text:
    1017.
    CHARLES v. VALDOSTA FOUNDRY AND MACHINE COMPANY.
    1. The words “Valdosta Foundry and Machine Company” import a corporation, and are sufficient as against a special demurrer on the ground that there is no party plaintiff.
    2. An individual who is doing business in a trade name can, in such trade name, sue and be sued, especially where the suit relates to the business conducted in that name. If the name in which suit is brought is not in fact the plaintiff’s trade name, the question should be made by a plea of misnomer, and not by demurrer to the declaration.
    3. In a suit to recover personal property, a petition which sets forth the name of each article of property sued for, and the value of each article, is sufficiently definite as to the description of the property. These general terms of identification can be aided and rendered specific by parol testimony.

      4. A conditional bill of sale duly recorded is admissible in evidence without preliminary proof of execution. And where, in such a bill of sale, the property sold was specified as named articles of machinery bought from the vendor, this was sufficient to put all persons dealing with the vendee on notice of the vendor’s title.
    5. There is no reversible error in any of the assignments, and the undisputed evidence demanded the verdict as rendered.
    Trover, from city court of Sylvester — Judge Park. January 27, 1908.
    Submitted April 23,

    Decided September 28, 1908.
    The Valdosta Foundry and Machine Company brought an -action of trover against J. B. Charles. The petition contains the usual allegations as to title in the plaintiff, possession by the defendant, value, and demand and refusal, and gives the following description of the property: “One 6x13 Fay Company inside moulder, one dry kiln, one Goodie & Waters resaw, one Smith comb, rip and cut saw, one board conveyor, one haul up rig and cars, one sawdust rig and chain, one iron car, two 30 lb. frog and switches, one lath binder, one twin engine, one 2,000 lb. balance wheel, one 24x16 mandrel pulley, forty feet 2-3/16 shafting, five boxes, five coupling, sixty feet 2-7/16 shafting (Job 199), and one saw guide."
    The defendant filed a special demurrer, on the following grounds: (1) That it nowhere appears in the petition whether the Yaldosta Foundry and Machine Company is a partnership, a corporation, or the mere trade name of an individual. (2) That the description of the property sued for is insufficient to put the defendant on notice as to the particular property referred to. This ground of the demurrer goes to the description of each item of the property, it being insisted that the description as given is too indefinite to enable the defendant to intelligently prepare a defense. (3) That it nowhere appears in the petition what right the plaintiff has to any item of the property specified; the bare allegation of title to such property being insufficient. (4) That the petition does not set out the definite and specific value of each item of the property sued for; the statement of the aggregate value being insufficient. To meet the demurrer, the petition was amended as follows: (1) “by inserting after the words The petition of Yaldosta Foundry and Machine Company/ in the first portion óf the petition, and before the first paragraph of the same, the following words: The same being a trade name under which E. L. Thomas does business / so that that portion of the petition, when amended, shall read as follows: ‘The petition of the Yaldosta Foundry and Machine Company, the same being a trade name under which E. L. Thomas does business, respectfully shows/" etc.; (2) by giving the specific value of each item of the property; (3) by striking from the petition the aggregate value of $1,000, and, in lieu thereof, inserting, as the aggregate value, $2,450.50. The defendant ■objected to the foregoing amendment, on the grounds, that there was not enough to amend by, that it showed that the suit was null .and void for want of the proper party plaintiff, and that it sought to add a new party plaintiff. The amendment was allowed. After the petition had been thus amended, the defendant moved to dismiss it, “because said proceeding is absolutely null and: void for want of a proper party plaintiff. The Yaldosta Foundry and Machine Company, being neither a partnership nor' a corporation, but the mere trade name under which E. L. Thomas does business,” ■and, being neither a natural person, a corporation, nor a partnership, could not legally institute the action; and there being no party plaintiff, the suit is a mere nullity and can not be amended. The court overruled the motion to dismiss, and overruled a general •demurrer filed by the defendant. To each of the foregoing rulings ■exception was taken.
    The defendant filed a plea denying each paragraph of the plaintiff’s petition, and the case went to trial before a jury. After the evidence of the plaintiff was heard, the defendant introducing none, the court directed a verdict for the plaintiff, for $949.37. The defendant filed a motion for a new trial, embracing some of the grounds already covered by exceptions to the judgment overruling the demurrer, and, besides the general grounds, the following additional assignments of error: (1) that the court erred in directing a verdict for the plaintiff, as there was a conflict in,the evidence as to the value of each item of property in question;(2) that the identity of the property had not been conclusively proved; (3) that the title of the plaintiff to the property was not shown bjr the evidence; (4) that the court erred in admitting in evidence the conditional bill of sale, without first requiring proof of its execution; and because the description of the property contained in this instrument was not sufficient to show that it was the same property testified about and sued for, or to put the defendant on notice that the title to the property therein described was in the plaintiff. The court denied the motion for a new trial, and this judgment is assigned as error.

      C. E. Hay, Claude Payton, for plaintiff in error.

      J. B. Murrow, Perry & Williamson, contra.
   Hill, C. J.

(After stating the foregoing facts.)

The words “Yaldosta Foundry and Machine Company” import a corporation, and the court properly overruled the special demurrer based on the ground that there was no party plaintiff. Van Winkle Gin and Machine Works v. Mathews, 2 Ga. App. 249 (58 S. E. 396); Georgia Fire Asso. v. Borchardt, 123 Ga. 185 (51 S. E. 429); Holcomb v. Cable Co., 119 Ga. 466 (46 S. E. 671). Tlie amendment of the petition, therefore, setting out the real character of the plaintiff was unnecessary, unless it was denied that the plaintiff was a corporation and this denial was shown by proof. The amendment, however, was allowed the court; and the petition as amended showing that the plaintiff was in fact not a corporation, but was an assumed or trade name of an individual, the question made by the motion to dismiss the petition on the-ground that the suit was brought neither by a corporation, a partnership, nor a natural person, and that therefore there was no real party plaintiff, is necessary to be determined. The motion to dismiss, being in the nature of a general demurrer, admits the truth of the allegation that the Yaldosta Foundry and Machine Company was the trade name under which E. L. Thomas did business; so the question arises whether an individual can, in an assumed or trade name, bring a suit. It is well settled by frequent decisions-of the Supreme Court that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity either as a natural or as an artificial person; in other words, that in every suit brought in this State there must be a real plaintiff and a real defendant. Anderson v. Brumby, 115 Ga. 649 (42 S. E. 77); W. & A. Railroad Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). The underlying purpose in requiring that there shall, be real parties to all litigation is, that there shall be some one upon whom the judgment of the court shall be effective. It is entirely competent for 'a person to assume any business name which he desires, except as prohibited by statute (see Civil Code, §2636), and all contracts made by him in that name shall be binding, and if he brings suit in that name he will be afterwardsestopped from denying the binding effect of any judgment in such suit; and the person who thus sues in a trade or business name can not, in his real name, be afterwards heard to dispute any judgment rendered in the case -in which he was a party plaintiff under' the assumed or trade name. Clark v. Wyche, 126 Ga. 24 (54 S. E. 909). Mr. Justice Atkinson, in the case just cited, says: “So-it is not so much the name, but the identity of the person who-causes the name to be employed, that is the main question.” And further, “If Mrs. Wyche under the assumed name [George Foundry and Machine Works]' caused the foreclosure proceeding to be instituted in that name, the proceeding, so far as she is concerned, would not be wanting in respect to a real party plaintiff, and she would, after judgment, be estopped to raise the point that the suit was not brought in the name of a natural person, a partnership, or a corporation. She is capable of suing. By her true name or whatever name she adopts, the suit will be sufficient to bind her whenever it appears that it is instituted at her instance. It is not a question of fictitious parties. The parties are real, one acting under an assumed name, but nevertheless a real party.” The foreclosure proceeding alluded to by the learned Justice was instituted by Mrs. Wyche under the assumed name of George Foundry and Machine Works, which was admitted to have been the name under which she conducted business, the mortgage being made to her in that name. Under a plea of recoupment a ver-, diet was obtained against the plaintiff, in excess of the amount sued for, and Mrs. Wyche subsequently contested the validity of this verdict and of the judgment obtained thereon, on the ground that there was no legal entity as a party plaintiff in the foreclosure suit, and that she, as an individual, was not bound by the judgment in that suit. The Supreme Court held that she could not, after having instituted suit in her trade or business name, deny in her real name the validity of the judgment or its binding effect upon her. We think the principle announced in this case is-applicable to a suit by a party in a trade or business name; in other words, that if a judgment in such a suit would be binding upon the real party suing in such business or trade name, the suit itself, being one by an individual in his assumed or trade name, would meet the requirement of the law that there should be a real party plaintiff. Under the doctrine laid down in the Ciarle case, supra, a defendant sued by a plaintiff under an assumed or trade name, where a judgment is obtained against him, could not have such judgment set aside or arrested on the ground that there was no real party plaintiff. Of course, the defendant is entitled to be sued by a real party plaintiff; and if he desires to contest the fact that he is so sued, he can do so by a plea in abatement, and set up a misnomer in the name of the party plaintiff. But if he admits, as he does by general demurrer or by motion to dismiss, that he is in fact sued by a real party plaintiff, although in such suit the trade or business name is used, we can see no reason in law or logic why such suit would not be a valid one against him, or whj he would not be fully protected and the purpose of the law in requiring real parties substantially complied with. We therefore conclude that either a natural or artificial person who is transacting business under an assumed or trade name can, in such name, maintain or defend a suit. This is clearly indicated by the decision in the Clark case, supra, and we think is implied by the Supreme Court in the case of Whitt v. Blount, 124 Ga. 671 (53 S. E. 205). It is a well known fact that many firms retain their original name many years after the original partners composing them have either retired or died, and that business is continued to be transacted in the name of such original firms; and we see no legal reason why individuals may not be allowed to adopt as their trade or business name any name they please, and by such name sue and be sued. The plaintiff in error relies upon the ease of W. & A. R. Co. v. Dalton Marble Works, supra. In that case the suit was brought by the “Dalton Marble Works,” and a motion was made to dismiss on the ground that there was no allegation that the Dalton Marble. Works was a corporation or partnership, and it was not the name of an individual. To meet this objection, an amendment was made, adding, after the words “Dalton Marble Works,” the words “H. P. Colvard, proprietor.” The court held' that it was not certain that the name “Dalton Marble AVorks” imported either a corporation or a partnership, and that the amendment negatived such a construction of the words, but, on the contrary, showed that the “Dalton Marble AArorks” was in fact neither a corporation, a partnership, nor an individual, but merely the name of Colvard’s property; that the words “II. P. Colvard, proprietor,” simply indicated that he was the owner of the “Dalton Marble Works;” and that the suit was therefore instituted in the name, not of a natural or artificial person, but of a piece of property, and that, therefore, there was no real party plaintiff. In the present case the amendment which was allowed alleged that the Valdosta Foundry and Machine Company was the trade name of E. L. Thomas, under which he' was in fact doing business. The words added by the amendment disclosed a real individual' caryjng on his business under a definite, fixed trade name, which was used by the leal individual in his suit. The two cases are therefore distinguished in the allegations made by the amendments respectively; and we think, as above indicated, that the ease sub judice falls more clearly within the reason of the rule as laid down by the Supreme Court in the Ciarle case, supra.

The description of the property sued for, set out in the petition as amended, is sufficiently specific and definite. If this description leaves any doubt as to the identity of the property, the doubt can be easily solved by parol evidence. In pleading, very meager terms of identity may be sufficient, parol evidence being admissible, under such general words of description, to identify the. property. In mortgages or conditional sales of property “the courts lay hold of slight circumstances to supplement the descriptive words.” The words of description contained in this petition are more definite and specific than similar descriptive words approved by the Supreme Court as sufficient in the case of Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333).

The ground of special demurrer, that the petition did not give the value of each article sued for, that it was not sufficient, on the question of value, to state only the aggregate value of the articles, is sufficiently met by the amendment, which was properly allowed. This amendment sets forth, opposite the name of' each one of the .articles sued for, its value, and then the aggregate value of the articles.

The grounds of the motion for a new trial are without merit. There was no conflict in the evidence as to the identity of the property sued for, or the fact that it belonged to the plaintiff, and that it was in the possession of the defendant when demand was made and when suit was filed. Only two witnesses testified on the question of value, and the verdict, as directed by the court, was for a less sum than the amount testified to by either witness. The property sued for was the same property which had been sold by the plaintiff, as set out and described in the conditional bill of sale, and the title of the plaintiff to the property in question was retained until paid for by this written instrument, which was duly executed and recorded. Besides this documentary evidence of title, the plaintiff swore positively that the property belonged to him; and there was no denial of this fact by the defendant. On the general grounds, therefore, the verdict was the only one that could have-been rendered, under the undisputed evidence and all reasonable inferences fairly deducible therefrom.

There was no error in admitting in evidence the conditional bill of sale covering the articles sued for, without preliminary proof of its execution. It was not objected to as improperly admitted to record; and when such instruments are duly executed and recorded, they are admitted in evidence without formal proof of execution, as in the case of mortgages. Anderson v. Leverette, 116 Ga. 732 (42 S. E. 1026).

We find no merit in any of the assignments of error, and the. judgment is therefore Affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    1035.
    TAYLOR, alias SAXTON, v. THE STATE.
    The evidence authorized the verdict, and the judgment overruling the motion for new trial is not, for any reason assigned, erroneous.
    Larceny, from city court of Macon- — -Judge Hodges. February 15, 1908.
    Argued March 31,
    Decided September 28, 1908.

      Glawson & Fowler, for plaintiff in error.

      William Brunson, solicitor-general, Roland Ellis, contra.
   Russell, J.

The defendant in the court below was convicted' of the offense of simple larceny. The evidence showed that upon the pretended plea that he needed some money to change a $100 bill, he procured $57 from the prosecutor. There was no intention on the part of the prosecutor to convey the title of the $57 to the defendant, but the defendant merely asked the use of the prosecutor’s money for the purpose of carrying it to another and putting it with other money, so as to make change for a $100 bill. It is plain, from the evidence, that the money was taken by the defendant with no intention of returning it to the prosecutor, but with, the intent to steal. The prosecutor (who seems to have been a. well-meaning, ignorant, country darkey, who had just sold a bale of cotton) was left standing on the street corner to await the return of the defendant. The defendant, however, did not return. in a reasonable time, if ever. Even if we were to grant his contention that he did return, but'that the prosecutor had left, the intent to convert the money to his own use is fully apparent, from the testimony that he subsequently saw the prosecutor and had an opportunity of returning the money then, but, instead of doing so, he avoided the prosecutor and hastily removed out of his sight.

Judgment affirmed.


author: Powell, J. Russell, J.,

text:
    1036.
    JONES, alias SEALS, v. THE STATE.
    A defendant being separately tried can not successfully object to testimony offered against him, on the ground that it was obtained by an illegal search and seizure of another person, though that person be jointly indicted with him.
    Larceny, from city court of Macon — -Judge Hodges. February 15, 1908.
    Argued March 31,
    Decided September 28, 1908.

      Glawson & Fowler, for plaintiff in error.

      William Brunson, solicitor-general, Roland Ellis, contra.
   Powell, J.

This plaintiff in error was charged as an accomplice of one Taylor, as to whom a judgment of conviction has been this day affirmed. See Taylor v. State, ante, 740 (62 S. E. 482). As to the main points, this case is controlled by that decision. The record, however, presents one additional ground of error. A policeman testified to arresting both prisoners and finding through a search, a purse on each of them. The arrest was without warrant and seems to have been illegal. Counsel for defendant, in a single ground of his motion, complains of the admission of this testimony as a whole, on the ground that, through the alleged search and seizure of the two prisoners, the defendant was compelled to incriminate himself. Eeference is had to the opinions of this court in Hammock v. State, 1 Ga. App. 126 (58 S. E. 66); Hughes v. State, 2 Ga. App. 29 (58 S. E. 390).

So much of the testimony as related to the finding of the purse on the codefendant was certainly not subject to this objection by the prisoner in the present case. He could complain only as to evidence involuntarily disclosed by himself under the compulsion of the illegal search and seizure. An exception to the whole of a piece of testimony, where part of it is admissible, is, according to the familiar rule, to be overruled. Judgment affirmed.

Russell, J.,

dissenting. I am fixed in the opinion that there should be no relaxation of the rule announced by this court in Hammock v. State, and Hughes v. State, supra. Every consideration of sound public policy calls specially for the enforcement o£ this rule, where it appears that the arresting officer has been overzealous in the prosecution. In my opinion.the welí-recognized rule' that an objection is worthless which is directed as a whole to testimony, some of which is competent and some illegal, has no application under the peculiar facts of this case. If the testimony to which objection was made had been that the policeman took a. pocketbook of a certain description from the person of the defendant, and another pocketbook of a certain description from the person of another defendant, the rule would have applied, unless counsel had specified in his objection that he referred only to the testimony relating to the pocketbook taken from the defendant, and the. objection would properly have been overruled. But under the language used by the witness, the defendant was precluded from.separating the good from the bad. The witness’s language was, “L found two pocketbooks on them; one on each.” It was impossible to separate what was subject to objection from that which,, under the rule stated in the headnote> was not subject to the-specific objection urged. The conglomerate statement of the State’s, witness containing a poisonous element obnoxious to our constitution, which it was impossible to segregate, and the State having offered its testimony in the form it did, the defendant, in mj opinion, had the right to attack it as he did.


author: Powell, J.

text:
    1075.
    JOHNSON v. ROME RAILWAY AND LIGHT CO.
    The petition set out a cause of action, and the court erred in dismissing it on general demurrer.
    Action for damages, from city court of Eloyd county. February 27, 1908.
    Argued May 5,
    Decided September 28, 1908.
    This case arises upon the court’s sustaining a demurrer to the plaintiffs petition, which in substance alleged as follows: The defendant was engaged in transmitting electric light and power, and for that purpose had wires strung along the streets of the city of Borne. One of the wires thus used for the transmission of electricity was strung around the corner of Second avenue and Bast Fourteenth street, and had been covered with insulated wrappings. By the pressure of a limb of a tree, the insulation had been worn off for two or more weeks at the time of the injury mentioned in the petition. The wire had been caught under the' limb of this tree and was stretched downward thereby. The plaintiff, as a helper to one Ben Lumpkin, had been employed to trim the trees along this portion of the street, and, while trimming this particular tree, the limb against which the wire was pressed released the wire, and it flew up and struck the plaintiff on the hand.. The wire was heavily charged with electricity and the plaintiff, in addition to being shocked, was knocked out of the tree to tlm ground, a distance of thirty-five feet, and thereby sustained enumerated injuries. The plaintiff alleged his own ignorance of the condition and dangerous character of the wire. The following ordinance of the city of Borne was set forth in his petition: “All electric-light and power wires must be fastened to insulated tie wires; the use of uninsulated tie wires is prohibited;, all the wires must have an insulation equal to that of the conducting wire. Wires must be tightly stretched and never allowed to sag to such an extent as to be capable of coming in contact with each other, with signs, or neighboring objects.” Likewise an ordinance of said city was set forth as follows: “Be it ordained that it shall be unlawful for any person or persons to chop, skin, cut, mutilate any shade-tree on the sidewalks or streets in .the city of Borne, or to cut therefrom any limb, or drive any nails or spikes or other substance into said trees, or to attach, fix, or fasten any wire or cable, or anything else, to any tree, or in any manner interfere with the same; and any person violating this ordinance, upon conviction of the same, shall be fined not more than one hundred dollars, or sentenced to work on the streets of the city not longer than thirty days; provided, that any person desiring to cut or trim any shade-tree on the sidewalks or streets of the city may make application to the chairman of the street committee for a permit; and if the chairman of the street committee shall decide that it is necessary to trim or cut the trees or tree mentioned in said application, he may grant the same, stating in the permit how it shall be done, and that said work must be done under the supervision of the street overseer.” He further alleged, that in pursuance of this last-mentioned ordinance Ben Lumpkin, the man by whom he had been employed, had made application to trim this tree, and that the following permit had been granted: “Borne, Ga., Jan. 15, 1907. This permit authorizes Ben Lumpkin to perform, according to city ordinances, the following named work: cut limbs off of trees on Second avenue in front of Dr. Harbin’s and others. This permit is to be approved by chairman of street committee before work is done. At No. ........on............(street or avenue), the said number being the place of business or residence of....................... This permit must be delivered to the city sanitary inspector, who must be present when said work is done. J. B. Cantrell, City Clerk. Permission: F. J. Kane, Chairman St. Com.” The plaintiff further alleged that this permit was printed on a plumber’s permit blank, and, by reason of the form on which it was printed, the work was erroneously directed to be done under the supervision of the city sanitary inspector, instead of the street overseer. The defendant is charged with being negligent in allowing the wire to run against the tree, in allowing it to remain there, in allowing the insulation to be rubbed off, and in failing to inspect, discover, and remedy such condition; also it is charged that the wire was not tightly stretched, but sagged and hung against said tree, in violation of the ordinance mentioned above, and that it was negligent in permitting contact between, the live wire and the tree, in violation of said ordinance.

      Seaborn & Barry Wright, for plaintiff.

      Dean & Dean, for defendant.
   Powell, J.

(After stating the facts.)

If the defendant was rightfully in the tree, the petition sets forth a cause of action. Atlanta Consolidated Street Ry. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 498). Compare Augusta Railway Co. v. Andrews, 89 Ga. 653 (16 S. E. 203). The contention of the electric company is that the plaintiff was in the tree, attempting to trim it, without first comptying with the city ordinance, which he himself sets up in his petition. This tree was not the property of the electric company; therefore, the plaintiff was not a trespasser upon its premises; and those decisions which define the relative duties existing between landowners or similar proprietors and trespassers upon their premises are not immediately in point. On the other hand, if the plaintiff, at the time of the injury, was himself engaged in an unlawful act, and this was the proximate, contributing cause of his injury, he’ should not recover; provided the particular phase of his conduct in which the unlawfulness consisted was an act of which the defendant had 'a right to complain, either by reason of the fact that it breached some duty which the plaintiff as a fellow citizen owed to the defendant, or because the plaintiff placed himself within the range of the defendant’s dangerous instrumentality in a manner which the defendant could not reasonably have anticipated. See Platt v. So. Photo Material Co., ante, 164 (60 S. E. 1068). The mere fact that the defendant is doing some criminal act at the time he is injured will not necessarily, as a matter of law, prevent a recovery from a defendant by whose negligence he has been injured. This rule is well settled. But looking to the question as to whether the plaintiff was in the tree in violation of law, we can not say that he was. The ordinance of the city clearly contemplates that such persons as obtained permission from the chairman of the street committee might lawfully trim or cut shade trees in the city; and, of course, permission to a principal would be sufficient authority for all agents or helpers working under his supervision. It is true that the ordinance directs that the chairman of the street committee shall state, in the permit, how the work is to be done, and shall direct that it be done under the supervision of the street overseer; but we think that these provisions of the ordinance are merely directory, and that a person who has obtained the permission of the chairman of the street committee could not be convicted of a violation of the ordinance, even though that official omitted to state therein the details referred to. In the present instance the formal permit is written upon a plumber’s blank, and is signed by the city clerk; but, by his endorsement thereon, the chairman of the street committee has also expressed his permission. But even if under this permit the presence of the city sanitary inspector was necessary while the work was in progress, this requirement was in no wise for the benefit of the defendant, and his absence does not give it any better position in the case. See the Platt ease, supra, headnote 2 (c). If the plaintiff stood charged, with a violation of this ordinance, and the facts which appear in this record were before us, we would have to hold that he could not be convicted;, because of his substantial compliance with the-ordinance. His position is entirely different from that of the-plaintiff in the Chapman case, decided this day, for, according to the allegations there, the plaintiff came upon the premises of the-defendant and put himself within the range of a dangerous instrumentality, for the avowed purpose of committing a crime. In the present case the plaintiff, with every intention of obeying the law and after substantial compliance with its terms, went, not upon the premises of the defendant, but upon the premises of a. third person, the city, to do an act which was apparently legal,, and which, so far as the relations between the parties are concerned, was affected with no illegality. The court erred in sustaining the demurrer. Judgment reversed.


text:
    1078.
    DeLOACH & COMPANY v. ÆTNA INSURANCE CO.
    Where an insurance company issues a policy of fire insurance and by endorsement thereon permits other insurance in a specified amount, and afterwards itself issues another policy in favor of the same person on the same risk and grants permission for a different amount of' additional concurrent insurance, and each policy contains the usual provision in present general use against additional insurance, unless specially permitted, the insured can not, without avoiding the policies, procure a total insurance in excess of the largest amount permitted, under either of them. The permits are not cumulative.
    Action on insurance policy, from city court of Reidsville— Judge Morgan. December 5, 1907.
    Argued May 5,
    Decided September 28, 1908.

      W. T. Burkhalter, Hines & Jordan, for plaintiffs.

      King, Spalding & Little, W. G. Warnell, for defendant.
   Powell, J.

DeLoach & Company sued the AEtna Insurance-Company on two policies of fire insurance, one for $1,500, dated January 23, 1905, and thé other for $500, dated February 4, 1905.. The defendant filed an answer setting up; that in each of the policies sued upon, it was stipulated that “this entire policy, unless-otherwise provided by agreement endorsed hereon or added hereto; shall be void, if the insured now, has or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy;” that by the policy sued on, dated January 23, 1905, it is stipulated in writing that “permission is granted for $1,500 other insurance, war-' ranted concurrent herewith;” that on February 4, 1905, plaintiff took out a policy for $500 in the same company, and on February-24, 1905, a policy for $1,200 in the Insurance Company of North. America, thereby creating $1,700 additional insurance upon the.property so insured, being $200 in excess of the amount for which permission was given, whereby this policy was void. The defendant further pleaded, that by its policy of February 4, permission was given for $2,000 other insurance, warranted concurrent therewith, and that at the time this permission was given, plaintiffs, had in existence $1,500 other insurance, by the policy sued on dated January 23; that under the permission, therefore, for $2,000 other concurrent insurance, plaintiffs could take out only $500 in addition to these two policies; but they afterwards, without any further or other permission, took out the policy for $1,200 in the Insurance Company of North America, thereby causing to be written upon said property $2,700 of insurance other than said $1,500 allowed by the policy of February 4, being an excess of $700, whereby this policy of February 4 became void. On the trial of the case the facts set up in the defendant’s answer, as to' the insurance carried on the property, appeared from the plaintiffs’ evidence. According to his testimony, the value of his stock of goods was about $4,000. The court, on motion, awarded a nonsuit.

The plaintiffs contend that the two endorsements on the policies, taken in connection with the whole transaction, were adequate to authorize a total concurrent insurance of not less than $3,500, and that the aggregate of the policies procured was only $3,200. Let us see if this contention can be sustained. The meaning of the term “other insurance,” as it appears in the endorsement on the first policy, is easy of ascertainment. The insured was then carrying only the $1,500 provided for by that policy, and the other insurance permitted must have meant insurance in addition to that effected by the policy itself. Ga. Home Ins. Co. v. Campbell, 102 Ga. 107 (29 S. E. 108). The company thus formally evinced a willingness to carry the risk, provided the hazard was not increased by the insured’s obtaining more than $3,000 total insurance on the property. When a few days later the company itself wrote the second policy, by which it undertook to carry $500 of this $1,500 other insurance permitted by the first policy, it was necessary, in order that this policy should be formally complete, that something should be said as to the first policy; for it was one of the general provisions contained in each policy that “this entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance” covering the same property. It is true that the law would have estopped the company from insisting upon this provision, as against its own prior policy; but this did not relieve from the necessity or the prudence of an express statement of the waiver which the law would have raised by implication, so far as the formal perfection and completeness of the policy, as expressing the full and actual contract between the parties, is concerned. This being the situation, what was done? The insurance company, after attaching to the policy form a schedule showing an insurance thereunder of $500 on the stock of goods in question, added the words “permission granted for $2,000 other insurance warranted concurrent herewith.” Stress again falls upon the expression “other insurance.” Other than what? The natural, usual, and normal use of the word “other” is to indicate a differing form or an áddition to the thing or things immediately in contemplation. Again we quote the language of Justice Lumpkin in the Campbell case, supra: “The words ‘other insurance,’ as here used, must have meant insurance in addition to that effected by the policy itself, or which was allowable under its terms.” Neither under the policy itself nor by any of its terms except this very endorsement was any insurance other than this $500 effected or allowed. No other mention had been made of the prior policy. Construed by its own terms, no reasonable intendment can be given to the second policy as endorsed, other than that it was the intention of the parties to limit the total concurrent insurance to $2,500.

We are not willing to say, however, that in determining the meaning of this second policy, all sight is to be lost of the prior contract existing between the same parties as to the same subject matter. It may be that the terms of each would so influence the other that the insured might have taken a total insurance of $3,000, without rendering either policy void. As to this we do not say, for it is not before us. But we are willing to say that where there are two policies written by the same insurer in favor of the same person, on the same property, and they contain the provision in present general use against unpermitted additional insurance, the insured can not, without avoiding the policies, procure a total insurance in excess of the largest sum permitted under either of them. We concede that if an insurer employs in his contract ambiguous language, he is to suffer to the extent that as between two reasonable constructions, that is to be adopted which is most favorable to the insured. In our opinion the language here used is not capable of any reasonable construction other than the one here given. We do not think that either party to the contract thought that the company was expressing permission for the insured to procure $4,000 insurance — that is $2,000 in addition to both the policies — on a stock of goods worth, according to the plaintiff’s highest claim, only about that sum. There is nothing to indicate an intention that the permissions were to be cumulative.

Judgment affirmed.

Russell, J., dissents.


author: Hill, C. J.

text:
    1087.
    BRANNON & POTTS v. ATLANTA & WEST POINT RAILROAD COMPANY.
    The allegations of the petition, in connection with the provisions of the special contract made a part thereof, show a good cause of action, and the court erred in sustaining a general demurrer and dismissing the petition.
    Action for damages, from city court of Newnan — Judge Freeman. February 18, 1908.
    Argued May 6,
    Decided September 28, 1908.
    Brannon & Potts brought suit against the Atlanta & West Point Railroad Company to recover $202.50, the value of a mule, which they alleged was shipped, in company with twenty-one other mules and two horses, by them from Atlanta to Moreland, Georgia. It was alleged, that the stock, when delivered to the railroad company in Atlanta, was in good condition and order, and that the company agreed, in consideration of a freight rate, to safely transport and deliver all of said animals to the plaintiffs at Moreland, Georgia, the shipment of said stock being under a special contract, made by the plaintiffs with the defendant, and attached to the petition; and that the company violated its contract of shipment and was negligent in transporting and undertaking to deliver the animals to the plaintiffs at Moreland, Georgia, in the following particulars: “When the car containing said animals arrived at Moreland, Ga., defendant company had no proper or suitable place or means for unloading said animals from said car at said point, and undertook to unload said animals from said car onto the merchandise platform of its depot at said point; and while defendant company was thus unloading said animals, one of said mules fell on and from said platform, thus breaking one of its legs, and thus rendering said mule useless and worthless, and wholly destroying its value; that the company failed and neglected to safely deliver said mule to your petitioners at Moreland, Ga., and made no delivery of said mule to your petitioners at said place at all, and said mule was never received by your petitioners at said point, but was kept and retained by defendant company.” By an amendment it was alleged, that when the car in which the live stock was loaded arrived at Moreland, Ga., “the said platform was wet and slick, which was unknown to plaintiffs when said stock was shipped, and defendant was negligent in not placing sawdust, gravel, or some substance, on said platform, to prevent said stock from slipping or falling thereon. The said mule slipped and fell on account of said improper means afforded by defendant for unloading said stock, and the wet and slick condition of said platform.”
    The court sustained a general demurrer to the petition; and error is assigned on this judgment.

      W. C. Wright, for plaintiffs.

      Dorsey, Brewster, Howell & Heyman, H. A. Hall, Lamar Rucker, for defendant.
   Hill, C. J.

(After stating the foregoing facts.)

We think the allegations of the petition show a good cause of action against the carrier. A general allegation that the carrier had received the shipment in good order and did not transport it safely, but delivered it to the consignee in a damaged condition, would have been sufficient to put the carrier upon its defense, without any specific allegations of particular acts of negligence. L. & N. R. Co. v. Warfield, 129 Ga. 473 (59 S. E. 234). The plaintiffs, however, set forth, as a part of their petition, the special contract made with the shipper, under which the live stock was transported, and alleged that the carrier violated the terms of this contract in certain particulars; and it is insisted, in support of the demurrer filed by the defendant, that the allegations of negligence, taken in connection with the terms and conditions of this special contract, show that the carrier is not liable for the alleged damage to the mule. It is well settled that the carrier, by special contract made with the shipper, can limit or qualify the liability which the law imposes upon it; but this right does not go to the extent of exempting it from the result of its own negligence. Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750); Central Ry. Co. v. Hall, 124 Ga. 322 (52 S. E. 679, 110 Am. St. R. 170, 4 L. R. A. (N. S.) 898). And the contract in this case does not attempt to do so; for it expressly stipulates that the carrier is liable for loss or damage to said animals resulting from the negligence of its agents or servants. Under the law, it is the duty of a carrier of live stock to provide safe and proper facilities and a' safe and proper place for unloading the stock from its cars at the point of destination, and the carrier is liable for injuries sustained by the animals whije being unloaded, in consequence of insufficient facilities used or furnished by it for unloading stpck. 5 Am. & Eng. Enc. Law (2d ed.), 449. In East Tenn. Ry. Co. v. Herrman, 92 Ga. 384 (17 S. E. 344), the Supreme Court says, “Even if a defect in a platform from which a railroad company is loading a horse upon a car would, under any circumstances, excusé the company for injuring the horse by reason of such defect, 'it certainly would not do so in the absence of full diligence to discover the defect before exposing-the horse to the risk of injury” Now, the allegations of the petition on this point are that the defendant had no proper or suitable place or means for unloading animals from the car at Moreland, the point of destination, and undertook to unload the animals from the ear on the merchandise platform of its depot, and, while it was thus unloading the animals, one of the mules fell on and from the platform, breaking one of its legs and wholly destroying its value; and, by an amendment, it was alleged, that -the platform was wet and slick, which condition' was unknown to the plaintiffs when the stock was shipped, and that the defendant was negligent in not placing- sawdust or gravel, or some substance,, on the platform, to prevent the stock from slipping or falling thereon, and that the mule slipped and fell on account of the improper means afforded by the defendant for unloading stock, and the wet. and slick condition of the platform.

To meet these allegations of negligence; it is said that the contract in this case provides that the shipper shall unload the stock, and that if the carrier furnished any one to assist in so doing, he-should be deemed an employee of the shipper. We do not think, it makes any difference whether the shipper or the carrier was to unload the stock. In either event it was the duty of the railroad company to have a safe place at which to unload the stock, whether the unloading was done by the defendant or by the shipper, unless the unsafe condition of the place was known to the shipper and he nevertheless undertook to unload his stock at that place, taking the. risk of their being injured on account of its unsafe condition.. But the allegations of the petition on this point are, that the railroad company undertook-to unload the stock itself, entirely through its own agents, and while thus unloading them onto the merchandise platform of its depot, in its unsafe condition, which unsafe-condition was unknown to the plaintiffs, the mule in question fell and broke its leg. It is also insisted, in behalf of the defendant,, that under the contract its duty in reference to transporting and. delivering the stock ceased altogether after the stock had been delivered to the consignee. This would be true, but the allegation is that the mule in question was never delivered to the consignee-by the defendant, but on the contrary was kept and killed by the defendant on account of its worthless condition, caused by the injury received in unloading it from the car by the agents of the defendant. Notwithstanding the special contract limiting the liability of the carrier, where the stock was injured in the possession of the carrier, the law would raise a presumption of negligence,, which it would be incumbent upon the carrier to rebut by proof, showing the exercise of that degree of diligence required by the contract. Ga. So. & Fla. Ry. Co. v. Greer, 2 Ga. App. 516 (58 S. E. 782).

Assuming the truth of the allegations of the petition in this case in connection with the contract, which was made a part thereof,, we think liability would be the legal result, and that therefore the court erred in sustaining the general demurrer and dismissing the petition. Cooper v. Raleigh etc. Ry. Co., 110 Ga. 659 (36 S. E. 240). Judgment reversed.


text:
    1135.
    SOUTHLAND KNITTING MILLS v. TENNILLE YARN MILLS.
    1. While a defendant has the privilege of filing contradictory pleas, yet his defenses may be so related to one another that a finding in favor of one of them will estop him from further asserting the others.
    2. Where the verdict, though general in terms, appears with reasonable certainty, when construed in the light of the whole record, to be a finding in favor of a plea which is of such nature that a finding in favor of it precludes inquiry into the other defenses asserted, alleged errors in rulings upon testimony offered in support of the other pleas are immaterial; especially as against the complaint of the defendant.
    Complaint, from city court of Macon — Judge Hodges. March 21, 1908.
    Argued June 12,
    Decided September 28, 1908.
    The plaintiff sued for the purchase-price of yarns sold by it to the defendant; the defendant pleaded, (1) that the yarns were bought under an express warranty, and that the warranty had failed, because of certain defects, and prayed a recoupment of the resultant damages; (2) that the weights of the goods delivered were short, and asked a reduction from the face of plaintiff’s account therefor; (3) that subsequently to the arising of the differences set up in the foregoing two pleas, and while they were pending unsettled, the parties agreed upon a compromise, whereby the plaintiff contracted to deliver to the defendant, in consideration of the settlement of all differences, in addition to the 10,054 pounds of yarn then remaining undelivered under the contract, 9,820 pounds more, at the contract price, which was 3.31 cents less than the market price of yarns at that time; that the plaintiff had breached this contract by delivering only 10.487 pounds of the 19,487 pounds of yarn thus contracted -to be delivered, and that of this the defendant had to return to the plaintiff 1,553 pounds, because it was too defective to be used; and therefore, for the failure of the plaintiff to deliver the balance, amounting to 10,940 pounds, the defendant was damaged in the sum of $362.11, being tbe difference between ’ the contract price and the market price; and a set-off as to this sum is prayed. The court, in charging the jury, took up these pleas in inverse order, and, as to the third, — the one in which the contract of settlement is pleaded,— instructed the jury that if they found in favor of the defendant on this plea, they should deduct from the plaintiff’s recovery whatever sum the proof showed the defendant was damaged by the plaintiff’s failure to deliver the yarns in accordance with the contract of settlement; and that if they found for the defendant on this issue, they should not take into consideration the other pleas which the defendant had filed. The jury was also instructed as to how they should determine the issues raised by the other pleas, in the event they found against the defendant on the plea of settlement. Tlie jury returned a verdict in favor of the plaintiff, but made a deduction of $332.78 from the amount of the account. The defendant filed a motion for a new trial, in which, besides these general grounds, it complained of certain rulings excluding testimony as to the plea numbered 1 above; also of the charge of the court wherein the jury were instructed that if they found in favor of the defendant on the plea of settlement, they should not consider the other pleas.

      Erwin & Callaway, for plaintiff in error.

      Hardeman, Jones & Johnston, contra.
   Powell, J.

(After stating the facts as above.)

While, by the Civil Code, §5065, the defendant may file contradictory pleas, yet even contradictory pleas may be so related to one another that a finding in favor of one of them will make a consideration of the others unnecessary, and will render alleged errors affecting only the other pleas immaterial. Compare Realty Co. v. Ellis, ante, 402 (61 S. E. 833 (5)). If , the parties have settled their differences by a new contract, the defendant who has pleaded that settlement and has taken a set-off of damages as a benefit is certainly precluded by every consideration of law and of equity from asserting any claim to a further diminution of the plaintiff’s recovery because of the alleged damages which constituted the very consideration of the contract of settlement. Timmerman v. Stanley, 123 Ga. 850 (51 S. E. 760, 1 L. R. A. (N. S) 379); Parker v. Riley, 21 Ga. 427 (2). There was no error in charging the jury that if this plea was determined in the defendant’s favor, they should not consider the other pleas. If the deduction made by the verdict from the amount of the plaintiff’s account was based upon the plea of settlement, and not upon the other pleas, it follows that the alleged errors in the rejection of testimony offered in support of the. other pleas are immaterial and harmless; but the verdict being general in terms, it does not expressly appear upon what plea it is founded. We think, however, it can be asserted with reasonable certainty, in the light of the pleadings and the evidence, that it is a finding in favor of the plea of settlement. The amount deducted by it is $332.78. It is not a finding under the first plea, for the court excluded the testimony offered in support of that defense. It does not appear to be based on the second plea, for only two witnesses testified as to this; according to one of them the shortage amounted to enough to have required a deduction of more than $600, and according to the other there was no shortage at all. The sum allowed does not exactly correspond with the sum claimed in the third plea, nor with the proof submitted under it. Looking through the record for an explanation, we find that by multiplying 10,054 by 3.31 cents, the sum deducted by the jury, $332.78, results. Now in the plea of settlement the words “10,054 pounds” appear, and in the context are immediately preceded by the words “amount of yarn undelivered at that time;” and in the same plea the damage per pound for failure to deliver the yarn under the settlement is alleged at 3.31 cents. A fuller study of the context shows that the time referred to was the date of making the alleged contract of settlement and not the later date when the delivery should have been completed thereunder. It is plain that the jury intended to give damages upon this plea, but that they erroneously used the wrong multiplicand in making their calculation. Making the calculation for ourselves, we find that under the testimony of the defendant’s secretary and treasurer, who was its witness on this point, the undelivered balance of the 19,874 pounds of yarn was slightly less than 10,000 pounds, and that the verdict is therefore a few dollars more favorable to the defendant than the proof warranted. The error being in favor of 'the complaining party, the judgment will not be reversed.

Judgment affirmed.


text:
    1198.
    GEER v. THOMPSON.
    1. Under the general welfare clause of its charter, the city council of Colquitt had authority to pass an ordinance prohibiting the running at large of cattle within its incorporate limits, without regard to whether the County of Miller, in which the city is situated, had adopted the provisions of the stock law or not.
    2. An action in trover, brought to recover possession of cattle, can be successfully resisted by proof that the cattle were legally impounded, in accordance with a proper ordinance, by the marshal of an incorporated town or city. In such a case there is in fact a failure on the part of the plaintiff to make out his case, because the maintenance of an action in trover depends as much upon showing conversion on the part of the-defendant as upon proof of title in the plaintiff.
    3. Where the verdict of a jury upon the real issues between the parties is so explicit that it is impossible to mistake its meaning, any finding: upon matters not in issue, which may be incorporated in the verdict, may be rejected as surplusage.
    Trover, from city court of Miller comity — Judge Bush. February 25, 1908.
    Submitted July 14,
    Decided September 28, 1908.

      W. I. Geer, for plaintiff. Bush & Stapleton, for defendant.
   Russell, J.

Geer brought an action of trover against Thompson, for the recovery of four head of cattle. Thompson was marshal of the City of Colquitt, and in his answer claimed to be holding the cattle in question by virtue of an ordinance of said city,, forbidding the straying of cattle, bogs, and sheep on the streets-of the city. He claimed that be impounded the cattle in accordance with his duty, and that he did not return them to the plaintiff because he refused and still refuses to pay the impounding fee required by the ordinance. Upon. the trial of the case the jury returned the following verdict: “We, the jury, find in favor of the defendant, for $2.” The plaintiff moved for a new trial, which was denied, and he now excepts to the judgment refusing a new trial. The errors assigned upon the verdict are that it is contrary to the evidence and contrary to law, and, by an amended ground) objection is taken to the form of the verdict, and it is especially insisted that there was no evidence before the-court ánd jury upon which to base the verdict, and that it “is not supported by any evidence at all.”

Three,questions are raised by tbe record: (1) whether the city council of Colquitt had the authority to pass the ordinance in. question; (2) whether an action of trover for the recovery of cattle can be successfully resisted by proof that they were impounded according to law; and (3) whether the verdict as rendered is void.

The ordinance, which the plaintiff in his petition claimed the City of Colquitt had no right to pass, is as follows: “It shall be unlawful for any hogs, cattle, sheep, goats, horses, mules, or any other animals, excepting dogs and cats,’ found running at large; and before said animals are released from the pound the owner or owners thereof shall pay to the marshal fifty cents for each animal impounded, and ten cents for each day or fractional part thereof for which said animals shall remain in pound.” We think the City of Colquitt, under the general welfare clause of its charter, had the right to prevent, by such an ordinance as appears in the record, the running at large of such domestic animals as might tend to create a nuisance or otherwise inconvenience the inhabitants of the municipality. The public streets of a town are'not designed for pasturage purposes; nor does it matter that the provisions of the stock; law are not applicable tp the county in which the municipality is situated. The power of the incorporated town or city to control the territory within the limits of its incorporation is not affected by the fact that beyond its incorporate limits cattle are permitted to run at large. If a municipal corporation, in the exercise of its right to protect the health and comfort of its citizens, sees proper to pass an ordinance prohibiting the running at large of cattle or other live stock within its own incorporate limits, this right is of full effect within those limits, regardless of what may be the regulations upon the subject of live stock in other portions of the county beyond the incorporate limits. Even at common law, permitting cattle to run 'at large upon the streets of a city is a nuisance. Hellen v. Noe, 3 Ired. L. (N. C.) 493. Upon these same subjects see Crum v. Bray, 121 Ga. 710 (49 S. E. 686); Bearden v. Madison, 73 Ga. 184 (3); Mayor of Cartersville v. Lanham, 67 Ga. 753. In the latter case, Judge Crawford, speaking for the court, says: “The streets of an incorporated city or town are reserved and set apart for the public use. No individual can, therefore, appropriate them to his private use. If he has the right to turn six hogs into the public streets . . , he has the right to turn six hundred, for the legal principle is not governed by the number, but by the right. Individuals have no more legal right to claim pasturage of the public for their hogs than they have swill or corn. Many of the best and highest authorities on this subject go to the extent of holding that, where general police power is granted, or power to abate nuisances,, etc., is given, even they confer the right to pass and enforce such an ordinance.” Citing Dill. Mun. Corp. (3d ed.) §402; Third Municipality v. Blane, 1 La. Ann. 385; Roberts v. Ogle, 30 Ill. 459; Com. v. Bean, 14 Gray (Mass.), 52; Com. v. Curtis, 9 Allen (Mass.), 266; McKee v. McKee, 8 B. Mon. (Ky.) 433; City of Waco v. Powell, 32 Texas, 258.

Having determined that the city had the authority to pass, the ordinance which authorized the marshal to impound the cattle in question, we come next to consider the question whether the-fact that the marshal had legally impounded the cattle presented such a defense as could successfully resist the unquestioned proof that the plaintiff in trover had title to them. If the town had the right to pass the ordinance, the plaintiff failed to make a case, because it was settled as early as the case of Smith v. Kershaw, 1 Ga. 259, that “possession acquired fairly, under legal process, is not a wrongful conversion.” And the doctrine is reiterated in Chipstead v. Porter, 63 Ga. 220. The question recurs, then, whether the passage of the ordinance tended to deprive the plaintiff of his property without due process of law; and this has been settled in the Crum case, supra, in which Chief Justice Simmons, in behalf of the Supreme Court, approves and adopts the ruling of Mr. Justice Valentine in Gilchrist v. Schmidling, 12 Kan. 263.

It was unnecessary for the jury to have added to their verdict the words “for $2.” The amount of the impounding fee was not in issue. But the verdict was not affected by the fact that the jury passed upon the amount of the impounding fee when the right of the possession of the property was the real issue and the amount due for the impounding only an incident. We have already held, in Oliver v. Southern Ry. Co., 1 Ga. App. 734 (58 S. E. 244), that if more is found by the jury than is necessary, it: may be disregarded as surplusage, and that what is thus found does not vitiate the portion of the verdict which is necessary and well founded. To grant a new trial where the finding of the jury is clear upon the real issues upon which they are to pass, merely because the jury assumed to pass upon matters not in issue, would be to grant a new trial without sufficient cause. See Williams v. Brown, 57 Ga. 304; Worthan v. Brewster, 30 Ga. 115 (3).

Judgment affi/rmed.


text:
    1201.
    WIDINCAMP v. PHENIX INSURANCE COMPANY OF BROOKLYN.
    Where a policy of fire insurance provides that “this entire policy, unless-otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if any change, other than by the death of an insured,, take place in the interest, title, or possession of the subject of insurance,, except change of occupants without increase of hazard,” and subsequently to the issuance of the policy the insured, without the consent-of the insurance company, executed to a third person a bond for title-to the property, received a part of the purchase-price and delivered possession, a change of interest in the subject of the insurance was effected, and the policy became void.
    Action on policy, from city court of Reidsville — Judge Morgan.. March 3, 1908.
    Argued July 16,
    Decided September 28, 1908.
    Widineamp procured from the defendant insurance company a policy in the sum of $1,500, insuring his house, worth $3,000,. against loss by fire. The policy contained the following provisions, “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.” Widineamp made an executory sale of the property to one Smith and gave him a bond for title. Smith was in possession of the property at the time of the fire, and had paid a portion of the purchase-price; though the record does not disclose how much. In an action upon the policy, these facts appearing, the court, on demurrer, gave judgment in favor of the defendant.

      W. T. Burkhalter, for plaintiff.

      Slaton & Phillips, Warnell & Anderson, for defendant.
   Powell, J.

(After stating the foregoing facts.)

The effect of the insured’s giving a bond for title, accepting a portion of the purchase-price, and admitting the vendee into possession was that the insured retained the legal title to the property, and the vendee acquired an equitable estate. As to such a transaction, it is a settled rule of law that an equitable conversion takes place, and the property is treated, for most purposes, as if the legal title had passed; for example, the property descends to the vendee’s heirs as realty; while the vendor’s interest, that is, his right to have the purchase-money and to hold the legal title as security therefor, goes to the vendor’s personal representative. The vendee in equity is looked upon and treated as the owner of the land. Vancouver Bank v. Ins. Co., 153 Fed. 447; Pomeroy’s Eq. Juris. §368. Under such circumstances, both vendor and vendee have an insurable interest in the property. While the proposition is well established by authority, that, in the light of the rule which provides that the policy,will be strictly construed against the insurer to prevent a forfeiture, such a transaction would not violate a provision in a' policy contracting against a change of title only, the language here is broader, — -the “interest” of the insured must not change. The word “interest,” as applied to propert)", is broader than the word title. It is practically synonymous with the word “estate.” In Lowery v. Powell, 109 Ga. 194 (34 S. E. 297), quoting from Anderson’s Law Dictionary, Justice Little says, “An estate is defined to be the quantity of interest which a person has, . . from absolute ownership down to naked possession.” After a study of the authorities, we find no case holding that, under a policy in which the provision against alienation is as broad as the one.sub judice, the insurance is not voided by a sale of the property, accompanied by delivery of possession and the receipt of part of the purchase-price, although the insured retains the legal title. The following cases hold that in such a case the insurance becomes void. Ladd v. Ætna Ins. Co., 70 Hun, 490; Gibb v. Philadelphia Ins. Co., 59 Minn. 267 (50 Am. St. R. 405, 61 N. W. 137); Webb v. Webb, 92 Md. 101 (48 Atl. 95, 84 Am. St. R. 499). The principle is also recognized in the case of Arkansas Ins. Co. v. Wilson, 67 Ark. 553 (77 Am. St. R. 129, 48 L. R. A. 510, 55 S. W. 933). Cases apparently to the contrary easily distinguish themselves upon close examination, either through the fact that the provisions in the policy there uncl,er consideration are pot so. broad as the present one, or that the transactions in the particular instances did not progress far enough to place any of the insured’s former interest into the third person. An insurance company which is willing to write a policy of $1,500 on a house in which the insured has an interest to the extent of $3,000, that is to say, is willing to carry half the risk if the insured himself will carry the other half, .should not, if it writes such a policy and carefully provides against any change of that interest, be held to the contract if the insured, without its knowledge and consent, divests himself of all or any material part of that interest which it was contemplated he .should have and retain in the risk. The rule may work individual hardships, but there is nothing inherently wrong in it; and in most cases it is very useful to the protection of insurers, and indeed to the public safety itself. Judgment affirmed.


text:
    1254.
    Hunter v. The State.
    Indictment for carrying concealed weapon, from Habersham superior court- — -Judge Kimsey. May 18, 1908.

    Submitted June 14,
    Decided September 28, 1908.

      J. C. Edwards, for plaintiff in error.

      W. A. Charters, solicitor-general, contra.
   Powell, J.

1. While “the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired,” nevertheless the weight of the testimony as a whole is for the jury; and ordinarily they are not absolutely bound to accept positive in preference to negative testimony. Innis v. State, 42 Ga. 474.

2. When two persons llave equal facilities for seeing or hearing a thing, and one swears that it occurred and the other that it did not, the testimony of neither witness is negative, within the purview of the foregoing rule. Civil Code, §5165.

3. The foregoing principles are applicable to the trial of a criminal case for the carrying of concealed weapons, where the witnesses for the State testify that the defendant’s person was in their view, that she drew a pistol from under the cover of an apron she wore, and that it was hidden from view till she drew it, and the witnesses for the defendant testify that she had the pistol in her hand, by her side, open to view and not under the apron. - Judgment affirmed.


text:
    1255.
    PAYTON v. GULF LINE RAILWAY COMPANY.
    1. A railway company which lias sold a passenger a ticket for transportation on a certain train commits a breach of public duty toward him, as well as a violation of its contract, by causing the train to leave from the station yards without coming to the depot where it is accustomed to receive passengers into the train, and without giving the passenger a reasonable opportunity to get aboard.
    2. A petition in which it is uncertain, from the allegations made, whether ' it is brought ex contractu or ex delicto will, in the absence of a timely special demurrer pointing out the defect, be given, as to this matter, that construction most favorable to the upholding of the plaintiff's full ease as laid.
    Action for damages, from city court of Ashburn. June 16, 1908.
    Submitted July 15,
    Decided September 28, 1908.
    Payton sued the railway company, in substance alleging, that at Ashburn, Georgia, on a day named, he went to tbe depot of the defendant company, from which its passenger trains customarily left, and bought a ticket to Sylvester, Georgia; that this' was about twenty minutes before the time the train was scheduled to leave; that he waited about an hour and discovered that the-train had gone out on its trip, leaving from the yards instead of’ from the depot; that the quickest, nearest, and best way for him to get to Sylvester was to hire a horse and buggy, and drive-through from Ashburn to Sylvester, a distance of about twenty miles; he had to pay $5 for this transportation and lost a half day’s time, of the value of $20; the conductor of the train had been informed by the plaintiff that he expected to go on that train, and he caused the train to leave him purposely., The plaintiff asked for $200 damages, actual and punitive.
    The defendant demurred generally to the petition, on the ground that it set out no cause of action, and that the damages claimed were too remote and contingent. The court sustained the demurrer and dismissed the action.

      J. A. Comer, Claude Payton, for plaintiff.

      Perry & Williamson, for defendant.
   Powell, J.

(After stating the facts.)

The petition sets forth a good cause of action as to the actual damages sustained, whether it sounds in contract or in tort. A railroad company which has made a contract of transportation with a proposed passenger, and then, without notice, causes its train to leave without coming by the place at which it is accustomed to receive passengers, and without giving the proposed passenger a chance to get aboard, not only breaks its contract with him, but also violates a public duty toward him. Savannah R. Co. v. Bonaud, 58 Ga. 180; Durden v. So. Ry. Co., 2 Ga. App. 66 (58 S. E. 299); Perry v. Central Railroad, 66 Ga. 746 (1). The measure of damages in such cases is fully set forth in Central Railroad v. Combs, 70 Ga. 533 (48 Am. R. 582).

If the suit were construed to be an action ex contractu, punitive damages would not be recoverable, and all claim as to them should be stricken from the petition (Ford v. Fargason, 120 Ga. 708, 48 S. E. 180); but the fact that a petition prays for too much does not render it subject to general demurrer. Pierce v. Middle Ga. Land Co., 131 Ga. 99 (61 S. E. 1114); Kupferman v. McGehee, 63 Ga. 250. However, the allegations leaving it uncertain as to whether the suit is brought on the breach of the contract or for the special damages arising from the public wrong, and this formal defect not having been complained of by special demurrer, the petition will be given that construction most favorable to the assertion of a cause of action in plaintiffs favor, and will be held in the present ease to be an action ex delicto. Lytle v. So. Ry. Co., 3 Ga. App. 221 (59 S. E. 595), and cit.; Jenkins v. Seaboard Ry., 3 Ga. App. 381 (59 S. E. 1120); Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750). The court erred in sustaining the demurrer. Judgment reversed.


text:
    641, 642.
    CANDLER INVESTMENT COMPANY v. COX, and vice versa.

    1. The rule which requires a contract to be considered as a whole, and that. no portion shall be discarded, — that it shall be construed “ut res magis valeat quam pereat,” — wag properly applied by the trial judge in holding that the contract in this case required a continuous foundation wall.
    2. A contract which requires the building of a wall is breached by failure to build it, although a substitute more suitable for the purpose be provided, unless the stipulation requiring a wall has been waived; and any damage resulting from the breach of the contract which required a wall instead of piers, as well as the cost of the wall itself, would be recoverable.

      3. Under the terms of the contract in this ease, the proper measure of damage was applied. A having contracted to build a wall, as well as to insure the preservation of B’s building, B, upon proof of the breach of the contract, was entitled, by express terms of the contract, to recover the cost of the wall, as well as all damage which resulted to her building in the general construction of A’s building.
    4. The verdict was supported by the evidence, and there was no error in refusing a new trial. The terms of the contract itself preclude the consideration of the greater portion of the assignments of error urged by the defendant.
    Action on contract, from city court of Atlanta — Judge Reid. May 18, 1907.
    Argued November 27, 1907.
    Decided September 30, 1908.

      Candlers, Thomson & Hirsch, Rosser & Brandon, for Candler Investment Company.

      Slaton & Phillips, John L. Hopkins & Sons, contra.
   Russell, J.

After more than one examination and consideration of the numerous points raised by the brief and suggested by the record, though several times confused by the multiplicity of questions and the mass of the testimony, we are prepared to adhere to the conclusion we first reached when this case was argued. We have been deliberate because of our respect for the great ability of the counsel for the plaintiff in error, and the zeal and earnestness with which their positions were maintained. The more familiar, however, we have become with the record, the more we have become satisfied that no sufficient reason has been shown for reversing the judgment of the lower court in refusing a new trial. Stripping the case of those contentions which plainly could not have been material, and confining our view to those points where the difference between the parties is radical, the questions to be determined are extremely simple. In the first place, it becomes necessary to determine the nature of the action. It- is plainly a suit for the breach of a contract. The contract between the parties is set forth in full, and its breach is made the basis of the plaintiff’s petition. If the contract was broken in any respect, the plaintiff had a cause of action against the defendant company, and, under the terms of the contract, the measure of damages would be whatever amount it would cost the plaintiff to put her property, or at least the north wall of her building, in the same condition in which it was at the time the contract was entered into. This much being certain, it became, after the introduction of the contract, merely a matter of evidence for the jury as to whether the plaintiff’s wall and building were damaged, and, if so, to what extent; that is, what sum would be necessary to enable the plaintiff to do for herself what the defendant had contracted to do for her.

In our judgment the contract was properly construed by the judge of the city court of Atlanta. We do not think that the proper construction of the contract admits of any doubt, especially when the rule is applied which requires 'a contract to be construed the more strongly against him who proposes it. The contract was as follows: “Georgia, Fulton County. This agreement made and entered into this 19th day of March, 1901, between the Candler Investment Company, a corporation created by and existing under the laws of the State, of the one part, and Mrs. Kate Cox, of said count], of the other part, witnesseth: That party of the first part, being.the owner of the property known as old First Methodist Church lot, in the city of Atlanta, bounded on the north by Houston street, on the east by Pryor street, on the south by an alley and the property of said Mrs. Kate Cox, known as No. 113-15-1')' Peachtree street, and on the west by Peachtree street and desiring to make proper and needful excavations on its said property up to the dividing line between its said property and-the said adjoining property of said Mrs. Kate Cox, to the depth of about twenty-eight feet, for the purpose of constructing a seventeen-story fire-proof building, with basements, and having given party of the second part notice of its intention so to excavate for said purpose, has proposed to party of second part, as a measure of extraordinary care and precaution for sustaining her land, that if she would consent to first party excavating under her foundation and erecting a wall thereunder, it would do the same without cost to her, taking due care and precaution, in so doing, to protect her said premises, and, in the event of injury to her, to be responsible for all damage she may sustain by reason of said excavation or any work in connection therewith. That party of the second part accepts said proposition and agrees that party of the first part may, at its own expense and without cost to her, excavate under her north wall which adjoins the south property line of party of first part, for the purpose of erecting thereunder such foundation as may be necessary and proper to sustain her land and prevent said wall from falling, or any injury thereto which will damage said property of second party or cause any damage or injury to her tenants. And in the event any such damage or injury should accrue, party of the first part to be liable therefor, and to save party' of second part harmless from any loss of any character whatever that may arise from anything done by party of first part, its agents, employees, or contractors in connection with the aforesaid work, or the erection of said building in general.” (Signed by the parties.)

It is a well-settled and salutary rule of construction which requires not only that every contract shall be construed in pari materia, but that no portion shall be discarded if it can be avoided; ut res magis valeat quam pereat. In the first clause of the contract it will be observed that the Candler Investment Company proposed to put a wall under the wall already built by Mrs. Cox. In view of the well-settled opinion that a continuous wall is preferable, for the purpose of bearing a great strain, to disconnected piers (a view which seems to be overwhelmingly supported by testimony in the present ease), it is hardly to be supposed that Mrs. Cox, in accepting the proposition of the Candler Investment Company to put a sufficient wall under her building, would volunteer the less desirable and more unequal support furnished by piers. This, no doubt, would have been the common-sense view of the situation if the court had submitted the contract to the jury for construction; but applying the legal maxim of construction, to which we have just adverted, which requires that one part of a contract shall be illustrated by the other portion, to preserve the whole, we have no difficulty in reaching the conclusion that as a wall had been proposed in the first clause of the contract, it must naturally be supplied, as qualifying the word “foundation,” in the second clause of the contract. In fact, to make legal sense, the word “wall” must be implied to follow, in the contemplation of the parties, the word “foundation,” in the second clause of the contract, as fully as if it had been expressed. The wall proposed in the first clause of the contract was a foundation wall. It was to go down to whatever depth was necessary to support the Cox wall in an unchanged and uninjur.ed position. No matter how constructed, it was to begin at the point on the surface of the earth where excavation ceased, and extend upward under the Cox wall until it supported it. The wall spoken of in the first clause was a wall continuous, for foundation purposes. It was a foundation wall. The foundation in the second clause of the contract, unless a change had been more specifically made, could only refer to the foundation wall mentioned in the first clause.

The plaintiff in error having contracted to build a foundation wall, this contract was breached when piers were built, even if the piers were sufficient for the purpose of supporting the wall in question. Mrs. Cox, having contracted for a wall, is entitled to have a wall, unless she waived it, even though the piers were more suitable for the purpose. Of course, in that event, she could not recover damages, because it would be damnum absque injuria. If, however, the breach of the contract resulted in damages to the wall of Mrs. Cox’s building, which the defendant voluntarily contracted to insure against all damage, she would be entitled to recover those damages which resulted from any breach of the contract. The jury were authorized to find in favor of the plaintiff, either for damages due to excavating under Mrs. Cox’s wall, or for failing to properly support it, so as to leave her building in as good condition as it was in at the time the contract was entered into; because the plaintiff in error voluntarily assumed that liability as an insurer.

It is stressed by the plaintiff in error that the proper measure of damages was not applied, even if a verdict in favor of the plaintiff was authorized. It is insisted that the proper measure would be the difference between the market value of the property before the construction of the Candler building and since its construction, or, in other words, the difference between the market value of Mrs. Cox’s property before the changes in its condition were effected, and since. It is manifest that this would not be either a fair or a fixed measure, nor one readily ascertainable. This measure would depend upon the fluctuation of real estate values, which might be, and frequently would be, dependent on extraneous circumstances wholly disconnected from the injury. It is incompatible with the right arising from the breach of contract, because it would disregard, in every instance, the primal .right of property owners to possess their property in such condition as they might see fit. We think the true measure of damage is the difference in value between the wall of Mrs. Cox’s building-in its condition at the time of the making of the contract, for any purpose for which the wall was used or might be used and for which it might have a value, and its value for the same purpose after the changes wrought by the defendant company had been effected. In other words, to speak concretely, if, at the time the-contract was made, Mrs. Cox’s building stood on a firm foundation, not subject to sagging, settling, leaning, or other displacement (and Mr. Bruce, who supervised its construction, describes the original clay foundation as “elegant”), and was so constructed that she or any one who might purchase the building from her could safely and properly use the wall in the construction of a five or six-story building, and if, by the breach of the contract in which the Candler Investment Company guaranteed to prevent any injury, the wall was left in a condition where it had been loosened from the end walls of the building, and placed upon a foundation where it would have no value or would be unsafe as a portion of a wall for a five or six-story building, then the measure of Mrs. Cox’s damages would be whatever it would cost to build the wall which the plaintiff in error had originally contracted to build, and to replace upon this foundation a wall as suitable in every respect as Mrs. Cox’s wall originally was for all the purposes for which the original wall could have been used. Mr. Walker testified (and the jury had the right to base their verdict-upon his testimony) that it would require $4,025 to remove the piers and excavate the dirt between them, and to replace the wall in its original condition. The jury having found a verdict for only $3,500, the plaintiff in error can not complain that the verdict is without evidence to support it.

It is insisted by the plaintiff in error that the court, having sustained the demurrer, striking from the plaintiff’s petition all allegations of damages which were dependent upon the purposes for which Mrs. Cox intended to use the wall, erred thereafter in admitting evidence tehding to show the use to which the wall in question could be put; and the ruling of this court in Missouri Life Insurance Co. v. Lovelace, 1 Ga. App. 446 (58 S. E. 93), is cited to sustain the position that the ruling upon the demurrer, not being excepted to, became the law of the case upon that subject, and that the lower court could not thereafter reverse itself. 'We think it perfectly plain that the two rulings of the trial court are consistent with each other. It is a well settled principle, however, that the construction which a court places upon its own antecedent rulings is generally to be respected. But aside from this, we see a vast difference between purposes to which the plaintiff intended to put her building (and as regards to which any damages must necessarily be vague and speculative) and the purposes to which, as a matter o£ real value, a wall could he put, either by the owner or by any one else who might become possessed of the property. The intention to use the property for a specific purpose might or might not materialize, but the fact that the property could be used for a certain and specific purpose gave it a general market value. Counsel for the plaintiff in error, in their brief, say: “Supposing in this case the cost of building a wall is adopted and we pay the money, and Mrs. Cox never does build. Her rents and income are unchanged from the property, and she gets our money, and interest thereon in addition, and that, too, while the market value of her lot is undiminished. She profils by the transaction, whereas, she is only entitled to be compensated for actual loss.” The fallacy of this argument exists in the fact that under the stipulations of the contract, Mrs. Cox was insured against damages to her property, which must include actual physical damages, which might be independent of any profits arising from her investment.. Suppose, for instance, she had occupied the building as a dwelling, there would be no pecuniary profits to consider. But, as we view it, the question of profits does not enter into the question at all; because, if Mrs. Cox, instead of continuing to rent, as in the ease supposed by the plaintiff in error, preferred to convert the store into cash, then the question would arise which would determine the true measure of damages, to wit, would the probable purchaser pay as much for the wall in its condition after the breach of the contract as he would have paid had the contract been fulfilled according to its terms? The wall must be disconnected from every other concomitant circumstance of value; because the contract concerns it alone, .and because, regardless of the contract, Mrs. Cox would have been entitled to any appreciation in the value of her business location, or of the ground upon which the building was placed, due to a growth of the city or any other extrinsic circumstance. Under the evidence in this case, the jury were required to find that there had been a breach of the contract. They were authorized to find the amount which the plaintiff recovered.

The rulings of the trial judge upon the demurrers, and as to the admission of testimony, are free from any material error, and the law of the case was fully and fairly presented. There was, therefore, no error in refusing a new trial upon the motion of the plaintiff in error. The contract which the plaintiff in error had entered into was so broad and sweeping in its nature that the express terms.of the contract estopped it from asserting several of the propositions which it attempted to have presented to the jury, and by which ordinarily it might have protected itself from a recovery or diminished the amount. We will give one. example. In the sixth ground of the amendment to the motion for new trial, the plaintiff in error excepts to the refusal of the court to instruct the jury that Mrs. Cox could not, in this action, recover for damage caused by excavations on the land of the Candler Investment Company, and not on Mrs. Cox’s land. The’principle invoked by the written request is sound law, as a general rule, and, but for the terms of the contract in evidence, it would have been error to refuse the request presented; but in this case the plaintiff in error, by express contract, has obligated itself *(as will be seen from the contract) to vary the usual rule and “save party of second part harmless from any loss of any character whatever that may arise from anything done by party of first part, its agents, employees, or contractors in connection with the aforesaid work, or the erection of said building in general!’ In this state of the evidence we think the trial judge very properly refused the instruction -contained in the request, which, but for the stipulations of the undisputed contract, he would doubtless have given. By the terms of its contract, the plaintiff in error, waiving its rights as.a coterminous landowner, insured the defendant in error. It became an insurer against any injury to Mrs. Cox’s wall, and guaranteed to prevent any injury to her wall which would damage her property or injure and damage her tenants.

The affirmance of the judgment of the city court of Atlanta overruling the motion for new trial renders any consideration of the cross-bill unnecessary, and it is accordingly “dismissed.

Judgment, on the main bill of exceptions, affirmed; cross-bill dismissed.