text:
    15853.
    Atlantic Coast Line Railroad Co. v. Bradshaw.
   Stephens, J.

1. No law of this State imposes upon a railroad engineer an absolute duty to have his engine under such control, when approaching a crossing, that he can bring it to a stop in order to avoid injury to any person at the crossing. No such absolute duty is placed upon him by the provision in the act approved August 19, 1918 (Ga. L. 1918, p. 212; 8 Park’s Code Supp. (1922), § 2677 et seq.), that a railroad engineer “shall otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on such crossing.” Under the statute it is a jury question whether due care under the circumstances will require the engineer, when approaching a crossing, to have his engine under such control that he can bring it to a stop, if necessary, in order to avoid injury to a person at the crossing.

2. In a suit to recover of a railroad company for damage alleged to have been caused at a public crossing, it was error for the court to instruct the jury that “our statutes require railroad engineers to have their engines under such control that they can stop at such crossings when necessary in time to prevent injury.”

3. In such a suit evidence to the effect that a highway which crosses a railroad is maintained by the public and is used by the people generally in crossing the railroad authorizes an inference of fact that the highway is a public crossing. Atkinson v. Fountain, 10 Ga. App. 307 (73 S. E. 534); Bugg v. Cook, 32 Ga. App. 116 (122 S. E. 714). The act of 1918, supra, relative to the duty of engineers at public crossings, was adapted to the evidence and was properly given in charge.

4. Applying the ruling in Southern Ry. Co. v. Nichols, 135 Ga. 11 (4) (68 S. E. 789), the court did not err as complained of in the fourth ground of the motion for a new trial.

Decided September 11, 1925.

Damages; from city court of Tifton—Judge J. H. Price. July 25, 1924.

IF. B. Bennet, Bennet & Branch, for plaintiff in error.

J. 8. Ridgdill, C. A. Christian, contra.

5. The petition as amended set out a cause of action and was not subject to the demurrer.

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15938.
    Mechanics Insurance Company of Philadelphia v. Teat.
   Stephens, J.

1. In a suit to recover under a policy of insurance for the destruction by fire of an automobile, where one of the defenses interposed by the defendant was that the insured had breached a warranty in the policy, to the effect that the automobile was new when purchased by the insured and was not at the time second-hand, and where there was evidence to the effect that the insured purchased the automobile from another person, who had purchased it from a dealer and had used it for about three weeks prior to its purchase by the insured, a charge by the court that, “although a car may have been purchased by some other person and there may have been some use of it, if there had been no depreciation either in its intrinsic value or its market value, it would be a new car,” was not subject to the exception that it was vague and confusing to the jury, in that it did not clearly set forth what was meant by “other person.” Nor was the charge subject to the exception that it failed to give a correct definition as to what constitutes a new automobile, or that it withdrew from the jury the right to determine what constitutes a new automobile. Whether the charge contained a correct definition of a new automobile as contradistinguished from a second-hand automobile, in the sense in which these words are used in the policy, is not-decided, since this question is not raised in the assignments of error.

2. Evidence that a mortgagee, which appears to be either a corporation or a partnership, went into bankruptcy, and that the witness went to the county of the mortgagee’s residence and made “an investigation of the case,” was, in the absence of evidence of any effort to locate any of the members of the firm or officers of the corporation or to account for them, and in the absence of any evidence of any attempt to seek the original mortgage in the hands of the mortgagor, insufficient to show such diligence in seeking the original mortgage as to lay the foundation for the introduction of the record of the mortgage as secondary evidence. Sims v. Scheussler, 2 Ga. App. 466 (58 S. E. 693). The court, therefore, did not err in excluding the record from evidence.

Decided September 11, 1925.

Complaint; from Floyd superior court—Judge Wright. September 30, 1934.

Spalding, MacDougald & Sibley, Maddox, Matthews & Owens, for plaintiff in error.

Lamar Gamp, L. A. Lean, contra?

3. There being no evidence from which the jury could arrive at the value of the automobile at the time of its destruction by fire, which was nine months after the issuance of the policy, the verdict found for the plaintiff, which was in an amount representing the face value of the policy, was unauthorized.

Judgment reversed.

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


text:
    16100.
    Holland v. Georgia Southern & Florida Railway Co.
   Stephens, J.

1. At a place where people are accustomed to cross a railroad-track, which is also a place used by passengers boarding and alighting from trains, and which is generally used by the public with the knowledge and consent of the railroad company, the company owes no duty to a person who is merely standing by the side of the railroad-track while a train is passing, and who is not there for the purpose of crossing the track or boarding the train, to refrain from negligently allowing a lump of coal to fall from the train and rest upon the ground by the side of the track, where, in moving away from proximity to the passing train, he stumbles over the coal and is thrown under the train and injured.

2. In a suit by the injured person against the railroad company to recover for the injuries thus sustained, a petition alleging the above facts set out no cause of action, and Ayas properly dismissed on general demurrer.

3. Construing the petition most strongly against the pleader, allegations therein that the place at Avhich the plaintiff Avas injured Avas used “for other purposes,” and that the plaintiff Avas “standing” by the side of the railroad-track, are insufficient as alleging that the place was used for any other purpose than is recited in paragraph 1 above, and are further insufficient as alleging that the plaintiff intended to cross the railroad track or board the train.

4. This case is distinguishable from Fraser v. Charleston & Savannah Ry., 75 Ga. 222, where the sole question Avas as to the inferences of negligence which the jury would be authorized to drayv from the evidence, whereas the question in the case under consideration is the sufficiency of the allegations in the petition, which must charge either directly or by necessary inference sufficient facts to constitute a cause of action.

5. At the time or before the judgment of this court is made the judgment of the trial court, the plaintiff is given leave to amend his petition by alleging sufficient facts to shoAV that at the time of the injury the plaintiff was at a place where he had the right to be, and that the railroad owed him the duty to exercise due care for his safety. Upon an allowance of such an amendment, the order sustaining the demurrer will be vacated. Civil Code (1910), § 6205; Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264) ; Holston v. Holcomb, 30 Ga. App. 651 (4) (118 S. E. 577).

Decided September 11, 1925.

Action for damages; from Bibb superior court—Judge Malcolm D. Jones. November 21, 1924.

R. D. Feagin, J. F. JJrquhart, for plaintiff.

J. E. Hall, C. J. Bloch, for defendant.

Judgment affirmed, with direction.

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


text:
    16137.
    Buckeye Cotton-Oil Co. v. Murphy & Sons.
    Decided September 11, 1925.
    Attachment; from city court of Jefferson—Judge Bryson. November 29, 1924.

      Pemberton Cooley, Egbert Beall, for plaintiff in error.

      8. J. Nix, J ere 8. Ayers, contra.
   Stephens, J.

1. In a suit by the seller against the purchaser, to recover - the purchase price of cottonseed sold by the ton and delivered to the purchaser, evidence that the purchaser, after the execution of the contract and before delivery by the seller of any of the cottonseed contracted to be sold, made a parol agreement with the seller to the effect that the seed should be weighed upon the seller’s scales, was competent as an admission by the purchaser as to the correctness of the weights of the seed when weighed upon the seller’s scales.

2. The testimony of a salesman as to the weight of a commodity sold by him is not rendered inadmissible because he has not subscribed to the oath required of him as a salesman of such a commodity under section 1844 of the Civil Code (1910).

3. Under the above rulings the court did not err in the charge to the jury, or in admitting certain testimony objected to by the defendant.

4. The verdict found for the plaintiff was authorized by the' evidence.

Judgment affirmed.

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


author: Bell, J.

text:
    15823.
    UNITED STATES CASUALTY CO. v. SMITH.
    1. Where upon the filing of an application by an employee for compensation under the workmen’s compensation act the insurance carrier and the employee made a settlement by an agreement approved by the industrial commission, the insurance carrier, on the hearing of a subsequent application by the employee for a review of the settlement upon the ground of a change in his condition, was, in the absence of fraud, accident, or mistake, and in the absence of a reservation of such right in the agreement, precluded from raising the question of whether the original injury arose out of and in the course of the employment.
    2. A stipulation in the settlement agreement, that the employer and the insurance carrier were relieved and forever discharged from all claims and demands whatsoever by reason of the original injury, did not bar such application for review, nor preclude an award thereon contrary to the stipulation.
    3. The provision of section 25 of the act, to the effect that the right to compensation shall be forever barred unless a claim be filed with the industrial commission within one year after the accident, does not apply where the employee is seeking a review of an award or settlement, under section 45.
    4. The industrial commission was authorized to find that the employee was suffering from the disease of blastomycosis, and that it resulted naturally and unavoidably from his original injury. The superior court did not err in refusing the insurance carrier’s appeal.
    Decided September 11, 1925.
    Appeal; from Fulton superior court—Judge E. D. Thomas. July 5, 1924.
    Certiorari was granted by the Supreme Court.

      Harry L. Greene, McDaniel & Neely, for plaintiff in error.

      Frank P. Stockton, contra.
   Bell, J.

In June or July, 1921, 0. L. Smith, as an employee of the International Vegetable Oil Company, was repairing a pipe in a well when water leaking out of a drain-pipe fell upon the back of his neck and caused a blister about the size of a nickel or a quarter. The blister was burst and became a sore. Some time in July or August of the same year the wound was exposed to ammonia gas, which enveloped him as he was repairing a pipe from which the gas was escaping. As described by the employee, it was not a “liquid gas,” but was lighter than air, “and it will burn your hand to hold a pipe.” “It will kill you if you get enough of it down.in you. It will strangle you to death.” His neck then commenced to give him trouble, and he was forced to remain away from his work for about a week, after which he returned to his employment and continued to work for approximately two months. He then quit on the advice of a physician, and was never able to work again.

On November 16, 1921, he made application to the industrial commission for compensation under the workmen’s compensation act. At the hearing of his application on November 25, 1921, he testified that he was injured by “being burned on the back of his neck by steam and poisoned by ammonia gas.” At this time, it appears, his trouble was confined to his neck, except that he could not stand to be around gas or in a warm room, and was at times weak or fainty. At the close of this hearing the presiding commissioner appointed a physician to make a physical examination of the claimant and to report thereon. Before a decision was rendered the claimant made an application to submit further proofs, and a new hearing was ordered, to be held on December 29 following. On December 20 an agreement had been signed by the insurance carrier and the claimant, for the payment of compensation for nine weeks at the rate of $12 per week, in which it was stipulated that the facts and the amounts to be paid were “in strict accordance with the compensation law.” The settlement was submitted to and approved by the commission and the case was apparently closed. The order of approval was dated December 30.

On August 18, 1923, the claimant moved for a review and modification of the previous award or settlement, on the ground of a change in his condition. This application was granted and a hearing was ordered for October 26 following. In this hearing it was developed, by the evidence, that the applicant’s condition had continued to grow worse from the date of the settlement. Sores had appeared soon afterwards upon different parts of his person, similar to the one upon his neck. His general system appeared to be diseased, and one of his arms had become so affected that it was necessary to amputate it on July 4, 1922. Certain physicians testified that he was suffering from a disease known as blastomycosis. At the conclusion of this evidence it was found by the commissioner “that the claimant’s injury arose out of and in the course of his employment, and that the disease of blastomycosis arose naturally and unavoidably from the accident suffered by the claimant in 1921.” An award of compensation was made for 350 weeks (less the nine weeks covered by the settlement) at $12 per week. Upon a review by the full commission the finding and award by the sole commissioner were affirmed, the insurance carrier entered an appeal to the superior court, where the appeal was denied, and it excepted. Other facts are stated in the opinion.

It is contended that the commission erred in ruling that the approved settlement of December 29, 1921, closed the question as to whether the original injury arose out of and in the course of the employment, and in refusing to allow the insurance carrier to introduce evidence upon that issue. It is provided in section 19 of the workmen’s compensation act of this State (Ga. L. 1920, p'. 167) that settlements between an employee and employer are to be encouraged so long as the amount of compensation and the time and manner of payment are in accordance with the provisions of the act, hut that a copy of the settlement agreement shall be filed with the commission, and shall not be binding until approved by the commission. See also section 55. The approval of the settlement is in the nature of a judgment, and necessarily implies, when there is no reservation to the contrary in the agreement, that the injury arose out of and in the course of the employment. The more especially is this true where the agreement stipulates that the facts were in accordance with the act. It might be possible for a settlement agreement to provide that the employer, or insurance carrier, was not committed to the proposition that the injury had arisen in and out of the employment, and in case of the approval of such agreement by the commission such issue would be open and subject to contest in the event of a subsequent application for a review or modification' of the settlement on the ground of a change in the employee’s condition. Whether or not the commission would approve a settlement- agreement containing such reservation if submitted, it might not be unwise for it to do so, as such action might tend the more to encourage settlements and reduce litigation.

In any event, the agreement made by the insurance carrier and the employee in this case, when approved by the commission, was, so far as it related to the cause and circumstances of the original injury, the equivalent of a judgment to the effect that the injury was a compensable one, and it would not have been compensable unless it arose out of and in the course of the employment. In the absence of fraud, accident, or mistake in the making of the agreement, and in the absence of a reservation of such right, the insurance carrier was not entitled to be heard upon that question upon the application for a modification of the former award or approved settlement. Compare Webster v. Dundee, 93 Ga. 278 (3) (20 S. E. 310); Price T. Carlton, 121 Ga. 12 (2) (48 S. E. 721, 68 L. R. A. 736); Allen v. Allen, 154 Ga. 581 (4) (115 S. E. 17) Bloomington D. & C. R. Co. v. Industrial Board, 276 Ill. 120 (114 N. E. 511); Pedlow v. Swartz Electric Co. (Ind.), 120 N. E. 603; Ætna Life Ins. Co. v. Shiveley (Ind.), 121 N. E. 50; 2 Schneider’s Workmen’s Compensation, 1270, § 500.

It is also insisted that the settlement could not be reviewed upon the ground of a change in condition, because of a further agreement, signed by the parties on December 29, and stipulating that the employer and the insurance carrier were forever relieved and discharged from all claims and demands whatsoever by reason of the injury. Assuming that this further agreement was duly approved by the commission, it was subject, however, to the terms of section 45 of the act, in which it is provided that upon the application of any party at interest on the ground of a change of condition, the industrial commission may at any time review any award or settlement made between the parties and filed with the commission, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded and agreed upon. It will be observed that the commission has the same power to review a settlement on such application as it has to review an award, and the right of a party at interest to make the application is as clear in the one case as in the other. .

It is the general rule that a party may waive that which the law has provided in his favor, and, in the light of this general principle, it might seem that section 45 makes an unwarranted encroachment upon the liberty of contract, but in the absence of any attack upon its constitutionality, it is to be treated as valid. And this is not to intimate that the section is invalid. Where parties voluntarily become subject to the workmen’s compensation act, they enter an agreement which is, in a way, tripartite. The State becomes, as it were, a party thereto. The effect of it is that in the matter of compensation for injuries, falling within the terms of the act, the State,.through the industrial commission, shall have the right, for cause, of revising even an approved settlement. In this view it would appear that since the provisions of section 45 were assented to by the employer and the employee as they respectively elected to operate under the act, this section, so far from being a restraint of the liberty of contract, was itself the subject of contract. The effect of section 45 as thus established could be avoided only by the consent of all three of the parties to the agreement. Whether the industrial commission could make such release, it did not in this case even purport to release its power to revise the settlement. Nor does it appear that the employer and employee attempted to contract with reference to such matter.

We do not undertake to determine any question as to the constitutionality of the law, but make these observations only in support of the general proposition that the settlement agreement as approved by the commission was no bar to the application for further compensation on the ground of a change in condition.

A further reason why we conclude t]jat the commission’s ruling upon this point was right is that the agreement seems to have been a settlement only for the claimant’s original injury of “being burned on the back of his neck by steam and poisoned by ammonia gas,” without any intention or contemplation by the parties that it should include a future change in condition.

All that we have just said is on the supposition that the agreement for the release was duly approved by the industrial commission. Two agreements appear in the record, one dated December 20, 1921, and one dated December 29, 1921. The agreement prior in date is the one referred to in the first division of this opinion and contains no stipulation against a further claim. This was on one of the forms adopted by the industrial commission and appears in that part of the record which relates to the hearing on December 29, 1921, and is followed in the record by the commission’s order of approval. The other agreement in which the parties stipulated as to such release is found only in the transcript of the evidence introduced at the final hearing on October 26, 1923. Although the commission’s order referred to an agreement entered into on December 29, this could have been intended as the date of its submission. It is therefore not clear that the agreement for the release was ever approved by the commission. If it was not so approved it could not have had the force and effect contended for by the plaintiff in error irrespective of anything else we have said in this connection. In the absence of more certainty as to whether such agreement did have the approval of the commission, we would hardly in any view reverse the judgment merely because of such agreement. However, in our decision we have given the plaintiff in error the benefit of the assumption that the agreement was duly approved by the commission.

A further contention is that the application for a review of the settlement was not made in the required time. Section 25 of the act provides that the right to compensation shall be forever barred unless a claim be filed. with the industrial commission within one year after the accident, or within one year after death, if death results. The original application was made within time. Section 45, to which we have already referred, provides that an application for a review on the ground of a change in condition may be made at any time. Section 25 has no application where one of the parties, after award and settlement, is seeking a review under section 45.

The final question for determination is whether there was sufficient competent evidence to authorize the commission to find that the disease was one arising out of and in the course of the employment. Section 2 (d) provides that the term “injury” shall mean only injury by accident arising out of and in the course of the employment, and shall not include disease in any form except where it results naturally and unavoidably from the accident.

Having seen that the insurance carrier is concluded upon the question of whether the original injury arose out of and in the course of the employment, we have only to determine whether the disease from which the employee suffered resulted naturally and unavoidably from such injury. The claimant testified that the scald caused a blister which was burst by a fellow employee on the following day, and that it was irritated by his collar and made a sore. This was apparently some two or three weeks before his experience with the gas. Being asked on the trial whether he had “any boil there,” he answered, “I have had pimples, pip-jennies.” Q. “I am speaking about the time prior of this accident?” A. “To the best of my judgment I think I had a little pip-jenny on my neck at the time.” Q. “Did you ever have anybody to mash this boil?” A. “I never had anybody to mash it, but some fellow come up and said, 'Look on your neck, let me mash it/ and he took his fingers and mashed it together.” Q. “Was that before or after your neck got scalded?” A. “I can not swear it was before, but I can swear that there has been three more on my neck after I got scalded. I wouldn’t have noticed those if it had not been for Dr. Sage.” Q. “Was this before you got the gas in it, or did he mash it before you got the gas in it?” A. “Yes, sir, I believe it was. I can’t exactly tell, but I know that Red did mash a bump on my neck, just grabbed it and mashed it, just a little pin-jenny.” Claimant also testified, however, that the place that was blistered by the hot water “was getting well and the ammonia gas blew out and got in it;” that he didn’t pay much’ attention to it until that happened. His first notice that any other part of his person besides his neck was becoming involved was about the first of September, when he began to experience pains in his arm. After-wards he could not stand to be around gas or in a warm room, and at times he was weak and fainty. In January of the following year sores appeared upon other parts of his person similar to the one upon his neck, and the disease made rapid progression until July 4, when one of his arms was amputated, and it had shown but little, if any, tendency to subside at the time of the last hearing by the industrial commission. The commission was' authorized to find that the disease, whether previously existing, did not appear until after the exposure to the gas, but that it did appear and begin its inroads soon thereafter, notwithstanding considerably more than a year elapsed before it was identified. Dr. Cosby Swanson, a specialist in skin diseases, while not having seen the employee until November 8, 1922, more than four months after his arm had been amputated, testified that the employee, in his opinion, was suffering from blastomycosis, a disease which is caused by a vegetable germ or fungus. His evidence was to the effect that this disease is rare in this section of the country; that the average doctor in general practice “would go through a lifetime” and never see a case of it, and that it is observed infrequently even by specialists. To quote in part from his testimony: “It has only been the past few years noticed in this,section at all, but out in the southwest and western parts of the country it is more prevalent than in this section. All about the disease is not known, but we do know that such a disease exists, and exists in Georgia. I have seen several cases of it the past year. Now for the entrance of this organism, . . all you have got to have is a break in the skin or mucous membrane. It enters in through that channel, and it is spread over the entire "system of the circulation of the blood. . . And thus it may flow through the system for days or weeks,-we don’t know bow long. . .” The witness was asked: “Would you say that your diagnosis, made at the time it was,—is it possible for that condition to have existed for two or three years prior to that time ?” His answer was: “Yes, it is possible, for it is possible for it to have existed twenty yéars prior to that time.” It was Dr. Swanson’s opinion that if the employee “got a burn on his neck and the ammonia gas later irritated it, this would be a place open for infection, and that infection might enter and cause the loss of his arm,” and that “this blastomycosis could develop naturally from the entrance of the germ at this burned place on his neck,” or “might be due to the sore on his neck.” It is to be observed at this point that Dr. Swanson did not give an unequivocal opinion that the germ entered at any particular place on the employee’s person. Dr. Armstrong, another witness for the employee, was the physician and surgeon who amputated the arm. He had not determined what the trouble was at the time of the operation, but “went ahead” because “the man’s life was in danger.” The patient was afterwards sent by him to Dr. Swanson. On later being informed of Dr. Swanson’s opinion that the disease was blastomycosis, he made a further study of the case and of the medical authorities and arrived at the same conclusion.

Dr. Sage first saw the employee on January 27, 1922, about six months after his original injury and about five months before the amputation of his arm. He treated the employee for other diseases, but to no avail. On learning long subsequently of Dr. Swanson’s diagnosis he also “read of the thing” and agreed with Dr. Swanson’s opinion. The statements of both Dr. Armstrong and Dr. Sage were stronger than Dr. Swanson’s with respect to the site of the germ’s entry into the claimant’s person, the testimony of each of them being that it was the burned place on his neck. It appears that all three of the physicians had properly before them an ample history of the case in reaching their conclusions and in giving their testimony. It can not be said that the opinion stated by Doctors Armstrong and Sage, to the effect that the germ entered the burned or sore place on the employee’s neck, was to be disregarded merely because they had depended upon Dr. Swanson for the original diagnosis, since it is shown that they afterwards, by their own study and by the application of their general knowledge as medical men, verified Dr. Swanson’s conclusion. They were duly qualified as experts, and it was entirely proper to consider their testimony. For should the testimony of one or both of them to the effect that the loss of the employee’s arm was “due” to the trouble on his neck be absolutely discarded as being an improper attempt to decide the case or to usurp the function of the industrial commission in determining whether the disease resulted naturally and unavoidably from the accident. The ruling of the Supreme Court in Travelers Insurance Co. v. Thornton, 119 Ga. 455 (1) (46 S. E. 678), was in reference to the admissibility of testimony over objection, whereas the testimony here referred to was admitted without objection, and, in light of the other evidence of the witness or witnesses giving it, could have been considered as a mere expression of opinion on the question of fact as to the manner in which the disease was contracted. Each of the physicians testified that it was not probable that the germ should have entered through a “boil or pip-jenny,” because of the small opening, and that the entry was the more likely made through the larger surface of the burn or sore. Furthermore, the pimple must have healed, as it does not appear at any time to have caused any particular concern. All were agreed that the ammonia gas would not carry the germ, but that the employee’s experience with it could have lowered his resistance so that the organism (to quote Dr. Swanson) “would get in, grow, and develop.” “If he got a burn there, of course the resistance was lowered from the results of the burn, and these organisms could enter and develop faster there.” It appeared from the testimony of one of the physicians that the blastomycosis germ exists, more likely than elsewhere, about cattle, dead trees, and straw. There was no testimony that it was probably present at or about the employee’s place of work.

It is not clear in the record whether the physicians, in testifying as to the “burn,” referred merely to the scald, or to the injury as it existed following its contact with the gas, but, from the circumstances that the employee continued to work notwithstanding the scald and observed no failure in his health until after his exposure to the gas, and that his trend was downwards from a short time subsequently thereto, and that, with the exception of the scald and a possible pimple, he had been previously well and sound, and from the entire testimony of the physicians, the commission was amply authorized to find that the employee was suffering from blastomycosis caused by the entrance of the germ at the sore on his neck, and that the entry followed the employee’s exposure to the ammonia gas. Whether the legal result should have been different if it had been equally inferable that the germ was received into the employee’s system prior to the occasion when he was gassed, as when the blister from the scald was burst by a fellow employee, or through a boil or pip-jenny, which the employee, it seems, might have had after he was gassed, need not be decided, because the evidence could have been found to point more strongly to the other conclusion, as just stated. There is nothing, however, to show when, where, or under what circumstances the contact with the germ was had, except that the inference was authorized that it occurred shortly after such exposure to the gas. It is evident that Dr. Swanson, in testifying that it was possible for the germ to have been present in the employee’s system for twenty years, meant to express a mere possibility, and not a probability, and, besides, as we have seen, the testimony of the other physicians was to have been considered. Under these circumstances, was the commission warranted in finding as a matter of fact that the disease resulted naturally and unavoidably from the accident, without more definite evidence as to when, and with no evidence whatever as to where or under what circumstances the disease was contracted ?

The.language of our statute is similar to that in the New York statute as to when a disease may be considered an injury arising out of and in the course of the employment. If the compensation act of any other State has employed such language, it has not been called to our attention, and we have found no decision, even by the New York courts, wherein the meaning of such language has been declared. Many cases have been cited by both sides and all of them have been examined carefully. There are decisions which might be construed as holding that the contention of the employee in a ease of this sort would not be established in the absence of evidence to show when, where, or under what circumstances the germ made its entrance into his person. But, after mature deliberation, we are unwilling to apply such a rule in this case. The statute, in providing that the disease must have resulted naturally and unavoidably from the accident, does not, we take it, abolish the well established proximate-cause doctrine, but does define it, we think, so far as it relates to diseases, in compensation cases. The definition, however, does not appreciably change the general rule, and might have been inserted for the purpose of excluding diseases developing in the course of the employment but not caused by some antecedent injury. See 28 E. C. L. 794. The word “naturally,” as here employed, means according to the laws of nature or the usual course of things. It is unimportant that it is unusual for persons to be afflicted with the disease in question, provided it seized the particular person in the way usual to the disease. According to the evidence as to the character, habits, and effect of the blastomycosis germ, the employee’s contracting of the disease was in accordance with its nature, and it therefore resulted naturally from the accident. Did it also result “unavoidably ?” This word is to be given a reasonable interpretation, according to its general acceptation, having in mind the gen-' eral requirements of the law as to the care and diligence which a person ordinarily must exercise for his own safety and protection. It is not employed in an absolute sense, and does not imply that the disease must follow certainly. A thing is generally considered unavoidable when common prudence and foresight can not prevent it. The evidence showed that the employee consulted physicians promptly, and was constantly under treatment, and warranted the conclusion that he made every reasonable endeavor to maintain his health from the first appearance of illness.- Anyway, there would be no presumption of voluntary exposure or lack of care on the part of the employee. Woolworth v. Wood, 32 Ga. App. 575 (2). The evidence was easily sufficient to establish that he could not have avoided the disease by ordinary care. It is immaterial that neither the employer nor the employee could have known that the particular disease might result from such an accident, since, in the light of modern science and common experience, it could have been reasonably anticipated that a disease of some character would probably result therefrom. A disease results naturally and unavoidably from an injury, within the meaning of the statute, when it is contracted in a way that is natural to the disease, and when it could not have been avoided by the victim through the exercise ' of reasonable care and caution.

Although we were at first of a different opinion, we have finally concluded that there was evidence to authorize the industrial commission in making the award complained of, and that the superior court did not err in refusing the insurance carrier’s appeal. Sec, in this connection, Early v. Hampton, 15 Ga. App. 95 (2) (82 S. E. 669); Clements v. State, 141 Ga. 667 (1) (81 S. E. 1117) ; Bell v. State Life Ins. Co., 151 Ga. 57 (105 S. E. 846); Southern Ry. Co. v. Webb, 116 Ga. 152 (1) (42 S. E. 395, 59 L. R. A. 109); Bell v. State Life Ins. Co., 24 Ga. App. 497 (101 S. E. 541); 22 R. C. L. 150-1, §§ 33, 34; 8 Words- and Phrases, 7147; 4 Words and Phrases (2d Series), 1040; Allison v. City of Fredericksburg, 112 Va. 243 (71 S. E. 525), and especially the cases cited in the note, to that case in 48 L. R. A. (N. S.) 94-99; State v. James (Minn.), 144 N. W. 216; Cline v. Studebaker Corporation (Mich.), L. R. A. 1916C, 1139, 155 N. W. 519; Bayne v. Riverside Storage & Cartage Co. (Mich.), 148 N. W. 412; Canadian P. R. Co. v. Flore, 24 D. L. R. 710.

Among the authorities which have been relied on by able counsel for plaintiff in error for the proposition that the disease was not shown to have been one for which the employer or insurance carrier should be liable are the following: McCoy v. Michigan Screw Co. (Mich.), 147 N. W. 572; Voelz v. Industrial Commission (Wis.), 152 N. W. 830; Jefferson Printing Co. v. Industrial Commission (Ill.), 144 N. E. 356; Travelers Ins. Co. v. White (N. Y.), 191 App. Div. 6; Eldridge v. Endicott, 228 N. Y. 21 (126 N. E. 254, 20 A. L. R. 1); Powers v. Alpert, 223 N. Y. 97; Manley v. Artistic Metal & Roofing Co., 205 N. Y. Sup. 687; Bloch v. Contact Process Co., 207 N. Y. Sup. 376; Freeman Coal Mining Co. v. Industrial Commission (Ill.), 145 N. E. 615.

Whether it might not be possible to distinguish some, if not all, of these cases from the one at bar, our conclusion is, as stated, that the award in the instant case was authorized and that no error was committed.

Judgment affirmed.

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


author: Stephens, J. Jenkins, P.

text:
    15870.
    MOORE v. DeKALB SUPPLY COMPANY.
   Stephens, J.

1. Where it appears that the driver of an automobile is employed by the owner to operate it, the inference is authorized that the driver, when operating it along a highway, in the absence of the owner, is acting as the owner’s agent or servant. Gallagher v. Gunn, 16 Ga. App. 600 (85 S. E. 930). The driver being at the time in exclusive control of the automobile, it is apparently within the scope of his authority, as agent or servant of the owner, to eject from the automobile a trespasser or one not entitled to ride therein. This is true although the person is riding in the automobile by permission of the driver, where the driver, in granting such permission, acted beyond the scope of his authority. It follows, therefore, that where such person riding in the automobile is thrown therefrom and killed by the wilful and wanton act of the driver in operating the automobile, the owner is liable in damages. McIver v. Florida Central R. Co., 110 Ga. 223 (2) (36 S. E. 775, 65 L. R. A. 437) ; Higgins v. Southern Ry. Co., 98 Ga. 751 (25 S. E. 837) ; Smith v. S., F. & W. Ry. Co., 100 Ga. 96 (27 S. E. 725) ; Brunswick, & Western R. Co. v. Bostwick, 100 Ga. 96 (27 S. E. 725); S., F. & W. Ry. Co. v. Godkin, 104 Ga. 655 (30 S. E. 378, 69 Am. St. Rep. 187); Madden v. Mitchell Automobile Co., 21 Ga. App. 108 (94 S. E. 92). The cases of Murphey v. New South Brewery & Ice Co., 145 Ga. 561 (89 S. E. 704), Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888), Morris v. Fruit Co., 32 Ga. App. 788 (124 S. E. 807), are clearly distinguishable.

Decided September 14, 1925.

Action fox damages; fxom city couxt of Decatux—Judge Daley. June 17, 1924.

Certioraxi was gxanted by the Supreme Court.

2. Where the driver of an automobile truck, designated as a “hopper” truck, permits another to ride in the hopper, knowing that the person riding is in a dangerous situation, in which he is likely to fall from the truck, and the driver operates the truck over a rough, unpaved roadway, down hill, and over a gully in the roadway, at a rate of speed of twenty to twenty-five miles an hour, which, speed is of such a character under the circumstances as attracts the attention of a person observing the spee'ding truck, and, as a result of such operation of the truck, the person riding in the hopper is caused to sway to one side, and, when the truck has reached a point about two and a half blocks from where it started, the person riding therein falls from the truck and is killed, the inference is authorized that the driver’s act in so operating the truck was of such a reckless character under the circumstances as to be wilful and wanton, and that such act caused the person riding in the hopper to be thrown out and killed. Dennard v. State, 14 Ga. App. 485 (81 S. E. 378); Tift v. State, 17 Ga. App. 663 (88 S. E. 41). See, in this connection, Bazemore v. Stephenson, 24 Ga. App. 180 (100 S. E. 234).

3. Where, in such a case, the wife of the person killed sued the owner of the automobile for the homicide, the inference was authorized that the death was the result- of the wilful and wanton act of the defendant, through the defendant’s servant, the driver of the automobile, acting within the scope of his authority; and there being evidence as to the value of the life of the deceased, the award of a nonsuit was improper.

Judgment reversed..

Bell, J., concurs. Jenlcins, P. J., dissents.

Alston, Alston, Foster & Moise, T7. (?. Shearer, W. H. Sibley, for plaintiff.

J. E. Berman, Ralph G. Sims, for defendant.

Jenkins, P.

J., dissenting. “Every person shall be liable for torts committed by his wife, and for .torts committed by his child, or servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” Civil Code (1910), § 4413; Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. Rep. 250); Southern Ry. Co. v. James, 118 Ga. 340 (45 S. E. 303); Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 10 L. R. A. (N. S.) 1176); Toole Furniture Co. v. Ellis, 5 Ga. App. 271 (68 S. E. 55). Thus, it is the general rule that the master is liable for the acts of his servants, when done within the scope of their employment, whether the act is wilful or otherwise. Smith v. Holbrook, 99 Ga. 256 (25 S. E. 627); Exposition Cotton Mills v. Sanders, 143 Ga. 593, 595 (85 S. E. 747); Century Building Co. v. Lewkowitz, 1 Ga. App. 636, 639 (57 S. E. 1036); Lewis v. Amorous, 3 Ga. App. 50 (59 S. E. 338); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322); Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169, 171 (73 S. E. 30). While this code section has been applied in numerous railway cases (see Central of Ga. Ry. v. Brown, 113 Ga. 414, 38 S. E. 389, 84 Am. St. Rep. 250), it appears that the rule of liability on the part of railway companies is not wholly fixed and determined by the provision of law quoted, but is enlarged or modified by the provisions of section 2780 of the Civil Code (1910), which provides as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or ears, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” Accordingly, it was held in Smith v. Savannah, Florida & Western Ry. Co., 100 Ga. 96 (27 S. E. 725), cited in the majority opinion, that a railway company was liable for the act of one of its employees in wantonly pushing a trespasser from a train irrespective of “whether ejecting trespassers therefrom was or was not within the scope of this employee’s duties thereon.” In Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888), it was held that “Where the driver of an automobile truck which belonged to the defendant company, and which was used solely for the purpose of carrying ice, while driving the truck, apparently in the ordinary discharge of his duties, upon the request of a boy having in charge as nurse a child of tender years, permitted the nurse and the child in his charge to get upon the running-board of the truck, which was about twelve inches from the ground and about twelve inches broad, and ride thereon, such action upon the part of the driver in giving permission to the children to mount the running-board and in allowing them to ride was entirely without the scope of his duties as an employee of the owner of the truck. And where the child of tender years, in dismounting from the running-board, fell under the wheels of the truck while it was in motion, and was killed, the company was not liable in damages to the mother of the child, who brought suit against the company, alleging that the child contributed to her support and that she was dependent upon him; and the court did not err in granting a nonsuit at the conclusion of the plaintiff’s testimony.” See also Tate v. Atlantic Ice & Coal Co., 25 Ga. App. 797 (104 S. E. 913); Morris v. Fruit Company, 32 Ga. App. 788 (124 S. E. 807). Since in the instant ease the theory of liability is necessarily limited to the doctrine of respondeat superior, and since the act of the servant in permitting the plaintiff to ride on the truck was wholly beyond the scope of his authority, and appears to have been done entirely without the knowledge or consent of the master, it does not seem- to the writer that the master should be held liable for an act, whether wilful and wanton or not, for which he was in no wise responsible. It is true that if in inflicting the injury the servant was engaged in the duties of his employment, the fact that the injured party, was a trespasser would not absolve the master from liability, provided the conduct of the servant was wilful and wanton; but in a case where the determining question is whether the act was or was not in a legal sense the act of the master, it does not seem that the degree of another’s negligence has any bearing upon the question of the master’s liability. My colleagues apparently base their holding to some extent upon the ruling above quoted from the case of Smith v. Savannah, Florida & Western Railway Co., supra; but as has been already indicated, the provisions of section 2780 of the Civil Code (1910),‘referring to railway companies, does.not have application here; and besides, in that case the flagman in ejecting the trespasser from the train was certainly acting within the scope of the company’s business, while in the instant case it surely could not be contended that either the pleadings or the proof in any wise suggest that the driver of the truck, after inviting the deceased to ride, employed the alleged reckless and wanton manner of driving the car as a secret means of ejecting his guest from the truck, in pursuance of his duty to his master. In my opinion the action of the trial judge in granting the nonsuit was correct.


text:
    16015.
    Franklin Motor-Car Company v. Chambers.
   Stephens, J.

1. In a suit upon a promissory note given for the purchase-price of an automobile, a plea which alleges that the defendant, after having bought from the plaintiff an automobile and paid part of the purchase money therefor and given notes for the balance, returned the automobile to the plaintiff, and at the time stated to the plaintiff that he (the defendant) would not accept the automobile, and demanded of the plaintiff a return of the money .paid upon the purchase-price, and a cancellation of the defendant’s notes, and that the plaintiff accepted the automobile and “agreed to adjust the matter in a day or two,” and “has had possession of said car ever since said date,” sufficiently alleges a contract of rescission, in that it alleges a tender of the automobile to the plaintiff by the defendant upon condition that the sale be rescinded and the defendant’s money and notes be returned to him, and an acceptance of the automobile upon these conditions by the plaintiff. The ruling here made is distinguishable from that in the case of Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229 (122 S. E. 896), in which it was held that a plea which alleges that the purchaser redelivered to the seller the automobile purchased, after the seller had agreed that if the automobile did not run satisfactorily the seller would take it back and “make some satisfactory adjustment” with the purchaser, and that the automobile was in the possession of the seller, is, by reason of its being vague and uncertain and failing to show a meeting of the minds, insufficient to constitute an agreement to rescind.

2. Where, in support of such a plea of rescission, there is evidence to the effect that the automobile was returned by the defendant to the plaintiff’s place of business where the sale had been made, accompanied by the statement of the agent of the defendant who returned the automobile that the defendant did not want it, and where there is evidence to the effect that the individual who, as salesman for the plaintiff, sold the automobile to the defendant, afterwards came to the defendant and agreed to return to the defendant the unpaid notes and to refund to him the amount of money paid upon the purchase-price, and where there is evidence to the effect that the automobile remained in the .possession of the plaintiff and no demand was made upon the defendant for the payment of any of the unpaid notes until suit was filed thereon, more than nine months after the date of the agreement, and where, in the meantime, the notes had been maturing monthly and the last note had matured more • than four months prior to the filing of the suit, the inference is authorized that the defendant, in returning the automobile to the plaintiff, tendered a rescission of the contract of sale, and that the plaintiff accepted the automobile upon such condition. The evidence, therefore, sustained the defendant’s plea of rescission.

Decided September 14, 1925.

Complaint; from DeKalb superior court—Judge Hutcheson. September 29, 1924.

Application for certiorari was denied by the Supreme Court.

Smith, Hammond & Smith, for plaintiff.

McMreath & Scott, for defendant.

3. The general demurrer to the plea was properly overruled. The charge of the court was properly adjusted to the pleadings and the evidence, and fairly submitted the issues.

4. The verdict for the defendant against the plaintiff, for the amount which the defendant had paid upon the purchase-price of the automobile, was authorized by the evidence.

Judgment affirmed.

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


text:
    16125.
    NORMAN et al. v. RAY et al.

    1. A contract for the sale of timber, which provides for the sale of “all the timber” upon certain described land for “the sum of $2500,” hut which contains no warranty as to the amount of timber upon the land, and which further provides that, after the payment of $500 of this sum as a cash payment, the purchaser is to pay “the sum of $2.50 per thousand until the balance of $2000 is paid, to be paid as the lumber is stacked and cheeked,” unconditionally obligates the purchaser to pay the sum of $2500 for the timber, irrespective of the amount of timber upon the land. This is true notwithstanding a provision in the contract to the effect that if the purchaser should cut more than 900,000 feet of timber from the land, the excess should be paid for “at the rate of $2.50 per thousand as the lumber is stacked and checked.” llhe provision for the payment of the balance of $2000 as the lumber is stacked and checked merely fixes a convenient method for the payment of money which is otherwise due, and does not limit the purchaser’s obligation to pay for only so much of the lumber as is upon the land or as is stacked and checked.
    Decided September 14, 1925.

      Attachment; from Wilkes superior court—Judge Shurley. December 1, 1924.
    R. C. Norman and J. W. Butler sued J. S. Ray and H. J. Cofer for $1250, alleged to be the balance due t,o the plaintiffs by the defendants under a contract for the sale of timber. The material provisions of the contract sued upon are as follows: “The said parties of the first part [the plaintiffs] have this day sold and conveyed unto said second parties [the defendants] or their assigns all the timber on that tract of land [describing it]. It is agreed that said second parties are to pay said first parties the sum of $2500.00 for said timber, to be paid $500.00 cash this day, the receipt of which is hereby acknowledged, and the sum of $2.50 per thousand until the balance of $2000.00 is paid, to be paid as the lumber is stacked and checked. It is further agreed that if there is cut by said second parties more than 900,000 feet of the timber, they are to pay for the excess at the rate of $2.50 per thousand as the lumber is stacked and checked. Said second parties agree to begin sawing lumber at once and to complete the sawing of the same as soon as possible, but to have two years from this date in which to complete the sawing of the timber.” The plaintiffs alleged that the defendants, after having cut part of the timber and before the expiration of the two-year period allotted the defendants for performance of the contract, ceased to cut the timber, and thereby abandoned the contract, and that for this reason the entire purchase-money had become due. The defendants admitted the execution of the contract, but contended that, under the terms of the contract properly construed, there was a partial failure of consideration, in that the timber upon the tract of land was sold to them as containing 900,000 feet, when in fact it was much less, to wit, about 400,000 feet; that the defendants, for this reason, were indebted to the plaintiffs only for the timber actually cut, at the rate of $2.50 per thousand feet, and that the timber actually cut from the land by the defendants amounted only to 361,313 feet. The defendants denied that they had violated the contract, because the two-year period for its performance had not expired. The plaintiffs, after giving credit for certain payments, the amounts of which are undisputed, claimed a balance of $1250 due under the contract, while the defendants admitted a balance due of only $377.31 for the purchase of 361,313 feet actually cut. The case was submitted to the jury under an instruction from the court that the defendants were liable to the plaintiffs only for the amount of timber actually upon the land, at the rate of $2.50 per thousand. The jury found a verdict for the plaintiffs in the sum of $377.31 and interest, representing the value of the timber actually cut. The plaintiffs moved for a new trial, the motion was overruled, and the plaintiffs except.

      F. W. Gilbert, W. A. Slaton, for plaintiffs.

      Clement F. Sutton, for defendants.
   Stephens, J.

(After stating the foregoing facts.) The sole question for determination, as presented by the briefs of counsel, is the proper construction of the contract. The contract having provided for the sale of “all the timber” upon the land for “the sum of $2500.00 for said timber,” it would seem that unless there are other provisions in the contract to the contrary and demanding a different construction, the defendants are liable for the entire purchase price of $2500 irrespective of the amount of timber upon the land. The provision in the contract, that “the sum of $2.50 per thousand” is to be paid “until the balance of $2000.00 is paid, to be paid as the lumber is stacked and checked,” can not be construed as modifying the unequivocal provision above referred to which provides for the sale of “all the timber” for “the sum of $2500.00 for said timber,” and as therefore limiting the defendants’ liability to pay for only the timber actually upon the- land. The provision as to payments at the rate of $2.50 per thousand “as the lumber is stacked and checked” is not only not in conflict with the provision as to the sale of “all the timber” for “the sum of $2500.00 for said timber,” but expressly recognizes and reaffirms the defendants’ obligation to pay the entire stipulated purchase price of $2500, less the cash payment of $500.

Since the contract expressly provides for payment by the defendants for all timber which they may cut from the land in excess of 900,000 feet, it is clear that, although the contract contains no warranty as to the amount of timber on the land, it was, at the time of its execution, contemplated by the parties that the land contained at least 900,000 feet of timber, and that at least that amount of timber would be cut from the land and stacked and checked. The provision as to payment at the rate of $2.50 per thousand “until the balance of $2000.00 is paid, to be paid as the lumber is stacked and checked,” must, therefore, be construed with reference to the fact that the parties contemplated that 900,000 feet of timber would be cut from the land and stacked and checked. So construing this provision, it follows that the provision as to the payment of $3000 to be made at the rate of $3.50 per thousand as the lumber is stacked and checked, is to be construed as directory only and as a convenient method for the payment of the $2000, and not as a provision obligating the defendants to pay at the rate of $2.50 per thousand for only such lumber as is stacked and checked.

The contract, properly construed, unconditionally obligates the defendants to pay to the plaintiffs the sum of $2500 irrespective of the amount of timber upon the land, provided, however, that should the defendants cut from the land timber in excess of 900,000 feet, an additional sum shall be paid by them for such excess at the rate of $3.50 per thousand.

The trial court having instructed the jury that the defendants were liable to the plaintiffs only for the amount of timber actually upon the land, and it appearing that the actual amount of timber upon the land was considerably less than 900,000 feet, viz., about 400,000 feet, such instruction was error harmful to the plaintiffs, and necessarily affected the verdict rendered for the plaintiffs, which was only for the amount admitted by the defendants to be due for the timber actually cut from the land. It was, therefore, error to overrule the plaintiffs’ motion for a new trial.

Judgment reversed.

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


text:
    15835.
    Couch v. Thompson.
   Stephens, J.

1. In a suit by a purchaser of land against the seller for an apportionment of the purchase-money on account of .a deficiency in the acreage of land sold by the tract, where the land is described as so many acres, more or less, the alleged fraud being that the seller, with knowledge of the boundaries, pointed out too the purchaser a false boundary and thereby induced the purchaser to purchase the land under a false belief as to the number of acres in the tract, where it appears from the evidence that the purchaser, before purchasing the land, carefully examined the description of the land contained in the deed under which the seller held, and went over the land with the seller and tracked the boundaries as described in the deed and satisfied himself thereof, that the land as described in the deed under which the seller held could be determined from the description by reference to either the true or an alleged false boundary, that the true boundary as described in the deed was determined by the location of a certain fence, but that at the time of the purchase the true boundary was marked by an old fence row and the false boundary by a fence, it was a question for the jury to determine whether the purchaser had an equal opportunity with the seller to discover the alleged fraud on the part of the seller in misstating the boundary. The court, nowhere having given this principle in charge to the jury, erred in not charging the same as embodied in the written request to charge timely made, set out in ground 2 of the amendment to the motion for a new trial.

Decided September 16, 1925.

Complaint; from Hall superior court—Judge J. B. Jones. July 28, 1924.

B. D. Kenyon, A. G. Wheeler, for plaintiff in error.

2. Since it appears from uneontradicted evidence that the seller knew the true boundary, and that therefore any alleged false representation which he may have made as respects the boundary of the land sold was necessarily made with knowledge of its falsity, it was not error to refuse a written request to charge, set out in ground 1 of the amendment to the motion- for a new trial, to the effect that it must appear that the seller, in making the alleged false representation, acted with knowledge of its falsity.

3. Where, after discovering the fraud, the purchaser paid the purchase-money under an agreement with the seller that the seller would make good to him any damage resulting from the fraud, there was no waiver of the fraud. The court, therefore, did not err in failing to charge the jury that the purchaser, by having paid the purchase-money with knowledge of the fraud, waived the fraud. See, in this connection, L. R.. A. 1918A, 106 et seq., note.

4. The request to charge, set out in ground 6, paragraph 0, of the amendment to the motion for a new trial, being applicable to a breach of warranty, the court’s refusal so to charge in a suit in which recovery is based on the ground of fraud and not upon the ground of a breach of warranty was not error.

5. Since it appears from uncontradicted evidence that the purchaser was damaged to the extent of the alleged deficiency in the acreage, it was not error for the court to fail to instruct the jury that the purchaser must show damage.

5. It appearing from uncontradicted evidence that the sale was by the tract described as containing one hundred fifty acres, more or less, it was error for the court to instruct the jury that the seller sold to the purchaser one hundred fifty acres of land.

7. It is not necessary to pass upon any of the other alleged errors, as it is not likely, that they will occur upon another trial.

8. The court having erred in the charge as herein indicated, it was error to overrule the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    15873, 15874.
    Lovett v. Allen; and vice versa.

   Stephens, J.

1. Since a husband is liable for the funeral expenses of his wife, one who advances to him money to be used in payment of such expenses renders valuable service to the husband.

2. Where the person making such advancement is a brother of the dead wife, the advancement, if made voluntarily by him and without a request from the husband, is inferably a gift, and there does not arise as a matter of law any implied promise on the part of the husband to repay the money thus advanced. But where the advancement is made at the request of the husband, either express or implied, although there is no express promise to repay, an implied promise by the husband to repay is inferable. Civil Code (1910), § 5513.

3. In a suit against the husband by the brother of the deceased wife who made the advancement, to recover the money advanced, where there was evidence to the effect that, in response to a telegraphic message from the defendant in Portland, Oregon, to the plaintiff in Lovett, Florida, announcing the death of the defendant’s wife, who was the plaintiff’s sister, the plaintiff transmitted by telegraph the sum of $500 to the defendant, and in an accompanying telegraphic message instructed the defendant to ship the body of the deceased to Lovett, Florida, and that the defendant, out of the money thus advanced, paid the funeral expenses and the cost of the transportation of the body to Quitman, Georgia, an inference is not, as a matter of law, demanded that the defendant was liable for the advancement upon an implied promise to pay for beneficial services accepted by him from the plaintiff.

4. Evidence to the effect that the defendant stated to the plaintiff in the telegraphic message that the defendant was without funds to defray the funeral expenses of his wife authorizes, but does not as a matter of law demand, an inference that the defendant thereby requested of the plaintiff the advancement made, and that the plaintiff understood the defendant as making such request.

5. There being evidence to the effect that upon receipt by the plaintiff of the telegram from the defendant notifying the plaintiff of the death of the defendant’s wife, the plaintiff transmitted by telegraph the sum of $500 to the defendant, advising the defendant to ship the body either to Lovett, Florida, or to Quitman, Georgia, for burial, the inference is authorized, though not as a matter of law demanded, that under such circumstances the plaintiff voluntarily made the advancement for the funeral expenses, including the transportation charges for the shipment of the body to either of the points named, and that the transaction being between near relatives, the money was thus advanced as a gift from the plaintiff to the defendant, and the latter was not liable therefor upon an implied promise to repay.

6. The cost of transporting a dead body to a point for burial is part of the funeral expenses. Under the evidence it was a question of fact for determination by the jury as to whether the defendant husband impliedly promised to repay to the plaintiff the amount of the advancement used by him in defraying the transportation charges of the body of his deceased wife, or whether the plaintiff voluntarily advanced the money for such purpose and thereby intended it as a gift to the defendant.

Decided September 16, 1925.

Attachment; from city court of Quitman—Judge Baum. July 30, 1924.

The plaintiff testified: “I received a telegram from G. W. Allen . . stating that Mrs. Allen was dead and that he didn't have sufficient funds to comply with her wishes in preparing her body for burial. I replied to this telegram by telegraphing him $500 with which to defray the expenses. . . I sent the $500 to Mr. Allen in compliance with his telegram, and I expected him to repay me, and he did promise to repay me, when I was in Portland. . . I could not tell you now the wording of that telegram. I advised him that I was sending $500 and for him to send the body to Lovett, Florida, or to comply with her request to ship the body back here. . . I wired Mr. Allen to bring the body home.” The defendant testified: “I informed D. S. Lovett of her death by wiring him that Mamie' died this morning, stating the time. In response to that telegram I got a wire from him that there was money coming on forward, and to make arrangements to ship the body home. I got a wire for $500. . . I did not ask Mr. Lovett to send me any money, and I did not borrow any money from Mr. Lovett at any time. . . My wife’s body was sent to Lovett, Florida. I would have preferred to have buried my wife’s body, if it had been left to my choice, in Portland, Oregon, but I shipped the body to Lovett, Florida, because her brother asked that request when he wired the $500. . . I did not include in my telegram to Mr. Lovett a request of what disposition to make of the body. Mr. Lovett’s telegram to me stated that CI am wiring $500. Have body shipped home to Lovett, Florida.’ . . I did not ask her folks that I be permitted to bury the body in Portland, Oregon.”

7. The charge of the court that a husband is liable for the funeral expenses of his wife was adjusted to the issues raised by the pleadings and the evidence.

8. The sole issue being whether the defendant was under an implied obligation to repay the advancement made by the plaintiff, or any part thereof, the charge of the court to the effect that a husband’s liability for the funeral expenses of his wife is only for such expenses as are reasonable and in accordance with his financial circumstances was not adjusted to the pleadings and the evidence, and was therefore error.

9. It not appearing undisputed from the evidence and conclusive as a matter of law that the defendant had ever been under any obligation to repay the money advanced to him, a naked promise to pay the same afterwards made by him is not, as a matter of law, based upon any moral obligation. See, in this connection, Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Worth v. Daniel, 1 Ga. App. 15, 17 (57 S. E. 898); Civil Code (1910), § 4243. It was error, therefore, for the trial judge to instruct the jury that if such a promise was afterwards made by the defendant, a verdict should be found for the plaintiff. The making of such a promise, however, is a circumstance to be considered by the jury in connection with the entire evidence as tending to establish an intent upon the part of the defendant, at the time of the receipt of the advancement, to repay to the plaintiff the money advanced, or as tending to establish an admission of liability therefor.

10. That part of the charge of the court illustrating liability upon an implied contract by reference to the liability of an infant or an insane person was not adjusted to the pleadings and the evidence. Such charge may not be a ground for reversal, but should nevertheless be omitted upon another trial.

11. The verdict rendered for the plaintiff not being as a matter of law demanded, the judgment awarding a new trial to the defendant, being the 'first grant of a new trial, is affirmed.

12. The court having erred as indicated in paragraphs 8 and 9 of this syllabus, the judgment on the cross-bill is reversed.

Judgment affirmed on the main hill of exceptions; reversed on the cross-hill.

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

8am. T. Harrell, for plaintiff. Branch & Snow, for defendant.


text:
    16392.
    BROOKS v. KEY & TOWNSEND.
    The release of a debtor is a sufficient consideration for the check of a third person to the creditor for the amount of the debt. The evidence in the instant ease authorized the inference that the cheek sued on was supported by such consideration. The verdict in favor of the plaintiff was amply supported and the court did not err in overruling the motion for a new trial.
    Decided September 16, 1925.
    Complaint; from city court of Columbus—Judge Tigner. March 21, 1925.
    Z. A. Brooks agreed to let his nephew have the money with which to purchase the stock of goods and business of W. Gr. Martin, if Martin’s debts did not exceed a certain sum represented by Martin to be the aggregate of his obligations. The purchase and sale agreement being entered into accordingly, Brooks proceeded to give checks to Martin’s creditors for their respective claims. Whatever balance remained of the purchase price after the creditors were thus satisfied was to be paid directly to Martin. Before the transaction was closed it developed that Martin’s indebtedness was greatly in excess of the amount represented, and Brooks thereupon undertook to recall the various checks which he had issued. Two of the checks had been made and delivered to Key & Townsend, one for $199.01 and one for $90.55, covering respectively Martin’s account and a dishonored check upon which he was indebted to this firm. Key & Townsend subsequently brought suit upon these checks and Brooks, the drawer, defended upon the ground that they were without consideration. The trial resulted in a verdict and judgment in favor of the plaintiffs. The defendant made a motion for a new trial, containing the usual general grounds only, which the court overruled, and the defendant excepted.

      George 0. Palmer, Ed. Wohlwender, for plaintiff in error.

      Hatcher & Hatcher, contra.
   Bell, J.

(After stating the foregoing facts.) We think the evidence authorized the verdict. A. T. Fuller sworn in behalf of the plaintiffs testified that as a representative of the plaintiffs and in exchange for the larger check he “receipted the invoice that Mr. Martin owed for $199.01” and that he “asked Mr. Martin about getting Mr. Brooks to make this ninety dollar check good,” and one “that had been turned down by the bank,” and that Martin assented; that he, Fuller, then carried the dishonored check to the defendant, Brooks, and “Mr. Brooks took the check, looked at it and said ‘All right.’ He [Brooks] then wrote a check for ninety dollars and- something,” and handed it to the witness, who in turn delivered it to Key & Townsend. Mr. Key, one of the members of the firm of Key & Townsend, testified, “We received these checks and accepted them in full payment of W. G. Martin’s account. That was at the time of the receipt of these checks. When we got the checks we wrote off Mr. Martin’s account. . . The goods we sold and for which these checks represented payment were goods that Key & Townsend sold to Mr. W. G. Martin out there. The account was about two weeks old.” It appears, from the evidence, that after the purchase from Martin had failed of consummation in accordance with the terms originally agreed upon, there was a meeting of his creditors. Mr. Key was present at this meeting, but testified that he appeared not as a creditor, but only because he had been notified and requested by another creditor to attend. There was evidence to authorize the inference that he refused to participate in the meeting. T. L. Bowden, an attorney at law, at whose office the meeting was held, testified that “Mr. Key took the position at that meeting that his indebtedness had been settled by some checks.” The defendant testified, “I told him (Martin) to get up a list of his creditors and bring them down to the store, and we would pay them off right there. Mr. Fuller and Mr. Martin came down to my store. I don’t remember seeing the receipted invoices. He turned it over to Mr. Martin there in the shop, for I gave Mr. Martin the checks. I did not turn the check over to Mr. Fuller, that is the $191 check. I think Mr. Martin turned it over to him there in the place. . . I have not given checks to anyone except Martin. . . Fuller met Martin outside with this bad check, and came back in, and Martin said, ‘Give me a check for this too,’ and I gave him a cheek. Martin kept his bad check, and I never had it.” The defendant further testified, “I meant in giving the checks I wanted to be certain that they got the money. . . I made the checks payable to the creditors direct.”

The jury were amply authorized to find that it was the intention of the parties that the original debtor, Martin, should be released and discharged. The release of Martin was a sufficient consideration for the checks. The evidence sustained the verdict, and the court did not err in overruling defendant’s motion for a new trial. See, in this connection, Davis v. Tift, 70 Ga. 52; Russell v. Smith, 97 Ga. 287 (23 S. E. 5); Saul v. Southern Seating & Cabinet Co., 6 Ga. App. 843 (65 S. E. 1065); Carr v. Rountree, 9 Ga. App. 393 (71 S. E. 589); Harris v. Jones, 140 Ga. 768 (1) (79 S. E. 841).

Judgment affirmed.

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


text:
    16416.
    York v. Lowry, sheriff.
   Bell, J.

1. Where a plaintiff, after procuring a judgment in attachment, brought a petition for a rule against the sheriff, alleging that after seizing the property the sheriff delivered it back to the defendant “without requiring and taking bond with good security as under the law in such cases made and provided,” and where the sheriff filed an answer which was not traversed, the statements of fact in the answer were conclusive and evidence could not be considered to refute them. Read Phosphate Co. v. Weichselbaum Co., 1 Ga. App. 420 (2) (58 S. E. 122) ; Edwards v. Harris, 7 Ga. App. 207 (66 S. E. 622) ; Tumlin Co. v. Watson, 17 Ga. App. 462 (1) (87 S. E. 691).

2. Where the sheriff’s answer averred that he had not delivered the property back to the defendant as alleged in the rule, but had delivered it to a third person who had “interposed her claim on oath giving damage bond to the plaintiff and forthcoming bond to the sheriff” and that ' “sufficient bond and security was taken as required under law,” and these statements were untraversed, and where it did not appear that a valid claim by such third person could not have been filed, the allegations of the rule were conclusively met, irrespective of evidence which might have sustained it if the answer had been traversed. Civil Code (1910), §§ 5160, 5161, 5162; Wortsman v. Wade, 77 Ga. 651 (4 Am. St. Rep. 102); Peacock Hdwe. Co. v. Allen, 33 Ga. App. 654 (127 S. E. 780).

3. It was not essential to the validity of the claim affidavit that it should be accompanied by a jurat, with the name of the officer who administered the oath signed thereto,—“the material question being whether or not the oath was actually administered and taken; and in the absence of the officer’s certificate to this effect, aliunde testimony may be received to establish this material fact.” Beach v. Averett, 106 Ga. 73 (1) (31 S. E. 806) ; Miller v. Caraker, 9 Ga. App. 255 (2) (71 S. E. 9). This fact being shown in the instant case by the untraversed answer of the sheriff to the effect that the claim was - interposed “on oath” and such answer being conclusive upon the point, it matters not that the oral testimony may have shown that no such oath was administered or taken.

4. Where the attachment was for the purchase money of “one Superior Truck, license No. 81775, 1922,” and was levied upon “one Superior Truck, Motor No. 43019M, license 6492” and this levy was adopted and relied on by the plaintiff in his further proceedings in the attachment, including the declaration, and where the petition for the rule against the sheriff alleged that the “attachment was levied upon said Superior Motor Truck for which said attachment was sued out” and that the sheriff had illegally delivered to the defendant “the Superior Motor Truck levied upon,” because of which alleged illegal delivery the rule was sought, the plaintiff upon the trial of the rule could not complain that the sheriff had not levied upon the truck for the purchase money of which the attachment had issued, or that the claim which the sheriff had accepted, in which the truck was described as in the levy, was for a different truck from that against which the attachment had proceeded. The plaintiff was estopped from objecting that the description in the claim was materially different from that in the attachment, where in all proceedings after the issuance of the attachment, including the allegations of the declaration and of the petition for the rule, he treated the property as being of the description set out in the levy and this description was followed in the claim. New Zea land Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922). It thus results that thó court did not err in admitting the claim in evidence and that a discharge from the rule was not to be denied merely because the description in the claim was not the same as that in the attachment.

Decided September 16, 1925.

Money rule; from Fulton superior court—Judge Bell. March 13, 1935.

John F. Methvin, for plaintiff.

Napier, Wright & Wood, for defendant.

5. The court did not err in any ruling upon the trial nor in rendering final judgment in favor of the respondent.

Judgment affirmed.

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


text:
    15856.
    McCLURE REALTY & INVESTMENT COMPANY v. EUBANKS.
    Where a lease contract provides that the lessee “shall pay all bills for street or sidewalk improvements, repairs on said building, water, lights, . and all bills of whatsoever nature during the life of this lease, and 'that the [lessor] shall receive net . . the sum of seventy-five dollars per month in advance,” it does not unequivocally appear therefrom that the lessee contracts to become liable for all taxes chargeable against the rented premises during the term of the lease.
    Decided September 17, 1925.
    Complaint; from Fulton superior court—Judge Ellis. Juné 37, 1934.

      George Westmoreland, Weltner & Sims, for plaintiff in error.

      Little, Powell,. Smith & Goldstein, contra,
   Stephens, J.

The successors in title to a lessor brought suit, after the termination of the lease, against the lessee, to recover a certain sum which represented taxes accruing against the rented premises during the term of the lease, which taxes the plaintiffs had paid. The trial court construed the lease as, by its terms, unequivocally obligating the lessee to pay all taxes chargeable against the rented premises during the term of the lease, and directed a verdict for the plaintiffs.

The lease contains the following provision: “It is distinctly agreed and understood between the parties hereto that the said McClure Realty and Investment Company shall pay all bills for street or sidewalk improvements, repairs on said building, water, lights, and all bills of whatsoever nature during the life of this lease, and that the said Mrs. J. C. Fuller [the lessor] shall receive net to her the said sum of seventy-five dollars per month-in advance.” It does not unequivocally appear from the terms of the lease that, in computing such “net” rental, the amount due as taxes should be chargeable against the lessee. Since the lease expressly provides that charges for street or sidewalk improvements, which are made by governmental authority* are chargeable against the lessee, the lease is susceptible to the construction that other charges imposed by governmental authority, such as taxes, which are not referred to in the lease, are not, by the terms of the lease, made chargeable against the lessee. This is true although charges for street and sidewalk improvements are denominated in the lease as “bills,” and although it is provided in the lease that “all bills of whatsoever nature” are chargeable against the lessee. Taxes, not being usually characterized as debts, are not necessarily included in the term “bills.” See, in this connection, Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596 (53 S. E. 251). On the other hand, assessments for street and sidewalk improvements, being for special benefits accruing to particular property, may more appropriately be denominated as “bills.”

It not unequivocally appearing from the terms of the lease, unaided by extrinsic matter, that the lessee was liable for the taxes accruing against the rented premises, the trial court erred in construing the lease as being unambiguous and as, by its terms, obligating the lessee to pay the taxes. Since there was no extrinsic evidence in aid of such construction, the verdict directed by the court was unauthorized by the evidence.

The petition set out a cause of action and was not subject to the demurrers interposed.

Judgment reversed.

Jenlcins, P. and Bell, J., concur.


text:
    16055.
    Morris v. Melton.
   Stephens, J.

1. Where two persons enter into a contract for the purchase and sale of real estate, in which it is stipulated that the purchaser is to pay $500 as earnest money, and where it is subsequently agreed that the seller will accept in lieu of the earnest money the promissory note of the purchaser’s husband, provided it is indorsed by another person named, and the note is thereupon delivered to the seller, to be effective only when such indorsement is procured, and where the purchaser’s husband, acting as her agent, subsequently informs the seller that he is unable to procure such indorsement, and the seller thereupon announces and proclaims that he can not hold the property longer, but will sell it to some one else, and thereafter actually does so, refusing, nevertheless, to return the note to the maker, the procuring of such indorsement of the note is a condition to its effectiveness as an obligation, which the payee could waive; and if the same was waived by him, the purchaser’s failure to procure such indorsement was no breach of the contract of purchase and sale, since the purchaser had done all that the seller actually required.

Decided September 17, 1925.

Certiorari; from Fulton superior court—Judge Bell. October 16, 1924.

Mitchell & Mitchell, for plaintiff in error.

George & John L. Westmoreland, contra.

2. A subsequent suit upon the note, by the payee, would as to him conclusively show his acceptance of the note, notwithstanding the failure of the defendant to procure its indorsement by another as indicated; and the payee, having accepted the note, would not be justified in selling the property to another, and such sale by him would constitute a breach of the contract to sell the property to the wife of the maker of the note, and such breach of contract would constitute a failure of consideration of the note.

3. Where, to a suit upon such note by the payee thereof, the defendant pleaded the above-stated facts, the plea set forth a valid defense, and it was error to strike the plea, upon a motion in the nature of a general demurrer.

4. The judge of the municipal court erred ill striking the plea, and the superior court erred in overruling the certiorari excepting to that

judgment.

Judgment reversed.

Jenhvns, P. J., and Bell, J., concur.


author: Jenkins, P. J.

text:
    16121.
    BALDWIN v. BOAZ, administratrix.
    1. “Under the statute law of this State an administrator can not sell the personal property of his intestate (annual crops excepted) without first obtaining leave to sell from the ordinary, and the sale must be public after due advertisement. A sale without an order of the ordinary is void, and passes no title to the purchaser or his vendee.” Whitehurst v. Mason, 140 Ga. 148 (1) (78 S. E. 938).
    2! Notwithstanding this rule as to contracts of sale by administrators, when goods have been in fact delivered to and used by a vendee, while the. administrator can not recover their contract price under and by •virtue of the express contract of sale, he can recover their value as upon a quantum valebat or implied contract to pay tlieir market value at the time and place of such delivery and use. See Civil Code (1910), § 5513; A. £ B. By. Oo. v. Roberts, 123 Ga. 304 (51 S. E. 333) ; Gary v. Simpson, 15 Ga. App. 280 (7), 286 (82 S. E. 918) ; So. Mfg. Oo. v. Moss Mfg. Go., 13 Ga. App. 847 (2), 848 (81 S. E. 263).
    3. The petition by the plaintiff administratrix is ambiguous, in that it contains allegations appropriate to an action upon an express contract for the agreed purchase-price of personalty sold to the defendant, and an action upon an open account, an itemized statement of which is attached to the petition. The jury found for the plaintiff the full amount sued for. The trial judge instructed the jury that no recovery could be had upon the express contract, since it was made without legal authority. There is no contention that the pleadings would not justify a recovery as upon a quantum valebat or implied contract to pay for such personalty as was in fact delivered and used. Treating the recovery as based upon that theory, there was evidence, though controverted, as to an actual delivery and use of, the water-bottles included in the suit. But there was no evidence as to any actual possession and use of the truck or of the stationery. The values of these items are separable under the evidence. The recovery of $1,219.49 was thus authorized to the extent of the value of the bottles, amounting to $651.99, but was unauthorized to the extent of the values of the truck and stationery, amounting to $567.50.
    4. While the petition contains an averment that the defendant “converted” the property to his “own use,” it is followed by the words, “without paying to petitioner the value thereof,” and the manifest purpose of the petition as a whole is to set forth a transaction ex contractu for the value of the personalty in question, and not ex delicto for any unlawful conversion. Consequently, the case of Marietta Mining Go. v. Armstrong, 25 Ga. App. 23 (102 S. E. 451), and similar cases relied upon by the plaintiff in error as to the right to waive a tort and sue upon a contract, are not in point.
    5. If at the time the remittitur of this court is made the judgment of the lower court the plaintiff shall write off from the amount of her judgment the sum of $567.50, the recovery for the truck and stationery, the judgment refusing a new trial is affirmed, otherwise it is reversed.
    Decided September 30, 1925.
    Complaint; from Catoosa superior court—Judge Tarver. November 13, 1924.

      J. A. McFarland, Maddox, Maddox & Mitchell, for plaintiff in error.

      W. E. & Gordon Mann, contra.
   Jenkins, P. J.

The evidence fully authorized a finding that the bottles sued for went into the actual possession of the defendant, and were retained and used by him. But as to the truck and stationery items, there appears to have been no proof either of use or of actual delivery. The only evidence of delivery of the truck is, that at the death of the plaintiff’s intestate the car was in a garage at Calhoun, Ga., and that it 'remained there, and that in a conversation ■ with the agent of the plaintiff administratrix, but before he had qualified as such, the defendant said, “When the weather is better, we’ll check this matter up; you leave the truck where it is until I call for it,” and that about three weeks or a month later the defendant repudiated this arrangement and refused to take the truck. On recall the agent testified that the defendant “bought the truck, . . and he told me to leave it where it was until later, and he would get it.” The defendant denied any such agreement. There was no other proof as to a delivery, and no proof of any use or benefit to the defendant, or even of any detriment to the plaintiff, from merely allowing -the truck to remain where it was when the intestate died.

We have considered the evidence with reference to the question as to whether the mere unauthorized constructive delivery such as is here contended to have been made would authorize the recovery for these items as on a quantum valebat or implied contract. Assuming that the evidence quoted above goes far enough to show an unauthorized constructive delivery as part of an intended complete transaction, and not, as some of the testimony tends to indicate, no delivery, or an incomplete delivery, under a mere executory arrangement to complete the transaction when “the weather is better,” we are of the opinion that such an unauthorized constructive delivery will not sustain the recovery, where the car and the stationery merely remained as they were when the intestate died, and the disputed unauthorized and merely constructive delivery was actually repudiated even before the administratrix took charge of the estate, and where the defendant never received any actual possession or any use or benefit, and it does not appear that the plaintiff suffered any injury or detriment. While the recovery for the item of bottles was authorized, the judgment as a whole, including items for the truck and stationery, will be affirmed only upon condition that the plaintiff write off from her recovery the latter items.

Judgment affirmed on condition.

Stephens and Bell, JJ., concur.