is as shown in the demurrer (see Ga. L. Ex. Sess. 1915, p. 138), but we nevertheless think that the demurrer was property overruled. “All misnomers, whether in the Christian name or surname, made in writs, petitions, bills, or other judicial proceedings on the civil side of the court, shall, on motion, be amended and corrected instanter, without working unnecessary delay to the party making the same.” Civil Code (1910), § 5686. This section, which is a codification of the act of 1850, has been held applicable to railroad companies. Rome Rail Road Co. v. Sullivan, 14 Ga. 277 (3); Johnson v. Central Railroad, 74 Ga. 397; Chattanooga R. Co. v. Jackson, 86 Ga. 676 (1) (13 S. E. 109); Maddox v. Central of Ga. Ry. Co., 110 Ga. 301 (1) (34 S. E. 1036); Atlantic Coast Line R. Co. v. Cook, 6 Ga. App. 128 (1) (64 S. E. 665). Under these decisions the court properly allowed the amendment, and was right in subsequently refusing to dismiss the petition merely because the defendant’s name was not correctly set forth in the original instance.

To sustain' its position the plaintiff in error cites a number of decisions by the Supreme Court, and one by this court, in which it is held that a suit against a county or a municipality, brought in any other than its correct legal name, is a nullity and not subject to amendment. See Storey v. Town of Summerville, 158 Ga. 182 (1) (123 S. E. 139), and other cases therein cited. It is insisted that the decisions of the latter class are controlling upon the question presented, and that those cases to which we have first above referred are distinguishable from the one at bar, in that in none of those eases were the precise questions made by the demurrers in the instant case raised or passed upon. It is also suggested that the two lines of cases referred to are possibly in conflict, and it is requested that unless we can agree with the contention of the plaintiff in error that the suit ought to have been dismissed, we certify the question to the Supreme Court, in order that the several decisions which we have first cited might “be reviewed and overruled . . because of the conflict between these authorities and those” relied on by the plaintiff in error.

Whether the exact points made by the demurrers in the present case have been raised or passed upon in any of the other cases, we are content to rule that they are untenable in view of the code section quoted above. While this section of the code has been held applicable also in the case of a county or a municipality, its application as against parties of this character seems to have been limited to instances where the defendant had appeared and pleaded to the merits in its true name, without raising the objection of misnomer. Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647 (2) (51 S. E. 585); Saunders v. Mayor &c. of Arlington, 147 Ga. 581 (1) (94 S. E. 1022). It may be that the difference in the application of the rule arises from the fact that the State can not be sued without its consent (Printup v. Cherokee R. Co., 45 Ga. 365 (1); Mayo v. Renfroe, 66 Ga. 408, 427), and that since counties and municipalities possess in a sense a part of the State’s sovereignty, provisions for their suit should be strictly complied with. See Civil Code (1910), § 384; County of Monroe v. Flynt, 80 Ga. 489 (1) (6 S. E. 173); Smith v. Floyd County, 85 Ga. 420 (2), 427 (11 S. E. 850); City Council of Augusta v. Hudson, 88 Ga. 599 (1), 605 (15 S. E. 678); Fleming v. Floyd County, 131 Ga. 545. A county is not liable to suit for any cause of action unless made so by statute. Civil Code (1910), § 384. While it seems to be otherwise in the ease of a municipality, the suability of which is possibly an incident of its corporate existence (20 Am. & Eng. Ency. Law 1145), it still enjoys in one phase of its character a part of the State sovereignty, and for this reason it perhaps might be entitled to be sued only in its correct name from the v.ery inception qf the litigation, where, as to corporations not possessing any quality of sovereignty and as to individuals, the suit, though originally alleging the defendant’s name defectively, would be subject to amendment.

The doctrine reannounced and applied in Storey v. Toion of Summerville, supra, appears to have originated in a case pertaining to a county and involving an application of the constitutional provision that suits by or against a county shall be in the name thereof (Civil Code of 1910, § 6594), and to have been later extended to cases of municipalities. Bennett v. Walker, 64 Ga. 327; Boon v. Mayor and Council of Jackson, 98 Ga. 490 (25 S. E. 518).

But whether we have remarked upon a distinction that does not exist, or whether the different cases are distinguishable upon any theory, the oldest decision in any way applicable to the question under consideration is that of Borne B. Co. v. Sullivan, supra, and this should be followed if there be a conflict between it and later cases. We are of the opinion that the act of 1850 referred to and applied in that ease is sufficiently comprehensive to dispose of all grounds of the demurrer relating to the misnomer. See Haynes v. Armour Fertilizer Works, 146 Ga. 832 (92 S. E. 648). We do not deem it necessary to certify any question to the Supreme Court upon this subject, especially since the plaintiff in error has open to it the remedy of certiorari.

2. The suit was for the death of the plaintiff’s son in a collision between an automobile in which he was riding and one of the defendant’s railroad trains. The ninth paragraph of each of the two counts of the petition alleged, that, as the automobile proceeded to cross over the defendant’s tracks, “a street-car on a track parallel to the defendant’s track was approaching the crossing and was very close thereto, and making considerable noise and attracting the attention of the occupants of the car.” The first count as amended showed the direction in which the street-car was moving, but this was not true of the second count. The defendant demurred to the allegations, in both counts, that the street-car was making considerable noise and was attracting the attention of the occupants of the car, upon the ground that the same were mere conclusions of the pleader, not based upon any facts anywhere alleged in the petition. There was no merit in these demurrers. Irrespective of whether the allegations were mere conclusions, they appear to have been made fox the general purpose of illustrating that the decedent was not himself negligent in failing to discover the approach of the defendant’s train. It was not necessary for the plaintiff to negative the decedent’s want of care (Atlantic Coast Line R. Co. v. Wildman, 29 Ga. App. 745 (3), 116 S. E. 858), and the petition, having given information not required, is not bad for a failure to supply it more in detail. Breman v. Rodbell, 31 Ga. App. 358 (5) (120 S. E. 697); Central of Georgia Ry. Co. v. Brandenburg, 129 Ga. 115, 119 (58 S. E. 658). Even if the allegations were designed to include facts as a part of the cause of action, it was unnecessary to allege the direction in which the streetcar was moving. Seaboard Air-Line Ry. v. Peeples, 9 Ga. App. 477 (2) (71 S. E. 758).

The fourteenth paragraph of each count was as follows: “The defendant’s engineer and fireman negligently failed to keep any proper lookout ahead as said crossing was. approached. The defendant’s said engineer and fireman failed to give any signal by bell, whistle, or otherwise, as ordinary care requires, as said crossing was approached. The defendant’s engineer was negligently running said engine at a speed of approximately forty miles per hour, which was negligence. The said grade was down towards said crossing, and not only did the said engine-crew fail to give any signal, but the engine was not making any noise by exhaust or otherwise, and slipped down silently towards said crossing.” In the demurrer.it was contended that the allegation, “But the engine was not making any noise by exhaust or otherwise, and slipped down silently towards said crossing,” should be stricken, because insufficient as a charge of negligence. This averment appears to have been made also for the purpose of showing that there was no want of care on the part of the decedent. The petition did not allege negligence in respect of the matter just referred to.

Paragraphs 13 and 15 of each count of the petition were as follows: “The said crossing was well traveled, and had been established over the defendant’s right of way with the defendant’s consent, and defendant had recognized the same by adapting its tracks to the crossing and by filling up the approaches thereto and making them passable for vehicles, and by filling in the spaces between its track, and said crossing was much traveled.” “(15) The said engineer was further negligent in that he negligently failed to have his engine under control as said crossing ivas reached and negligently failed to slow up or check the speed of his train as ordinary care required.” The allegations of each paragraph 15 were demurred to on the ground that the facts shown could not constitute negligence. It would be within the province of the jury to decide what was due care on the part of the railroad company and its employees with reference to the control it should have over its engine and train in approaching the well traveled crossing which, assuming the averments of the thirteenth paragraph to be true, had been established over the defendant’s right of way with its consent, and which it had recognized, as by certain acts alleged. It can not be held as a matter of law that the allegations of the fifteenth paragraph did not charge negligence, under the circumstances. The question is one which should be determined by the jury. See Davis v. Whitcomb, 30 Ga. App. 497 (13) (118 S. E. 488); Crawford v. Southern Railway Co., 106 Ga. 870 (1) (33 S. E. 826); Louisville & Nashville R. Co. v. Cline, 136 Ga. 863 (1), 865 (72 S. E. 405); Harris v. Central Railroad, 78 Ga. 525 (6) (3 S. E. 255).

Paragraph 16 of the first count, as amended, was as follows: “The said engineer and fireman were both further negligent in that both sajd engineer and fireman discovered the automobile with its back toward the train proceeding down said parallel McGfinis road toward said crossing, and it was apparent that said automobile would approach and go upon said crossing and it was apparent that the back of the driver and the other occupants of the antonim bile were towards the train, and ordinary care under such circumstances required that said train crew should have given signal before said automobile entered upon said crossing, in order to prevent it from getting upon the same, and yet both the engineer and fireman negligently failed to give any signal as the said crossing was approached and negligently failed to give any signal after discovering said automobile upon said road and before it reached said grade crossing.” It was not an objectionable conclusion, as was insisted in one ground of the special demurrer, to allege, with the other facts, that “it was apparent that the back of the driver and the other occupants of the automobile were toward the train;” nor is this allegation defective in that it fails to disclose to whom such fact became apparent, nor when, nor how it became apparent. The petition sufficiently implies that the fact became apparent to the engineer and fireman, and it was unnecessary to state the other facts with more particularity; nor was it essential that the plaintiff should allege who were the other occupants of the automobile.

Paragraph 16 of the second count of the petition alleged: “The said engineer and fireman were both further negligent in that when the said decedent and the automobile in which he was riding were almost upon said crossing, to wit, within twenty or forty feet thereof, and with his back and side to the engine, that said engineer and' -fireman, in the exercise of ordinary care, in looking ahead towards said grade-crossing over the railroad, should and could have discovered said automobile and its peril before it actually got upon said crossing, and in the exercise of such ordinary care could and should have given a signal of said engine, by whistle or otherwise, to warn the decedent and the driver of the automobile of the approach of the train, and said warning signal would have notified the driver and the decedent of the approach of the train, and they would not have gone upon said crossing had the same been given; but so negligently did the said engineer and fireman conduct themselves that notwithstanding that, in the exercise of ordinary care in looking out ahead towards said crossing, they would have discovered said close proximity of said automobile and its occupants, they failed'so to do, and negligently failed to discover the peril of .the occupants of said automobile, including the decedent, and negligently failed to give any signal by whistle or otherwise, and such negligence was the proximate cause of the collision with said automobile and the death of the deceased.”

This paragraph was demurred to generally, upon the ground that the facts therein set forth could not amount to negligence, and specially upon the ground that the statement that the decedent’s back and side were to the engine was contradictory, for the reason that the decedent could not possibly have both his back and his side to the engine, and it is not alleged which side of the decedent was to the train. The decedent could not, of course, have had his back and side both wholly toward the engine at the same instant, but he could have had both partly toward it. The petition is understood as alleging that the decedent was in a diagonal position relative to the engine. To sustain the demurrer complaining that it is not shown which side of the decedent was toward the engine, we think, would be doing that the like of which has not been done hitherto, or if so, will never be done again. As a matter of fact, it would be implied from the other allegations of the petition that the decedent’s right side was the one.mentioned.

With respect to the contention that no facts were set forth in the sixteenth paragraph of the second count which could amount to negligence, this question is disposed of adversely to the plaintiff in error by the authorities last cited above. See also Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). This paragraph it is true does not charge the defendant with actual notice of the decedent’s presence or peril, but the claim of its negligence must depend upon the question of whether under the circumstances it was its duty to exercise care to discover the automobile in which the decedent was riding before it actually got upon the crossing, and of the consequent duty to give some signal of warning.

Considering in connection with the allegations now under examination the averments of paragraph 13 with reference to the character of the crossing and the defendant’s knowledge of its existence, and its consent to the establishment of the same, it can not be said that the petition fails to show a duty of the defendant’s part to have anticipated the decedent’s presence in the perilous situation within twenty to forty feet of the tracks. Lowe v. Payne, supra. Where preliminary facts necessary to raise the duty of knowledge have been set forth, an allegation in the nature of a legal conclusion that the party sought to be charged, ought, in the exercise of ordinary care, to have known, is not objectionable, and in such a case it can not be said that the failure to know was not negligence. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (2) (116 S. E. 57).

A further contention made by a special demurrer was'that the allegations in paragraph 16 that “said warning signal would have notified the driver and the decedent of the approach of the train, and they would not have gone upon said crossing, had the same been given,” are a mere conclusion, with no facts alleged upon which to base the same. We can not concur in the position taken. These averments are evidently intended to illustrate that if the warning had been given it would have been effective. If it would not have been effective, the failure to give it would not have constituted negligence actionable for the decedent’s homicide. Central of Ga. Railway Co. v. McKey, 13 Ga. App. 477 (3) (79 S. E. 378). It is fair to assume, in the absence of anything to the contrary, that if the signal had been given it would have been heard and heeded. By this language the plaintiff was only declaring that but for the alleged negligence the injury and death of her son would not have occurred. If it would have occurred in spite of the negligence the plaintiff could not recover. The averments objected to possibly could not help the complaint, but we are unable to see how they hurt it. It will be necessary for the jury to infer that the decedent would not have gone upon the track if signals of warning had been given before they would be authorized to find in favor of the plaintiff because of the failure to give signals. As suggested in the brief of counsel for the defendant in error, it can hardly be assumed that the decedent and the driver of the car would deliberately and voluntarily have hurled themselves into certain death, by proceeding immediately in front of a rapidly moving train. The plaintiff was merely alleging that the defendant’s negligence was the proximate cause of the death, which could be done by the statement of a conclusion based upon the special facts pleaded.

“The petition should plainly and distinctly set forth the elements necessary to a recovery. Legal results arising from 'the facts alleged may be pleaded in general terms or in the form of a legal conclusion. A petition so drawn is good against demurrer. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (1) (58 S. E. 524). A conclusion in a pleading will not be subject to special demurrer if the inference stated therein may be legitimately drawn from the special facts pleaded.” Tufts v. Threlkeld, 31 Ga. App. 452 (5) (121 S. E. 120).

If we -are correct in what we have said above, it follows that the court did not err in overruling the general demurrer to the petition as a whole. In our opinion, the demurrers, general and special, were properly overruled.

Judgment affirmed.

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


text:
    15868.
    Hercules Powder Co. v. Rhoden et al., for use, etc.
    Decided January 17, 1925.
    Complaint; from city court of Brunswick—Judge Butts. July 14, 1934.

      Bennet, Twitty & Reese, for plaintiff in error.

      Frank H. Harris, Jj. N. Carrington, contra.
   Bell, J.

1. “While ancillary to tlie main suit, a garnishment is a distinct cause of action between different parties, requiring a separate and independent judgment.” Dent v. Dent, 118 Ga. 853 (1) (45 S. E. 680). It is in effect a suit by the plaintiff against his debtor’s debtor.' Holmes v. Pope, 1 Ga. App. 338 (1) (58 S. E. 281); Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545 (1) (59 S. E. 473). It could not embrace a third suit against the garnishee by a stranger who comes in and claims the fund.

2. Where a garnishee answers that he is indebted either to the defendant or to a named third person in a sum specified, but does not know which of them he owes, and further alleges that he is not indebted to the defendant in any other or further sum, averring his readiness to pay the money into court, and where such third person, on being given notice by the garnishee of the pendency of the proceeding and of the contents of the answer, comes in and files a claim alleging that the money does not belong to the defendant but is the property of the claimant, a judgment awarding the fund to the claimant would not estop him from suing the garnishee for a obalance alleged to be due him, under the same contract by virtue of which the indebtedness arose which the garnishee had admitted to be due some one and had paid over to the claimant in compliance with such judgment. The issue made by the claim in this case was one existing solely between the plaintiff in garnishment and the claimant, and related only to the ownership of the particular fund. It in no way involved, and could not have involved, a determination of the amount or extent of the garnishee’s indebtedness as between the garnishee and the claimant. Hammett v. Morris, 55 Ga. 644 (1); Phillips v. Thurber, 56 Ga. 393 (2); Hirsch v. Lumbermen’s Supply Co., 130 Ga. 555 (1) (61 S. E. 225); Mixon v. Lacy, 28 Ga. App. 606 (112 S. E. 377); Civil Code (1910), § 4336. .Where to such subsequent suit the defendant therein filed a plea setting-up in substance the facts stated above, a verdict found in favor of the plea was contrary to law, and the court properly granted the plaintiff’s motion for a new trial.

Judgment affirmed.

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


text:
    15202.
    Spielberger v. Hall & Company.
    Decided February 11, 1925.
    Certiorari; from Fulton superior - court—Judge Humphries. November 12, 1923.

      Maddox & Maddox, for plaintiff in error.

      Yirlyn B. Moore, contra.
   Jenkins, P. J.

1. Assuming that the amendment to the petition for the recovery of real-estate brokerage commissions, filed by the plaintiff in the municipal court of Atlanta, introduced a new cause of action, as permitted by a section of the act establishing that court (Ga. L. 1913, p. 164), the attack upon that section as unconstitutional was, under the ruling' of the Supreme Court in this case, insufficiently made, and could not be considered. Spielberger v. Hall, 159 Ga. 511 (126 S. E. 391).

2. The exceptions to the answer of the municipal-court judge to the defendant’s petition for certiorari, as insufficiently verifying certain allegations of fact set forth in the petition, present no ground for reversal by this court of the judgment of the superior court overruling the certiorari, since it appears from the record that the superior-court judge treated such allegations as irroperly verified facts. Likewise, the traverse of that portion of the municipal-court judge’s answer relating to the argument of counsel in the municipal court was properly disallowed and overruled by the superior court, upon the grounds, assigned in that judgment, that the language used and sought to be used by counsel in argument does not sufficiently appear in the petition for certiorari and the traverse of the answer thereto, and the assignment of error is not sufficiently definite to show reversible error.

3. The municipal-court judge certified that “there was no error alleged either on the admission or the exclusion of any testimony;” and the only remaining assignments of error save the general grounds appear to relate to certain instructions in the charge and to a refusal to charge. The verdict for the plaintiffs being fully authorized by the evidence, and it appearing, from the charge, that the vital contentions of the defendant and the law of the case, as the superior-court judge recites in his judgment, were “submitted clearly and fairly to the jury,” and no “harmful error was committed,” the judgment overruling the certiorari must be affirmed.

Judgment affirmed.

Stephens and Bell., JJ., concur.


text:
    15323.
    Mooneyham v. Nashville, Chattanooga & St. Louis Railway Co. et al.

   Stephens, J.

1. A passenger on a railroad whose point of destination is on the line of a connecting carrier, and who is traveling on a through ticket calling for immediate and continuous passage to destination upon the next train of the connecting carrier leaving the junction point for the point of destination, still preserves his status as a passenger when, after leaving the train at the junction point, he continues to wait there in the waiting-room of the depot, for the purpose of continuing his journey, in accordance with the terms of his contract of passage, upon the next train of the connecting carrier. Riley v. Wrightsville &c. R. Co., 133 Ga. 413 (65 S. E. 890, 24 L. R. A. (N. S.) 379; 18 Ann. Cases, 208); 10 C. J. 630.

2. Assuming that a carrier is under no legal duty to maintain and keep open at a junction point a waiting-room for the accommodation of passengers (Civil Code of 1910, § 2727, and Rule 10 of the Georgia Public Service Commission, copied in 10 Ga. App. 229) who are deposited at the junction point at 8 o’clock p. m. for transfer to a train leaving there the next morning at 7 o’clock, yet where the carrier does maintain and keep open a waiting-room for the convenience of through passengers, thus impliedly inviting them to avail themselves of the accommodation of the waiting-room, a passenger who avails himself of such accommodation by accepting the invitation and occupying the waiting-room is, by virtue of his right as a passenger, entitled to remain in the waiting-room and enjoy its accommodations while waiting to make connection with the outgoing train; and if the carrier’s agent in charge of the depot' unjustifiably evicts him, he may maintain an action against the carrier. This ruling is not in conflict with Smith v. Seaboard Air-Line Ry., 10 Ga. App. 227 (73 S. E. 523). There the plaintiff, who had come to the depot, not at a junction point, for the purpose of becoming a passenger upon one of the defendant’s trains, was evicted from the defendant’s waiting-room at 9 o’clock p. m., more than an hour prior to the scheduled time of arrival of the train which he intended to board, which was after 10 o’clock p. m. and before the time when the defendant was, either under Rule 10 of the Public Service Commission or under the Civil Code (1910), § 2727, required to open the waiting-room or receive any one therein as a passenger. The court held (one judge dissenting) that the plaintiff, under such circumstances, was not a passenger, and therefore was not entitled to remain in the waiting-room, and could not recover of the defendant for being evicted therefrom. To the same effect is the decision in Huggins v. Atlanta & West Point R. Co., 11 Ga. App. 805 (76 S. E. 364), which is based expressly upon the authority of Smith v. Seaboard Air-Line Ry., supra.

3. Where the waiting-room at the junction point was maintained by both carriers, and the eviction Avas caused by the agent of both, acting within the scope of his authority, both carriers are liable.

4. The petition in a suit by the passenger against both carriers set out a cause of action, and it was error to sustain a general demurrer filed by both defendants.

5. Any statements made to the plaintiff by the agent of the initial carrier when selling the ticket to the plaintiff at the initial point, or any statement made to the plaintiff by any of the employees upon the train of the initial carrier, to the effect that the waiting-room at the junction point would remain open all night for the accommodation of the passenger, are not binding upon the carrier as an agreement with the passenger to keep open the waiting-room for his accommodation, since it does not appear that such employees, as agents of the carrier, had any authority over or duties to perform with respect to the waiting-room. Such allegations in the petition were properly stricken on special demurrer.

Decided February 11, 1925.

Action for damages;.from Floyd superior court—Judge Wright. January 5, 1924.

Application for certiorari was denied by the Supréme Court.

Porter & Mebane, for plaintiff.

Maddox, Matthews &-Owens, Lamar Gamp, L. A. Dean, Tye, Peeples & Tye, for defendants.

Judgment reversed.

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


text:
    15341.
    Nelson v. Brannon.
    Decided February 11, 1925.
    Lien foreclosure; from city court of Floyd county—Judge Bale. January 12, 1924.
   Stephens, J.

1. This being a foreclosure by an assignee of a landlord’s lien for supplies against a tenant, and the counter-affidavit containing no denial of any of the allegations in the affidavit of foreclosure, but the only defense made therein and presented by the evidence being that the defendant was fraudulently induced to execute the contract creating the lien, the insufficiency of the evidence, as to proof of a demand for payment having been made by the plaintiff upon the defendant, or as to the time when the lien was transfei'red to -the plaintiff, will not be inquired into on a motion for a new trial by the defendant.

2. An allegation in the counter-affidavit filed by the defendant, that he is not indebted to the plaintiff in fi. fa. “in the way and manner set forth in any sum whatsoever,” is insufficient as a denial of the allegations above referred to.

3. An instruction to the jury that if the defendant was fraudulently induced to execute the contract by the landlord or any person representing the landlord, the jury should find in favor of the defendant, is not error against the defendant because the court did not go further and instruct the jury that they should find for the defendant if he was fraudulently induced to execute the contract by the plaintiff or any one representing the plaintiff. Moreover, this latter defense was submitted to the jury, as the court elsewhere charged the jury that if the defendant had been defrauded “by any of the parties in this case,” and the defendant believed that he was executing a mortgage when as a matter of fact he was executing a landlord’s lien for supplies, the jury should find for the defendant.

4. The court, fairly to the defendant, instructed the jury upon the issue of fraud made by the counter-affidavit. The defendant admitted owing the amount sued for. No error of law appears, and the verdict rendered for the plaintiff was authorized under the law and the evidence.

Judgment affirmed.

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

James Maddox, for plaintiff in error.

Paul H. Poyal, contra.


text:
    15343.
    Brooks v. Folds.
    Decided February 11, 1925.
    Claim; from city court of Carrollton—Judge Hood. December 11, 1933.
   Stephens, J.

1. Contracts, even where the rights of strangers are affected, will nevertheless be construed so as to effect the manifest intention of the contracting parties, where such construction contravenes no rule of law. Civil Code (1910), § 4266. In so doing, words contained in the contract will be construed in the sense in which they are apparently mutually employed by the contracting parties, irrespective of their proper and logical meaning. Pioneer Mercantile Co. v. Freeman, 29 Ga. App. 11 (113 S. E. 21). Thus, a promissory note which purports to be given for the purchase money of three mules, titles to which, by the terms of the note, are “reserved” in the payee until full payment of the purchase money, will, although it appears that only two of the mules were in fact purchased by the maker of the note from the payee and the other mule was the property of the maker, be construed as lodging the title to all three of the mules in the payee of the note for the security of the purchase money of the two mules actually purchased. Since the manifest intention of the parties was to secure the indebtedness by conveying the title to the three mules to the payee, the expression in the note providing that title to the property is “reserved” in the payee of the note until the note is fully paid should be liberally construed, in accordance with the clear and manifest intention of the parties, as lodging the title to the three mules in the payee, and should not be narrowly construed, contrary to the manifest intention of the parties, as reserving title in the payee to the two mules only to which he in fact had title. See, in this connection, Arnold v. Booth, 24 Ga. App. 416 (100 S. E. 779)!

2. Where the mule which had belonged to the maker and which had not in fact been purchased by him, but the title to which had only been, by such reservation of title, conveyed by him as security for the purchase of the other two mules, was levied upon under a mortgage thereon subsequently made by the maker of the note, and where the payee of the note filed a claim of title thereto, the evidence (since there could be no issue of fraud, as the plaintiff in execution became a creditor afterwards) demanded a verdict for the claimant, and the verdict directed by the trial court in behalf of the plaintiff in execution was without evidence to support it.

Judgment reversed.

Jenhms, P. J., and Bell, J., concur.

Samuel J. Boykin, Boykin & Boykim, for plaintiff in error.

Smith & Taylor, contra.


text:
    15374.
    Elder, administrator, v. Hewitt.
   Stephens, J.

1. One who liad been an agent of a deceased person is not, in a suit to which the representative of the deceased is a party, incompetent, under the exceptions in section 5858 of the Civil Code (1910), to testify to transactions between himself and the deceased. Jackson v. Bennett, 98 Ga. 106 (26 S. E. 53).

2. One who does not represent the lender and who procures for another a loan of money is the agent for the boi'rower. Jackson v. Bennett, supra.

3. Although an agent to procure a loan of money for the borrower is an attorney at law, such employment does not establish the relationship of attorney and client, so as to render the agent incompetent to testify as to transactions with his principal. Turner v. Turner, 123 Ga. 5 (6) (50 S. E. 969, 107 Am. St. Rep. 76); Burnside v. Terry, 51 Ga. 186.

4. In an action by the lender against the administrator of a deceased borrower, to collect the loan, such an agent is not incompetent to testify as to such transactions with his deceased principal, although the agent may be the lender’s attorney in the suit. Jackson v. Bennett, supra.

5. The title to land vested in a creditor of an intestate is not divested by an administrator’s sale. Daniel v. Wilson, 91 Ga. 238 (4) (18 S. E. 134).

6. As against the administrator, who at the time of the administrator’s sale of the property had actual notice of the existence of the creditor’s claim and also of the deed to the property by the intestate to the creditor to secure the indebtedness, the creditor is not estopped to assert a special lien upon the property in a suit by him against the administrator upon such indebtedness by reason of the creditor’s presence at the sale and failing at the time to give notice of his title. Myrick v. Liquid Carbonic Co., 137 Ga. 154 (73 S. E. 7, 38 L. R. A. (N. S.) 554).

7. Assuming that neither one of the two witnesses to a deed conveying land is such an officer as is authorized to attest deeds, the deed nevertheless is good as a conveyance of title.

8. Before a conveyance can be set aside as fraudulent and the vendee’s title declared void, the vendee must have been a party to the fraud. Where, in the trial of an issue raised as to fraud, there was no evidence whatsoever tending to connect the vendee with any fraudulent intent on the part of the vendor, evidence offered tending to establish a fraudulent intent by the vendor prior to the execution of the deed, of which the vendee had no knowledge, was properly excluded, since, when taken with the other evidence, it was insufficient to show fraud.

9. This being a suit by the payee against the administrator of the maker, upon a promissory note secured by deed from the intestate to the plaintiff, and it appearing from the above rulings that the court committed no error in the admission or exclusion of evidence, and that a verdict and judgment for the plaintiff, establishing a special lien upon the property, was as a matter of law demanded, the court did not err in directing a verdict for the plaintiff.

Decided February 11, 1925.

Complaint; from Jackson superior court—Judge Fortson. January 5, 1924.

Ray & Ray, for plaintiff in error.

G. A. J ohns, contra.

Judgment affirmed.

Jenlcms. P. J., and Bell, J., eonour.