text:
    16306.
    REED v. COLONIAL HILL CO.
    The notes sued on, and not the contract referred to in the notes, constituted the cause of action in this case; and section 5541 of the Civil Code of 1910 does not require that a copy of the contract be set out in the petition.
    Decided May 14, 1925.
    Certiorari; from Fulton superior court—Judge E.'D. Thomas. February 4, 1925.

      John A. Dunaway, Bryan & Middlebroolcs, for plaintiff in error.

      George B. Bush,- contra.
   Bloodworti-i, J.

Suit was brought in the municipal court of Atlanta on a number of promissory notes, the amounts of which, the time of signing, and the dates of maturity, were stated in the petition. A copy of one of the notes was attached to the petition, and it was alleged that “all of the remaining notes are similar to the copy of the note hereto attached, with the exception of the due date.”- The only reference to any contract other than the notes was in a clause in the attached copy of the note, as follows: “I have given 74 notes for the deferred payments for a certain lot of land as shown by the contract of sale of this date.” A demurrer alleged that the petition was defective and should be stricken because “the contract of sale referred to in the copy of the notes sued on is not set out in said petition nor attached thereto as an exhibit.” The demurrer was sustained and the petition dis- . missed. Certiorari was sustained by the superior court, and the defendant excepted.

In East Atlanta Land Co. v. Mower, 138 Ga. 380 (2) (75 S. E. 418), it is held: “Civil Code § 5541, as to setting out copies of contracts, obligations to pay, or other writings which constitute the cause of action, or the basis of the relief prayed for, applies only where the instrument sued on constitutes the cause of action, or the basis of the relief prayed.” As the notes sued on, and not the contract referred to therein, constituted the cause of action in this case, the section of the code referred to in the foregoing quotation, which is relied upon in support of the demurrer, does-not require that a copy of the contract be set out in the petition. The contract referred to in the notes does not constitute the cause of action. If there is anything in that contract of which defendant wished to take advantage, ire.should have done so by filing an appropriate plea. See, in this connection, Ittner Bros. v. Farmers State Bank, 15 Ga. App. 235 (82 S. E. 909). That the petition in this case is sufficient is shown by the ruling in the first headnote in Edwards v. Camp, 29 Ga. App. 556 (116 S. E. 210), which is as follows: “There is full compliance with the provisions of section '5541 of the Civil Code (1910), requiring that a copy of the contract sued on be attached to or embodied in the petition, where the petition sets forth, as to each of the notes sued on, the date, amount, maturity, rate of interest, and date from which it runs, and attaches a specimen copy, with the further- statement that each of the notes sued on is otherwise identical in form.”

The judge of the superior court properly sustained the certiorari.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


source: Caselaw Access Project

author: Beoyi.es, C. J.

license: Public Domain

text:
    16307.
    Tolbert Estate Incorporated v. Kellis et al.

    Decided May 14, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 4, 1925.

      C. N. Anderson, Hyman M. Morris, for plaintiff.

      George & John Ij. Westmoreland, G. G. Reynolds, for defendants.
   Beoyi.es, C. J.

Conceding (but not deciding) that the lease in question was properly admitted in evidence, the evidence, with all the legal deductions and inferences arising therefrom, did not absolutely demand the verdict directed by the trial judge in favor of the plaintiff. It follows that the judge of the superior court did not err in sustaining the defendant’s certiorari and in granting a new trial’, the petition for certiorari containing a proper assignment of error upon such direction of the verdict.

Judgment affirmed.

Buhe and Bloodworth, JJ., concur.


author: Luke, J.

text:
    16308.
    EBERHART v. SEABOARD AIR-LINE RAILWAY COMPANY.
    ' The proximate cause of the injury in question, as shown by the plaintiff’s petition properly construed, was not the alleged condition of the railroad-bridge over which she was being driven in an. automobile, but the negligence of the person operating the car, who was driving it at excessive speed, on a dark arid rainy night.
    The petition failed to set out a cause of action, and the court properly sustained the general demurrer thereto.
    Decided May 14, 1925.
    Adhered to on rehearing, July 16, 1925.
    Action for damages; from city court of Athens—Judge Brad-well. February 17, 1925.
    Application for certiorari was denied by the Supreme Court. Miss Nellie Eberhart sued the Seaboard Air-Line Bailway Company for damages because of personal injuries. The petition alleged: “Said defendant has a line of tracks running in Athens, in said county, westward toward Atlanta, Ga., and in said Clarke County, Georgia, runs under an overhead bridge on what is known as the Athens-Jefferson road.” “Said bridge is a wooden structure, about 80 feet long, being a portion of said public highway, which is paved with concrete on either side of said bridge.” “The said public road was in existence before the construction of said railroad, and said bridge was built by, and has been maintained since by said defendant, Seaboard Air-Line Bailway Company.” “On April 10, 1924, the said bridge consisted of uprights leading from the level of the railroad track, with stringers thereon, and a plank flooring on said stringers running for about 80 feet from edge of concrete to edge of concrete on said public highway. Said flooring was between 35 and 40 feet above the level of the railroad-track.” “At this bridge defendant runs through a cut, the bottom of which is about 25 feet across, with banks sloping back towards each end of said bridge.” “On each side of said bridge there was at said time a railing supported at intervals of 6 feet by upright posts extending 40" above the flooring. Said uprights were made of pine timbers, being 5" by 5". At the edge of the flooring said 5" by 5" were cut back half their width, and the lower part of said uprights nailed to the stringers of said bridge with three nails of twenty penny each.” “Along -said uprights, for the full length of the bridge, were nailed planks, being 2" by 6" and 12 feet long. The top plank was along the upper end of the upright 40" from the flooring, and the second plank was midway to said flooring.” “The only support and bracing which this railing had was an inside brace from the flooring to the upright. This brace was made of 4 by 4, and was cut away at each end so that the said brace was 16" long on the inside of said bridge, and 6" on the inside against said upright. This brace was nailed to the flooring on the inside by three 20-penny wire nails, and was nailed to the upright by three 20-penny wire nails. This brace extended out into the flooring proper of the bridge and in the roadway 12", and was nailed to the upright 9" above the level of the floor.” “These braces were nailed to each upright on each side of said bridge at intervals 6 feet apart.” “There was no support of any kind whatever to said railing from the outside of said bridge.” “There is a slight curve in said bridge, and in going from Athens to Jefferson, a direct line down the concrete roadway, and the middle of same for' a distance of a quarter of a mile would extend across said bridge about two thirds of its length, and still further extended would leave the bridge and strike the opposite edge of the cut going towards Jefferson, at about ten feet from the left-hand side of said bridge going out.” “At said point and about 10 feet from the edge of said bridge and on said defendant’s right of way and land, there were on said date two signs, one an advertisement of Exide Battery, and the other an advertisement of H. J. Reid Clothing Company.” “The Exide sign had been on said right of way at said point for more than four years before the date set out herein, and H. J. Reid Clothing Company sign had been at said point for more than six months before said accident, with knowledge and approval of defendant.” “Both of said signs were facing towards Jefferson. The Exide sign was about 4 feet by 12 feet, with the back of same looking towards Athens, covered with black paint, and the back of the Reid sign being blank tin.” “On a dark night with rain on said signs the back of same would catch the light from the headlights of automobiles going from Athens towards Jefferson, while approaching said bridge and for a distance of two thirds across said bridge, and would present the same appearance to the driver of said automobile as the concrete roadway would on such a night and under such conditions leading from the Jefferson end of said bridge.”
    ' “On the night of April 10, 1924, Dr. J. P. Proctor, a physician and surgeon of Athens, Ga., was proceeding from Athens towards Jefferson along the roadway as described herein, and reached said bridge between eleven and twelve o’clock p. m.” ■ “Dr. Proctor had with him, as passengers in said automobile, Miss Irene Day, and the plaintiff herein, Miss Nellie Eberhart.” “On reaching said bridge said automobile traveled across said bridge until the left-half hub of the front wheel, or the left-hand front fender on said automobile struck the lower plank of the railing of said bridge at a point 40 feet from the Athens end of the bridge. At the time of said impact said car was traveling between SO and 25 miles an hour. The impact caused the left rear of the automobile to swing towards the left side of the bridge, and the next brace towards Jefferson, as hereinbefore described, extending out in the roadway, caught the wheel of said automobile, slinging the weight of the car towards the left of said bridge going out and pushing over said railing away from said bridge and towards Atlanta. “The said automobile dragged along the edge of said bridge until just before reaching the Jefferson side of the cut under said bridge, and there struck about 3 feet below the edge of the embankment, and from that point was precipitated to the bottom of the cut and alongside of the railroad tracks, landing iir an upright position.” “On this fall of 35 or 40 feet plaintiff was thrown out of said car, with her right hand pinned under the wheel of said car, and remained there in an unconscious condition for five or six hours until rescued.” “On the night in question rain had begun to fall from Athens to said bridge and to beyond before 8 o’clock, and it was raining at the time the injuries complained of were received, and it continued to rain for hours thereafter, and during all the time plaintiff was pinned under said car.”
    By amendment the plaintiff alleged, that “on the night of the injury complained of, Miss Eberhart was accompanying Dr. Proctor in his automobile as a servant or employee. She was a trained nurse in the employ of Dr. Proctor, and was paid by the said Dr. Proctor a fixed monthly sum. She had no interest in the journey of her own, and was to receive no more or less money by reason of said journey.” “Dr. Proctor was on his way from Athens towards Jefferson to answer a call in his professional capacity as a doctor.” “At the time of the injury complained of the night was dark and a heavy rain was falling.” The allegation that the defendant wras negligent in not having on the side of the bridge a railing which could deflect the blow of a vehicle driven at a reasonable rate of speed'was amended by adding, “such a rate of speed as should have been anticipated by the defendant company to be used by autoist on a dark and rainy night when the reflection from tlie signs of the automobile light should produce the illusion to the autoist that no bridge existed, or that there was any curve in the road.” It was also alleged by amendment that “the driver of said automobile, Dr. Proctor, at the time of striking said bridge, thought that he was still upon the concrete highway, and did not know that he had reached the bridge by reason of the reflection of his lights upon the back of the signs as herein described, and because said bridge was not painted white, but had the dull color of weathered undressed lumber.”
    The petition and amendments thereto alleged that plaintiff was without fault in the premises, set out the injuries sustained and the resulting damage ;to her, and alleged that the injuries were caused bjr the negligence of the defendant in the following partió-, ulars: Defendant was negligent in building and maintaining its bridge without having a railing on the side of the same which could deflect the blow of an automobile or vehicle driven at a reasonable rate of speed; in not having said railing braced from the outside; in bracing said bridge from the inside; in allowing the braces on the inside to extend into the roadway; in allowing the erection and maintenance of said signs on its right of way and property in the line of the roadway and bridge extending thereto, in that defendant knew that on a rainy night the backs of said signs would glisten and reflect the lights of an approaching automobile so that said reflection would seem a continuation of the road to the driver of said automobile; and in not having said bridge painted white.
    The defendant demurred both -generally and specially to the petition and amendments thereto, the substance of the demurrers being that the petition showed on its face that the alleged negligence of the defendant was not the proximate nor direct cause of the injury, and “that.the act of the said J. P. Proctor, in the operation of said automobile, was the natural, direct, and proximate cause of said alleged injury;” that the said -Proctor’s driving upon said bridge “at a rate of speed in excess of six miles per hour” was negligence per se, and was the proximate cause of the alleged injury, and that the defendant exercised no control over Proctor in the driving of the automobile; that the dark night and the rain directly contributed to the alleged injury, and that the,,defendant had no control over the elements; that there was no-legal, duty on the-defendant .to construct a bridge with guardrails sufficiently strong to withstand the impact of an automobile going at the rate of 20 to 25 miles an hour.
    The trial court sustained the general demurrer to the petition as amended, and the plaintiff excepted.

      Lamar G. Rucker, Joel & Elliott, Gerdine Lumpkin, for plaintiff.

      John B. Gamble, Erwin, Erwin & Nix, for defendant.
   Luke, J.

(After stating the foregoing facts.) The controlling issue in this case is: What was the proximate cause of the alleged injury as shown by the amended petition? After a careful study of the record and of numerous decisions, we are convinced that the real, direct, proximate cause of the alleged injury was the operation of the automobile by Dr. Proctor, and that the court properly sustained the general demurrer to the petition. Assuming the allegations of the petition to be true, for the purpose of testing it as against a general demurrer, these alleged negligent acts of the defendant company were not the proximate cause of the alleged injury. While the mission upon which he was going may have, from a moral standpoint, justified Dr. Proctor in traveling at the rate of 20 to 25 miles an hour on a bridge, on a dark and rainy night, and the darkness and the rain may have caused him to misjudge the roadway, still these are circumstances over which the defendant company had no control, and the fact remains that if Dr. Proctor had driven at a proper rate of speed and properly steered the automobile in approaching and driving upon the bridge, he would have gone across in safety, regardless of the alleged defective guard-rails or the advertising signs, and the accident would have been avoided; and his failure to do so was the real, direct, and proximate cause of plaintiff’s injury. “The proximate cause of an- injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have happened. . . So long and so far as an ultimate result can be traced to a first cause, though through successive stages, the responsibility rests with the one who put in operation the chain of events which caused the wrong or injur}'. . . The proximate cause is the dominant cause, not the one which is incidental- to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. . . The proximate cause of an accident'is a cause without which the accident would not have occurred. . . The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation.” Words & Phrases, vol. 6, p. 5762. Questions of diligence and negligence being peculiarly for the jury, the court will decline to solve them on demurrer, “except in plain and indisputable cases;” but “where it clearly appears from the petition that the negligence charged against the defendant .was not the proximate and-effective cause of the injury, . . the court may upon general demurrer, as a matter of law, so determine.” Martin v. McAfee, 31 Ga. App. 695 (122 S. E. 72). “To entitle a party to recover damages of a railroad company on account of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for should it appear that the negligence of the railroad company would not have damaged the party complaining but for the interposition of a separate independent agency, over which the railroad company neither had or exercised control, then the party complaining can not recover.” Perry v. Central Railroad, 66 Ga. 746 (5). While the plaintiff, in the enumeration of the alleged negligent acts of the defendant company, made reference to “such a rate of speed as should have been anticipated by the defendant company,” yet the petition shows that “said car was traveling between 20 and 25 miles an hour” at the time of the impact. See Park’s Code Supp. (1922), .vol. 8, 828(dd); Ga. L. 1921, sec. 2, p. 256. There was no legal duty on the defendant company to construct the guard-rails of the bridge sufficiently strong to withstand the impact of an automobile going at the rate of twenty to twenty-five miles per hour. Corley v. Cobb County, 21 Ga. App. 219 (93 S. E. 1015).

. When the amended petition as a whole is construed most strongly against the plaintiff, it fails to show either that the alleged negligence of the defendant was the direct or proximate cause of the injuries sued for, or that it was a contributing factor thereto. On the contrary, the petition, properly construed, clearly shows (despite its allegations of the defendant’s contributory negligence) that the gross and criminal negligence of the driver of the automobile (in which the plaintiff was riding as a passenger and employee of the driver when she was injured) was the direct, proximate, and sole cause of the plaintiff’s injuries. The court, therefore, properly dismissed the petition on demurrer.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    16310, 16335.
    FELKER v. MONROE HOTEL COMPANY, and vice versa.

    The only condition precedent in the stock-subscription contract sued on is in the clause: “Ho subscription binding until $75,000 in solvent subscriptions have been made.” The additional clause, “The hotel to cost not less than $100,000,” is a subscription on special terms, or a condition subsequent.
    The verdict was amply authorized by the evidence, and none of the special grounds of the motion for a new trial requires a reversal of the judgment.
    Decided May 14, 1925.
    Complaint; from Clarke superior court—Judge Fortson. January 24, 1925.
    Application for certiorari was denied by the Supreme Court.

      Wolver M. Smith, John J. Strickland, for plaintiff in error.

      Orrin Roberts, Erwin, Erwin •<£ Nix, contra.
   Broyles, C. J.

J. II. Felker was. sued upon the following contract of subscription: -

“$5000.00. Monroe, Ga., -, 1920.

“In consideration of the promises of others for the purposes hereinafter shown, I hereby subscribe five thousand dollars for' 50 shares of stock in the company to be chartered “for the purpose of building, owning, and operating a modern hotel in Monroe, Ga., par value of the stock to be $100 per share. No subscription binding until $75,000 in solvent subscriptions have been made. The hotel to cost not less than $100,000.00. Terms: 10% cash when charter is applied for, 30% when contract is let, 30% 90 days after contract is let, balance 6 months after contract is let. All unpaid subscriptions to bear interest from maturity of installments at 8% per annum. [Signed] J. H. Felker (L. S.).” It appears that the following 'words in the contract, to wit, “the hotel to cost not less than $100,000.00,” were inserted by Felker himself before he signed the contract. Properly construed, this contract contains only one condition precedent, to wit: “No subscription binding until $75,000 in solvent subscriptions have been made.” The other clause (inserted by Felker) t'o'wit, “the hotel to cost not less than $100;000.00,” is clearly a subscription upon special terms, or a condition subsequent. See’, in this connection, Fletcher’s Cyc. of The Law of Private Corporations, vol. 2, p. 1263, par. 574, pp. 1265, 1266, and 1267; Johnson v. Georgia Midland &c. R. Co., 81 Ga. 725, 728 (8 S. E. 531), and cases cited. We think that the decision in the Johnson case is controlling in this case. If Felker (who is an able lawyer) had desired to make the cost of the hotel a condition precedent, he could easily have done so by writing into the contract, “or unless the hotel costs not less than $100,000.00.” Instead of doing so, he merely inserted: “the hotel to cost not less than $100,-000.00.” As the contract reads, with the insertion, the only condition precedent is that no subscription shall be binding until $75,-000 in solvent subscriptions has been made.

The defendant’s general demurrer to the petition was overruled, and to this judgment no exception was taken. Thereafter the plaintiff proved the case as laid, and, under all the facts of the case, none of the alleged errors upon the trial requires a reversal of the judgment overruling the defendant’s motion for a new trial.

As the above-stated rulings are controlling in the case, it is unnecessary to pass upon’ the questions raised by the cross-bill of exceptions.

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

I/ulce and Bloodworth, JJ., concur.


author: Broyi.es, C. J.

text:
    16311.
    Johns v. The State.
    Decided May 14, 1925.
    Rehearing denied June 9, 1925.
    Manslaughter; from Eulton superior court—Judge Howard. February 7, 1925.

      Smith <& Watson,' for plaintiff in error.

      John A. Boyl'in, solicitor-general, Ralph L. Pharr, contra.
   Broyi.es, C. J.

The verdict was amply authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Per Curiam.

text:
    16312.
    Alma State Bank v. Herrin et al.

    Decided May 14, 1925.
   Per Curiam.

The verdict is amply supported by the evidence, and there being no error of law complained of, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

Complaint; from Bacon superior court—Judge Beed. February 10, 1925.

E. E. Williams, for plaintiff.

I. J. Bussell, for defendants.


text:
    16314.
    McGlawn v. Lane & Watkins Incorporated.
    Decided May 14, 1925.
    Complaint; from city court of Atlanta—Judge Beid. January 24, 1925.

      Baley, Daley & Peebles, for plaintiff in error.

      W. A. Sutherland, Jones, Evins; Moore & Powers, contra.
   Broyles, C. J.

1. A person who employs a real-estate broker as his agent to sell realty is bound to pay the agent the agreed price for his services, where the agent procures a purchaser who is accepted by the seller and who enters into a written and binding contract of purchase with the seller; and the seller’s liability to the agent for commissions is not affected by the fact that the purchaser may be unable to comply with the terms of the contract, provided that the agent of the seller has acted in good faith toward his principal. “He can not fraudulently put off an insolvent person on his principal, and thus entrap him.” Payne v. Ponder, 139 Ga. 283, 287 (77 S. E. 32) ; Odell v. Dozier, 104 Ga. 203 (2) (30 S. E. 813) ; Roberts v. Prater, 29 Ga. App. 245 (1) (114 S. E. 645). Under this ruling the demurrer to the petition was properly overruled.

2. The court did not err in holding that the written contract sued upon, at least in respect to the commissions of the plaintiff, was clear and unambiguous, and in rejecting parol evidence offered to vary the terms of the contract as written.

3. A verdict was directed for the plaintiff, but such direction is not assigned as error in the bill of exceptions, nor complained of in the motion for a new trial. It follows, under the repeated rulings of the Supreme Court and of this court, that the judgment overruling the motion for a new trial will not be reversed, if there is any evidence authorizing the verdict directed. The verdict directed being authorized by the evidence, the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16317.
    Taylor v. Mathis.
   Broyles, C. J.

1. The verdict was authorized by the evidence, and the special grounds of the motion for a new trial are merely in elaboration of the general grounds.

Decided May 14, 1925.

Complaint; from city court of Nashville—Judge W. R. Smith. January 31, 1925.

Hendricks & Hendricks, for plaintiff in error.

Dewey Knight, contra.

2. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error for the award of damages is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16318.
    Colonial Hill Company v. Humphries.
    Decided May 14, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 6, 1925.
    Application for certiorari was made to the Supreme Court.
    The notes sued on were payable originally to the Cobbs Land Company, and recited that they were for “part of purchase-money for lot No. 3, Block H, as per plat on the Cobbs Land Company’s property situated in land lot No. 134 of the 14th district of Fulton county, Georgia.” They were dated December 11, 1911. They were indorsed to Colonial Hill Company. The defendant pleaded as follows:
    “1. On the 11th day of December, 1911, she entered into a contract with the Cobbs Land Company, whereby the said . . company agreed to sell her lot No. 3 in Block H..of the Cobbs Land Company’s subdivision for $1100, $10 cash and the balance in monthly installments of $10 each, beginning January 16, 191.2, for which she executed 109 notes, including the notes sued on, . . and upon payment of one third of the purchase price, in addition to interest, that Cobbs Land Company would make her a bond for title to said lot, whereupon said contract would be can-celled. Said contract further stipulated that until said one third shall have been paid, defendant was merely a tenant of Cobbs Land Company, and that in the event she should, during said term of tenancy, fail to meet within thirty days after maturity cither of said notes, she agreed voluntarily to surrender possession of said land to Cobbs Land Company; and that until the time for making said bond for title, the relation of landlord and tenant should exist between the parties and she had no right, title, interest, or equity in said land, but merely the right to use it as a tenant, and the rent should be all the moneys agreed to be paid during that time, with the interest accrued on the whole; and that unless each of said installments should be paid by her promptly at maturity, the Cobbs Land Company was under no obligation to execute such bond for title to her. A copy of said contract is hereunto attached as a part of this plea and answer, and is marked Exhibit A.
   Luke, J.

Colonial Hill Company sued Mrs. Humphries on promissory notes in the municipal court of Atlanta. To her answer denying indebtedness demurrers were urged. Upon the conclusion of the evidence a verdict was directed in favor of the defendant. Petition for certiorari was sanctioned, and upon the hearing the certiorari was overruled. Held: The trial court having properly overruled the demurrers to the answers of which complaint is made in the exceptions pendente lite of the defendant, and the evidence having demanded the verdict and judgment complained of, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

“2. Defendant paid the $10 cash mentioned in the contract, and the first twenty-nine of said notes, up to and including the note due May 16, 1914, making an aggregate of $300, besides interest paid by her, but not enough to entitle her to a bond for title according to said contract. The European war came on in the summer of 1914 and defendant became unable to pay any more of said notes, and it was currently rumored that the Cobbs Land Company had become involved and was about to become involved in litigation with the plaintiff, and that the purchasers of the lots would never get anything for their money, and that their contracts were worthless; whereupon defendant, on or about the - day of August, 1914, notified the plaintiff and the Cobbs Land Company that she was not going to pay any more of said notes, and that they could take back the said lot and keep all the money she had paid in as rent. This offer was accepted by the Cobbs Land Company, and defendant voluntarily surrendered possession of said lot, and the Cobbs Land Company accepted said surrender and took back said lot, pursuant to its privilege contained in said contract (Exhibit A).

“3. Nearly ten years passed, during which time defendant heard nothing whatever from Cobbs Land Company or the plaintiff in regard to said notes. She was much surprised to receive a notice from the plaintiff on or about the 24th day of March, 1924, requesting her to pay them.

“4. Plaintiff took said notes, when it.acquired them, with notice of said contract (Exhibit A), and with notice of the rescission of the sale by Cobbs Land Company and defendant, and with notice'of all the rights aiid equities existing between the original parties to said notes. Plaintiff acquired all of said notes after they had matured.

“5. Wherefore defendant says that the consideration of all of said notes has totally failed.”

By amendment the defendant alleged, that the notes were without consideration, because the contract required her, if she missed payment of any note at maturity before payment of a third of all the notes, to surrender the lot and permit the Cobbs Land Company to keep as rental the money paid, and declared that she acquired no right in the lot, and, according to the contract, she had no right to receive anything for any of the notes maturing after the time she first failed to pay a note.

As to paragraph 2 above and paragraphs not set out, the court sustained the demurrer. As to the remainder of the plea as amended the court overruled the demurrer, which attacked each paragraph as not setting out a defense.

George B. Bush, for plaintiff.

Mitchell &■ Mitchell, for defendant.


author: ■Broyles, G. J.

text:
    16339.
    Sims v. The State.
    Decided May 14, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 4, 1925.

      Louis E. Foster, for plaintiff in error.

      John A. Boylcin, solicitor-general, Roy Dorsey, solicitor, Ralph E. Pharr, contra.
   ■Broyles, G. J.

Under the facts of the ease as disclosed by the record, the overruling of the certiorari was not error.

Judgment affirmed.

Luke■ and Bloodworllv, JJ., concur.


author: Jenkins, P. J.

text:
    15909.
    AMERICAN AGRICULTURAL CHEMICAL COMPANY v. BANK OF MADISON.
    Where a defendant in fi. fa. had dissolved a garnishment by filing a bond with security, conditioned for the payment of the judgment that should be rendered on the garnishment, pursuant to the provisions of sections 5280 and'5281 of the Civil Code (1910), and the garnishee, after the expiration of the term at which its answer was due in regular course, submitted an answer admitting indebtedness to the defendant in fi. fa. in a stated amount, setting forth grounds why such answer had not been previously filed, and praying that the court allow and file the same nunc pro tunc, and where the plaintiff thereupon filed a written motion to strike the answer as not having been filed in proper time, and the court entered a judgment that, “under all the peculiar facts of this case it would be proper for the court to let this answer be filed,’1 but no subsequent or other judgment or ruling was made in the cause, a bill of exceptions thereto by the plaintiff in garnishment, merely excepting to the allowance of and the refusal to strike the answer, is premature, and this court is without jurisdiction to determine the same. The motion to dismiss must therefore be granted.
    Decided May 18, 1925.
    Garnishment; from Morgan superior court—Judge Park. September 2, 1924.
    J. A. Mitchell, for plaintiff.

      E. W. Butler, for defendant.
   Jenkins, P. J.

When this case was previously before this court on exceptions taken to an order discharging the garnishee and relieving it of the duty to answer the summons in garnishment, and refusing the motion of the plaintiff in garnishment, made during the term, to vacate that judgment, it was held, that “the dissolution of a garnishment by bond does not relieve the garnishee from answering. In case of such dissolution the garnishee must nevertheless answer, but, on answering, is discharged from liability, and the remedy of the plaintiff is on the bond.” In the opinion delivered by Judge Bell it was further said: “ Since it thus appears that under the provisions of the said act (Civil Code 1910, §§ 5280, 5281), a judgment against the garnishee is a condition precedent to a judgment on the bond to dissolve the garnishment . ., the garnishee is not relieved from all liability growing out of the service of the summons merely because of the filing of a dissolution bond, but it is his duty to make answer under the summons, in order that the court may adjudicate what funds ‘would have been subject to the garnishment if it had not been dissolved/ so that judgment may be entered accordingly on the dissolution bond.” American Agricultural Chemical Co. v. Bank of Madison, 32 Ga. App. 473 (2), 475 (123 S. E. 921).

After this judgment, reversing the ruling that the garnishee, because of the dissolution of the garnishment by the defendant, was not required to answer, and that it should be discharged, was made the judgment of the trial court, the garnishee submitted to the trial court its answer, admitting a stated indebtedness to the defendant at the time of service of the summons, and setting up its reliance on the previous ruling that it was not required to answer, and other grounds why its answer should be allowed nunc pro tunc. In objecting to its allowance the plaintiff filed a written motion to strike. At the same time it filed also a written motion to enter a judgment by default against the garnishee, because no answer had been filed in the time required by law. It appears, however, that the only judgment entered by the trial court was an order allowing the answer to be filed, and that no action whatever was taken on the motion to enter judgment by default for the plaintiff. It further appears that the only exceptions taken are to the order thus entered,—that is, to “the refusal of the court to strike the said answer upon the motion filed by the said plaintiff in error,” and in the bill of exceptions it is set forth merely that said judgment “was a final determination of garnishee’s right to file answer.” It is true that the bill of exceptions uses the following language, “the decision of the Court of Appeals made it the law of the case that judgment should be entered in favor of the plaintiff in garnishment,” but this is set forth merely as a reason why the order actually taken and the refusal of the motion to strike the answer were error.

Under the provisions in sections 5282 and 5283 as they existed prior to the amendment in 1901, a judgment by default against a garnishee failing to answer could be taken only where a claimant, other than the defendant, filed bond and dissolved the garnishment; in which event, under the then and still existing provisions in the latter section, “if said garnishee fails to answer within the time required by the laws of this State, judgment shall be had against him, and he shall be liable thereon, notwithstanding any bond that may have been executed by any claimant of the fund or property in his hands.” Accordingly, it was held, in 1900, that in a case where the defendant had dissolved the garnishment, although “it is the duty of the garnishee to answer notwithstanding this fact, . . the law does not authorize a judgment by default to be entered against the garnishee if he fails or refuses to answerand it was suggested that a rule against the garnishee for contempt would be the only proper remedy. Garden v. Grutchfield, 112 Ga. 274, 278 (37 S. E. 368). This ruling, however, was-before the amendment of the law relating to dissolutions by defendants. In the year 1901 the provisions, now in section 5281, were amended by adding these words: “In case the garnishee-fails or- refuses to file the answer provided for in this section,judgment by default may be entered against him for such air amount as may have been obtained by judgment against the defendant, which judgment may be enforced against the garnishee,notwithstanding a bond to dissolve the garnishment may have been filed by the defendant; and upon such judgment being entered, judgment may be had for the amount thereof against the defendant and the sureties on the bond to dissolve the garnishment.” (Italics ours.) Ga. L. 1901, p. 43.

Under the present law, therefore, the judgment of the trial court in refusing to strike the garnishee’s motion to answer and in allowing the filing of the answer was not a final judgment,' nor would a judgment in accordance with the contention of the plain-' tiff in garnishment have been final. Civil Code (1910), § 6138. If the answer should be taken as having been properly allowed and-filed, it would follow that the plaintiff would be entitled to obtain a judgment against the funds thus shown to be in the garnishee’s hands, for the purpose of showing “what funds would' have been subject to the-garnishment if it had not been dissolved,”' and on doing this the plaintiff could proceed under section 5280 to “enter up judgment upon such bond against the principal and securities, as judgment may be entered against securities upon appeal.” The order allowing the answer admitting indebtedness can not, therefore, be taken as in any sense a final judgment. The procedure requires that a judgment shall be first entered for the amount admitted to be held by the garnishee, as limited by the amount of the previous judgment against the defendant. This is a condition precedent to judgment on the dissolution bond against - the defendant and his security. Smith v. Kennedy, 125 Ga. 830 (1) (54 S. E. 731); previous ruling in this case, 32 Ga. App. 473, 475 (123 S. E. 921). If, on the other hand, the order overruling the motion to strike the motion to answer and the answer should be taken as erroneous, then, under section 5281 as now amended by the act of 1901, “judgment by default may be entered against [the garnishee] for such an amount as may have been obtained by judgment against the defendant, which judgment may be enforced against the garnishee, notwithstanding a bond to dissolve the garnishment . ., and upon such judgment being entered, judgment may be had for the amount thereof against the defendant and the sureties on the bond given to dissolve the garnishment.”

The record in the instant case shows, that, prior to the instant judgment, the plaintiff had obtained judgment against the defendant in the suit on which the garnishment was based, for $447.81 principal, $41 interest to date, future interest at 8 percent., and costs of court. The answer sought to be filed by the garnishee and allowed by the trial court admitted indebtedness in the sum of $1,043.19. The written motion of the plaintiff to enter judgment by default, above referred to, but on-which no ruling appears to have been made and no exceptions are taken, did not move for judgment in any particular amount. But even if the general motion of the plaintiff to enter judgment by default against the garnishee could be taken as sufficiently specific as to amount, since there does not appear to have been any ruling thereon, and since no exception is taken to any refusal to enter such a judgment, it can not be said, under any view of the ease as disclosed by the record, that if a judgment had been rendered in accordance with the plaintiff’s contention, it wrould have been a final determination of the cause. The proceedings to this time are merely interlocutory. The writ of error, being therefore premature, must be dismissed.

Leave, however, is granted to file in the court below a copy of this bill of exceptions as exceptions pendente lite.

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    15934.
    Holder et al. v. Southern Cotton Oil Company.
    Decided May 18, 1925.
    Complaint; from city court of Jefferson—Judge Bryson. July 15, 1924.
    The lease contract contains the following provisions: “The consideration moving to the said party of the first part from the parties of the second part for the lease hereby created is as follows, to wit: the sum of seventeen hundred and fifty ($1750.00) dollars, payable on or before May 1st, 1914, and seventeen hundred and fifty ($1750.00) dollars payable on or before May 1, 1915; said deferred payments being evidenced by two (2) promissory notes, dated this day, payable to the party of the first part, for- the sum of seventeen hundred and' fifty ($1750.00) dollars each, payable respectively on or before the 1st day of May in the years 1914 and 1915, and signed by the parties of the second part, same being the joint and several obligations of said parties of the second part. It is hereby understood that tlie sum of seventeen hundred and fifty dollars ($1750.00) payable May 1st, 1914, is the consideration for the rent from the 1st day of July, 1913, to the said 1st day of May, 1914. It is covenanted and agreed by the parties of the second part in behalf of themselves, their heirs and representatives, that they will pay all taxes, as hereinafter provided, and assessments or other public charges which may properly become chargeable upon said property during the term of said lease.” It is further provided that the rent shall abate in whole or in part accordingly as the property may be destroyed by fire within specified dates. The contract contains no stipulation that the lessee shall be exempt from the payment of taxes on account of fire. Under the provision as to abatement of rent, the lessees were relieved from payment of rent for the last year of the lease, and suit was brought against the lessees for the amount of taxes assessed for that year. The trial judge directed a verdict in favor of the plaintiff, and the defendants excepted.
   Jenkins, P. J.

1. There being no pleading setting up fraud, accident, or mistake in the execution of the contract as sued on, the court did not err in rejecting the testimony offered for the purpose of proving the same, and the only question presented by the record is whether, under the contract as executed, the defendants were liable for the taxes sued for.

2. A stipulation of a lease, providing that the lessee shall pay the taxes against the property covered by the lease, necessarily lias for its consideration the use of the property by the lessee, or the making of the lease, and therefore such a requirement may by the terms of the instrument be so expressed as to constitute a part of the rent; but not necessarily so, since such a provision may constitute a separate and independent covenant based upon the consideration of the making of the lease, but expressly distinguished from ■ the amount contracted to be paid as rent. In the latter case the expressly defined rent obligation can not be so construed and enlarged as to embrace such a separate and independent covenant to pay taxes. -36 Corpus Juris, 114 (§ 754) ; 291 (i 1051), note 78. Accordingly, where the provision as to taxes constitutes a separate and independent covenant, and the amount of rent to be paid is expressly and independently defined, even though the contract contains a provision that, in case the building is destroyed by fire during the term of the lease, the rent shall abate, the destruction of the building does not exempt the lessee from the payment of taxes in accordance with the terms of such a separate and independent covenant, in the absence of some such similar stipulation providing for such exemption. 36 Corpus Juris, 121 (§ 760).

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

A. G. Brown, Shackelford & Shackelford, for plaintiffs in error.

Jere S. Ayers, Lamar G. Rucker, contra.


text:
    15937.
    Veal et al. v. Deepstep Consolidated School District et al.

   Jenkins, P. J.

1. Where, pursuant to the act of 1919 codifying the school laws of the State, as modified hy section 1 of the act of 1921 amending the former act (Ga. L. 1921, pp. 221, 224; Park’s Code Supp. 1922, § 1439 (a)), the board of trustees of a consolidated school district hold an election for the purpose of determining whether bonds shall be issued for the purpose of building and equipping a schoolhouse for the district, the statute requires that they “shall follow the law as required of county authorities in section 440 et seq.” of the Civil Code in the issue of such bonds.

2. Under the procedure thus provided, the solicitor-general of the circuit files in the superior court a petition in the name of the State of Georgia against the “division desiring to issue bonds under such election,” an order from the judge is entered thereon requiring the “division, by its proper- officers, to show cause” why the bonds should not be confirmed and validated, and, after service and notice in the manner stated, a hearing is had to “determine all of the questions of law and of fact in said cause.” The statute provides that the judge “shall render judgment thereon, and in the event his judgment shall be in favor of the issuance of the bonds, a judgment and order shall be issued to that effect, and any citizen of the State of Georgia, resident in such . . division, so desiring to issue said bonds, may become a party to said proceedings, and, if dissatisfied -with the judgment of the court confirming and validating the issuance of the bonds, may except thereto within 20 days from the judgment, . . and upon the hearing . . such bill of exceptions shall be heard in accordance with the practice regulating the hearing of bills of exceptions in criminal cases.” Civil Code (1910), §§ 446, 447, 448.

Decided May 18, 1925.

Validation of school bonds; from Washington superior court— Judge Hardeman. September 4, 1924.

John R. Irwin, for plaintiffs in error.

Walter F. Grey, solicitor-general, J. J. Harris, contra.

3. Where in such a case, on a petition filed in the name of the State by the solicitor-general against a consolidated school district, certain citizens intervene and are made by order parties defendant, file an answer attacking the legality of the election and objecting to the validation of such bonds, and the court on a hearing enters an order reciting that “the whole question turns upon a question of law,” permitting the intervention to be “filed to become a part of the record,” and providing that “the same is dismissed as being insufficient in law to prevent the validation of said bonds,” but where such order merely provides that “the petitioners may take an order in proper form validating said district school bonds,” and it does not appear from the record that any such judgment of validation was ever actually entered, or that any exceptions are taken thereto, there is no final judgment “confirming and validating the issuance of the bonds” from which a bill of exceptions will lie, as provided by section 447 of the Civil Code. Accordingly, the writ of error, being premature, must be dismissed. Leave, however, is granted to the plaintiffs in error to treat as exceptions pendente lite the official copy of the bill of exceptions filed in the court below.

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    15949.
    WILLIAMS v. RILEY DRUG COMPANY.
    1. It is not necessary, in order to bind a surety, that there should be a consideration to him individually for the suretyship. It is sufficient if there be a valid consideration out of which the suretyship grew. Gay v. Mott, 43 Ga. 252, 255. “An extension of time by a creditor to his principal debtor is a sufficient consideration to support the indorsement of a note renewing the original debt.” Hollmgshead v.' American Wat. Bank, 104 Ga. 250 (2) (30 S. E. 728); Haymans v. Bennett, 29 Ga. App. 265, 267 (114 S. E. 923) ; Broughton v. Lazarus Go., 13 Ga. App. 153 (78 S. E. 1024) ; Jones v. Southern Mortgage Go., 23 Ga. App. 567 (99 S. E. 42).
    2. The actual performance of a promise of forbearance by the creditor or obligee is a sufficient consideration for the contract of a surety, although a definite time is not agreed upon; ahd if, in reliance upon the agreement of the surety, the creditor forbears to bring suit against the principal, and actually grants him an indulgence for a reasonable and appreciable time within which to pay the debt or note, the surety is bound. The charge of the court was in substantial accordance with this rule, and is not subject to the exception taken, which does not complain that the court failed to qualify its instruction with reference to the reasonableness of the period of indulgence, but insists only that the agreement to indulge must have been for a definite or particular time.
    3. Since the jury were authorized to find that the seven months’ indulgence given to the maker of the note in consideration of the defendant’s indorsement was a reasonable indulgence, the verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided May 18, 1925.
    Complaint; from city court of Americus—Judge Harper. September 26, 1924.

      T. 0. Marshall, R. L. Maynard, for plaintiff in error.

      Jones, Park & Johnston, W. T. Lane & Son, contra.
   Jenkins, P. J.

The principle of law laid down in the second division of the syllabus does not appear to have been heretofore dealt with' either by the Supreme Court of this State or by this court, but the rule adopted appears to be supported by the great weight of general authority. The rule is stated in 32 Cye. 55, as follows: “Forbearance by the creditor or obligee is sufficient consideration for the contract of a surety, although a definite time is not agreed upon; and if, in reliance upon the agreement of the surety, the creditor forbears to bring suit against the principal, or grants him an extension of time within which to pay the debt, or note, the surety is bound.” In 6 Ruling Case Law, 661, it is said: “While it seems to have been thought at one time that the promise to forbear which would serve as a consideration for a guaranty by a third person must be for a definite time, or for a reasonable time, the conclusion reached in the later decisions is that, where there is an agreement to forbear, it will be presumed to be for a reasonable time, in the absence of any stipulation as to a specified time. Such is the legal construction of such a promise. The debtor, therefore, by such a promise, does obtain a right, not only to some delay, but to a reasonable delay, such as, under all the circumstances he is reasonably entitled to. Therefore a promise to forbear, although for an indefinite time, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a promise guaranteeing the payment of a debt.” In discussing this question the New Jersey Court of Errors and Appeals, in United Globe & Rubber Mfg. Co. v. Conrad, 80 N. J. L. 286 (78 Atl. 203, Ann. Cas. 1912 A, 412), speaks as follows: “We •entertain no doubt that an agreement to forbear action at law against the Standard Company for the existing account would furnish a sufficient and lawful consideration for the making of the bond. Such a promise where no period is fixed imports that the forbearance shall be for a reasonable time and (at least if followed by actual forbearance for a reasonable time) furnishes a sufficient consideration for the undertaking of a third party to pay the indebtedness.” To the same effect is a decision of the Supreme Court of Minnesota: “Where the promise to extend for an indefinite time is followed by delay for a reasonable time to enforce payment, it is a good consideration.” Security Nat. Bank' v. Pulver, 131 Minn. 454 (155 N. W. 641).

The difficulty we have encountered in determining the proper rule arises out of certain holdings of our courts in dealing with the question of the discharge of á surety, where, without his consent, the payee of the note has granted indefinite indulgence. In these cases, both the Supreme Court and this court have held that the surety is not discharged, even though such an indefinite promise of indulgence be founded upon a consideration. In Bunn v. Commercial Bank, 98 Ga. 647 (1) (26 S. E. 63), the Supreme Court said: ' “An agreement by the holder and owner of a promissory note with thé maker of the same to extend the time of its payment for an indefinite period, though based upon a valuable consideration, does not discharge a surety on such note from liability. As such an agreement would not prevent the immediate bringing of an action, the making of it really amounts to no more than ‘a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies,’ and it therefore stands upon an entirely different footing from an extension for a definite period.” It was held by this court in Ver Nooy v. Pitner, 17 Ga. App. 229 (3) (86 S. E. 456), that, “in order to discharge a surety by an extension of time to the principal, not only must there be an agreement for the extension, but the proof must show that the indulgence was extended for a definite period fixed by the agreement.” The basis of these decisions is that such a promise of indefinite indulgence does not “tie the hands” of the creditor, and therefore affords no basis for the surety’s discharge on account of a change in the nature of the risk which he had assumed. If the question we were called upon to determine, was whether or not .a mere unexecuted and indefinite promise to forbear is sufficient to support an indorsement, we are inclined to believe that the answer would have to be in the negative, on the theory that nothing had been done and nothing had been effectively promised by the payee. But, as was said by this court in Sylvania R. Co. v. Sylvania Lumber Co., 8 Ga. App. 656 (70 S. E. 51), “an indefinite or unilateral agreement is binding upon the parties .as to its terms so far as they have mutually acted upon themand, in accordance with this principle, where indulgence is. promised in consideration of an indorsement, and on the faith of the indorsement indulgence is actually extended-for a reasonable time, the indorser should not be allowed to obtain for his principal such definite benefits and then absolve himself from liability, on--the theory that the agreement, though rendered certain by being acted on, was originally too indefinite to be enforceable. Nor does it seem that'the underlying principles here involved are the- same as in those eases dealing with the question of a surety’s discharge. In a case of the character now before -us, there was, to begin -with, a potential but perhaps unenforceable benefit inuring to the indorser’s principal, which has subsequently ripened into an actual and definite benefit by virtue of the execution of the promise. We might, for illustration, suppose that the indefinite consideration promised by the payee on the faith of the indorsement had consisted of something other than indulgence. In such a case, had the consideration thus promised by the payee been actually bestowed, it could not be recovered back or reclaimed, on the theory that the nature of his promise prior to its execution was vague and indefinite. Neither should the indorser be allowed to disclaim his- contract of indorsement after his principal has actually' secured definite and certain benefits in accordance with the payee’s promise made to him. A surety is not discharged on account of an unauthorized but indefinite indulgence granted to his principal, for the reason that his risk has never been increased. In such a case it is not a question of whether -a consideration has gone to the principal. After the principal has actually received the indulgence, he has in fact received a contractual benefit, but the surety was not hurt. There was never a time when the principal could claim and demand future indulgence; and, as was said in the Bunn case (98 Ga. 647), the fact that it was actually granted could amount to nothing more than negligence on the part of the creditor to prosecute with -vigor his legal remedies. This does not ordinarily work a discharge. Here, however, it is not a question of a discharge being worked on account of the risk being increased, but the contract of indorsement is good if supported by a consideration moving to the principal debtor; and since the principal, on the faith of the indorser’s promise, has actually enjoyed the fruits and benefits made certain by such actual performance, the contract of indorsement can not be said to be a mere nudum pactum and consequently unenforceable.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16018.
    Jarriel v. Savannah Guano Company.
   Jenkins, P. J.

Testimony without probative value, even though admitted without objection, will not support or sustain a verdict. Roesel v. Green, 28 Ga. App. 694 (1) (113 S. E. 35). Mere hearsay is without probative value. Whittle v. Citizens Bank of Ashburn, 29 Ga. App. 308, 309 (114 S. E. 920); Rabun v. Commercial Nat. Bank, 21 Ga. App. 43 (93 S. E. 524). But “where, in a claim case, it was admitted the defendant in fi. fa. was in possession of the land levied on at the time of the levy, any declarations made by the defendant up to the time of the levy and while in possession were admissible in evidence.” Rutledge v. Hudson, 80 Ga. 266 (6) (5 S. E. 93) ; Smiley v. Padgett, 123 Ga. 39 (50 S. E. 927). Furthermore, “the language of the witness that it was his ‘understanding’ as to certain facts, otherwise positively stated, can not be rejected as hearsay, but, without further explanation, will be taken as resting upon actual facts within the personal knowledge of the witness. Such a statement could have been tested on cross-examination, and, in the absence of any modification or explanation on further examination, or any exception after timely objection to such evidence, can not be disregarded.” Bull v. Carpenter, 32 Ga. App. 637, 639 (124 S. E. 381). Consequently, where on the trial of a claim to a certain crop of tobacco levied upon after maturity and gathering, it appeared that the defendant in fi. fa. was in possession at the time of the levy, and a witness testified that the defendant in fi. fa. told him at the time the note and mortgage ■ was taken that the crop raised on his place was his, and that he (the witness) “understood all along that the crop was his” (the defendant’s in fi. fa.), there being no exception taken to such evidence, and no modification or explanation of the statement upon further examination, this court can not as a matter of law say that a verdict against the claimant was without evidence to support it.

Decided May 18, 1925.

Levy and claim; from city court of Eeidsville—Judge Cowart. September 9, 1924.

B. G. Collins, B. W. Barnes, for plaintiff in error.

H. C. Beasley, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16023.
    Pafford v. Hinson & Company.
   Jenkins, P. J.

1. “When a married woman dies leaving a husband surviving her, the husband is primarily liable,' and not the estate of the deceased, for the payment of her funeral expenses.” The wife may by will expressly provide for the payment of such expenses from her estate, but in the absence of such a testamentary provision her estate can not be held liable for such a charge. Kenyon v. Brightwell, 120 Ga. 606 (3), 613 (48 S. E. 124, 1 Ann. Cas. 169).

2. Notwithstanding the rule stated above, a creditor may expressly contract with and extend credit to a third person for items of funeral expense furnished for the deceased wife of another, and in that event, where the credit is actually extended to such third person, and there has been no original or subsequent express or implied contractual relationship between the creditor and the husband, rendering him liable, the debt and liability are governed by the contract, and remain against such third person as may thus incur the same.

3. Performance by a creditor making delivery, and acceptance by the debtor of such delivery, of goods in accordance with the terms of an oral contract, required to be in writing, will take the same without the statute of frauds. Civil Code (1910), § 3223 (2, 3); Castlen v. Marsliburn, 8 Ga. App. 400 (2), 403 (69 S. E. 317) ; Alford v. Davis, 21 Ga. App. 820 (2) (95 S. E. 313).

4. In the instant action on an open account against the husband of a deceased wife for certain items of funeral expense, the trial court directed a verdict for the plaintiff. Under the evidence, it appears that the wife was killed in a railroad wreck in which the husband was injured, and that he was unable to attend to any business prior to the funeral of the wife, and that the funeral arrangements with the plaintiff undertaker were made by a daughter and the son-in-law of the deceased. There was evidence to the effect that the son-in-law, in ! ordering the casket and other items, told the plaintiff that the deceased “was his mother-in-law, and that he wanted her- put away in good style, and to fix her up and mail him the bill,” and he would “pay it;” that the' name of the husband was not mentioned during these arrangements; and,' according to certain evidence, it appears that the first statements of account were mailed to the son-in-law as being charged to him. The defendant husband testified that he had nothing to do with ordering out the funeral items, although it appears that he knew that the plaintiff was preparing the deceased for burial and was furnishing the items. The plaintiff, on the other hand, testified that, when the debt was contracted, he “had’ never seen [the son-in-law] before, knew nothing about him, . . didn’t extend any credit to him, . . knew [the defendant], and thought he would pay,” and that he simply mailed to the son-in-law the statement of account promptly to help the defendant out. There was some evidence to the effect that the son-in-law had stated, not that he would pay the account, but that he would see that it was paid. The defendant admitted in his testimony that he had turned over $150 to his son-in-law to be applied on the account. Held: While the evidence authorized a verdict in favor of the plaintiff, sudh a finding, was not demanded as a matter of law, and the question whether the son-in-law actually contracted for the items on his-own account and on the faith of his individual credit, or whether', in the emergency created by the death of the wife and the temporary disability of the husband, he was merely assuming to act for the incapacitated husband in ordering out the necessary items for which the latter was legally responsible, and which were furnished and delivered without objection, should have been submitted to the jury. If the latter was the ease, and in so doing the son-in-law merely sought to guarantee the 'payment of the debt on behalf of the husband, to whom the erédit was actually extended, this would not relieve 'the' husband of his duty to pay as imposed by law. See Raoul v. Newman, 59 Ga. 408, 409 (3, 4); Green v. Coast Line R. Co., 97 Ga: 15, 30 (24 S. E. 814, 33 L. R. A. 806, 54 Am. St. 379) ; Norton v. Rourke, 130 Ga. 600 (61 S. E. 478, 18 L. R. A. (N. S.) 173, 124 Am. St. Rep. 187); See also Cordray v. James, 19 Ga. App. 156 (91 S. E. 239).

Decided May 18, 1925.

Complaint; from city court, of Brunswick—Judge Butts. October 16, 1924.

Farr & Powell, for plaintiff in error.

Conyers' & Wilcox, contra.

Judgment reversed.

Bell, J., 'concurs. StephensJ., concurs specially.


author: Jenkins, P. .J.-.

text:
    16029.
    Fox et al. v. The State.
   Jenkins, P. .J.-.

.Where bail is taken prior to a commitment hearing, in order to bind the defendant to appear subsequently before a trial court to answer an indictment for the offense stated in the bond, the condition of the bond should indicate such requirement. Thus, where a member of the county police, executing a warrant issued by a justice of the peace on an affidavit charging a person with the offense of “misd.,” attested and approved a bond signed by the accused and sureties, conditioned only to appear “before the court-house” on the following day “and from term to term and from time to time thereafter as required, to answer to the charge of misd. of which he stands charged and for which lie has been arrested,” and the bond failed to indicate any trial court which might subsequently try the offense charged, and it only appeared from certain parol proof that the purpose of the bond was merely to require the defendant’s appearance “at a committal trial before a justice of the peace” whose identity was not shown by the bond, and where it does not appear that such a commitment trial was held or waived by the defendant, and no other proceedings against him were had until an indictment was returned by the superior court of the county charging him with a criminal libel, the bond was insufficient as a legal basis for a scire facias issued by the superior court, upon motion of the solicitor-general, to forfeit the recognizance, on account of the defendant’s failure to appear in the superior court to answer the indictment. The rule might be different if the accused had in effect waived a preliminary hearing by executing a bond conditioned to appear before some definitely described court having jurisdiction to try him for the criminal offense charged. See Bird v. Terrell, 128 Ga. 386 (1, 6) (57 S. E. 777) ; Youmans v. Slaton, 141 Ga. 795 (82 S. E. 231); Hopkins v. State, 5 Ga. App. 700 (63 S. E. 719); and Penal Code (1910), §§ 947, 948, 949, 918, 922, 933, as to commitment procedure. The court therefore erred in entering judgment against the sureties. 6 Corpus Juris, 995.

Decided May 18, 1925.

Forfeiture of recognizance; from Gordon superior court—Judge Tarver. August 27, 1924.

M. B. Eulanks, for plaintiffs in error.

J. M. Lang, solicitor-general, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16044.
    Greer v. Morris.
   Jenkins, P. J.

1. Where a contract for the purchase of land is rescinded by the consent and agreement of both parties, “in the absence of any agreement to the contrary in the subsequent contract of rescission, the rule governing a recovery is that the purchaser is entitled to a return of the partial payments plus the value of any improvements made, less a deduction of the rental value of the land and any injury or damage to the property during the term of occupancy.” Haygood v. Kennedy, 27 Ga. App. 689 (109 S. E. 522); Mehrtens v. Knight, 29 Ga. App. 390 (2 6) (115 S. E. 506). In the instant action by the purchaser to recover a $200 partial payment made to the vendor, it not only appears from undisputed evidence that the vendor impliedly consented to a rescission of the contract of sale by selling the land in question to another, but he himself testified, “We called the trade off;” the only dispute being whether or not the vendor had at the time of the rescission expressly - agreed to repay the $200 partial payment, the purchaser and his wife testifying that such an express agreement was made, and the vendor testifying that “nothing was said about the $200.” There being no claim or evidence relating to any rental value for the portion of the land on which the defendant vendor testified that the purchaser had temporarily pastured his stock, so as to authorize a deduction from the $200 partial payment, a verdict for the plaintiff in the full amount was demanded.

Decided May 18, 1925.

Complaint; from Milton superior court—Judge Blair. October 18, 1924.

J. P. Brooke, for plaintiff in error.

George F. Gober, G. B. Walker, contra.

2. The defendant vendor having expressly consented to a rescission of the contract of sale made with the plaintiff purchaser, the defendant was not entitled to a recoupment of the loss in purchase price incurred in the subsequent sale of the land to another, and the court did not err in so stating to counsel in the presence of the jury.

3. The verdict being demanded for the plaintiff, the court properly overruled the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    15236.
    Fourth National Bank of Macon v. Swift & Co.
    Decided May 19, 1925.
    Money rule; from city court of Eastman—Judge O. J. Franklin. November 16, 1923.

      Walter DeFore, James C. Estes, for plaintiff in error.

      Lawson & Ware, contra.
   Bell, J.

The Supreme Court on certiorari (Fourth National Bank v. Swift & Co., 160 Ga. 372, 127 S. E. 729) having reversed the judgment of this court by which the judgment of the trial court was affirmed (see 32 Ga. App. 589, 124 S. E. 181), the former judgment by this court is hereby vacated, and so much of the opinion rendered in connection therewith as is inconsistent with the opinion and decision of the Supreme Court is withdrawn; and the judgment of the trial court is accordingly reversed.

Judgment reversed.

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


text:
    15879, 15903.
    CENTRAL OF GEORGIA RAILWAY CO. v. BRIDWELL; and vice versa.

    1. In this action for the homicide of the plaintiff’s husband, who was killed upon the defendant’s railroad-track by the running of its engine and cars, the first count of the petition did not as a matter of law fail to show the breach of a duty of diligence owing by the defendant to the decedent, nor affirmatively disclose that the decedent’s death was caused by his own negligence or want of ordinary care. A cause of action was set forth, and the court erred in sustaining the demurrers and striking this count.
    2. Where a suit for a homicide is brought in two counts, in the first of which the plaintiff seeks a recovery for mere negligence, and in the second of which a recovery is sought as for a wilful and wanton killing, and, after the first count is erroneously stricken on demurrer, the case proceeds to trial upon the second count, and the trial results in a verdict for the defendant, which the court subsequently sets aside on the plaintiff’s motion for a new trial, and where the defendant brings to this court a main bill of exceptions complaining of the grant of the motion, and the plaintiff, by a cross-bill, excepts to the judgment striking the first count, the cross-bill will be disposed of first, and, the judgment complained of in that being reversed, the writ of error issued upon the main bill will be dismissed.
    3. “While under the law of the code it is the general rule that a person can not recover, despite the negligence of the railway company, if by the exercise of ordinary care on his part the consequences of the company’s negligence could have been avoided, still this rule does not have application where the negligence on the part of the company is adjudged to have been wanton and wilful.” Tiee v. Central of Georgia Ry. Co., 25 Ga. App. 346 (2 e) (103 S. E. 262).
    4. Where an action'is brought against a railway company for the killing of a person upon its railroad-track by the running of its engine and cars, the plaintiff, on proving that the death occurred by the means alleged and that the circumstances were such that the servants of the railway company were under a duty to anticipate that a person would be upon the track at the particular time and place in question, would be entitled to the benefit of the presumption arising under § 2780 of the Civil Code, although the killing was alleged to have been wilful and wanton.
    Decided May 19, 1925.
    Damages; from Wilkinson superior court—Judge Park. August 9, 1924.
    Application for certiorari was denied by the Supreme Court.
    Mrs. Mary A. Bridwell sued the Central of Georgia Railway Company for the homicide of her husband. The petition was in two counts. The first count was based upon the theory of negligence, while the second count charged that the killing was wilful and wanton. The defendant filed general and special demurrers to each count. The petition was amended. Thereafter the demurrers were sustained as to the first count and .overruled as to the second count. The result was that the first count of the petition was stricken in its entirety. The case proceeded to trial upon the second count and the trial resulted in a verdict for the defendant. The plaintiff filed a motion for a new trial containing the usual general grounds and several special grounds having reference only to the charge of the court. The court sustained the motion upon one of the special grounds and overruled it as to all other grounds, both general and special. In the main bill of exceptions the defendant excepted to the grant of the motion for a new trial and contended that the evidence demanded the verdict rendered, and that the motion, therefore, could not lawfully be granted, regardless of any errors that may have been committed by the court in charging the jury. The defendant has brought no exceptions to the overruling of its demurrers to the second count. By a cross-bill of exceptions- the plaintiff assigns error upon exceptions pendente lite taken by her to the sustaining of the demurrers to the first count of the petition, and also-upon the judgment overruling the special grounds of her motion for a new trial, save the one upon which it was granted.
    As shown in the opinion, it is unnecessary to set forth any of the allegations of the petition except those contained in the first count. This count as amended made, among others, the following averments: that the plaintiff’s husband was killed by the running of the defendant’s locomotive and cars about ten. o’clock at night, when her husband was walking along a pathway on or near the railroad-track, near the town of Toomsboro; that the path, with the defendant’s knowledge, had been constantly and frequently used by pedestrians “as a passageway in going to and fro between points in said town and points in the neighborhood-thereof’’, for a period of fifty or seventy-five years, and that because, of such constant, frequent, and long use of the path, the agents and servants of the defendant in charge of its train “were bound to anticipate the presence of persons upon its railroad at the point where [the plaintiff’s husband] was struckthat on the - particular occasion the decedent was walking along the path from his farm to his home in the town “when he was seized by a sudden violent illness which rendered him unable to continue his course, and insensible and unable to care for his safety, and by reason of which he sat and reclined upon the railroad;” and that “while he was sitting and reclining upon said railroad in a helpless condition as hereinabove stated a through freight train of defendant, moving at a very high rate of speed,” ran over him and inflicted upon him injuries from which he died. It was further alleged that the track over which the train was running at the time it approached the decedent was “perfectly straight” for a distance from him of 1200 yards, and that there was nothing to prevent the engineer and the fireman from seeing him and his perilous and helpless condition in ample time to stop the train before striking him, if they had kept a proper lookout. The defendant’s negligence was alleged to consist in the failure of the engineer and the fireman to anticipate the presence of persons upon the railroad-track at the time and place in question, in running the train at that point “too fast,” namely, at a speed of twenty miles per hour, and in failing to keep such a lookout as would have enabled them to discover the presence of the decedent and his “perilous and helpless condition aforesaid” and to stop the train in time to avoid striking him.

      II. Wiley Johnson, for plaintiff in error.

      John R. L. Smith, Grady G. Harris, Joseph LeGonte Smith, contra.
   Bell, J.

(After stating the foregoing facts.)

As we will later show in this opinion, it is proper that we first dispose of the exceptions taken in the cross-bill to the judgment sustaining the demurrers to the first count of the petition. Hereafter, in using the word “petition,”'we are to be understood as referring to the first count unless it is otherwise stated. With respect to the special demurrers, suffice it to say that they were without merit after the petition was amended; nor do we think that the petition was subject to the general demurrer. It can not be said as a matter of law that there was no duty of care upon the defendant, under the facts alleged, to anticipate the presence of the decedent at the time and place in question (Lowe v. Payne, 156 Ga. 312 (118 S. E. 877); Bullard v. Southern Railway Co., 116 Ga. 644 (1) (43 S. E. 39); Pope v. Seaboard Air-Line Railway, 21 Ga. App. 251 (1) (94 S. E. 311); Central of Georgia Ry. Co. v. Thompson, 25 Ga. App. 715 (1) (104 S. E. 515)); nor that the allegations of the petition failed to show that there was a breach of a duty of diligence toward him. It would be within the province of the jury to decide what was due care on the part of the railroad company and its employees with respect to the speed of the train and the other matters charged in the petition as negligence. Davis v. Whitcomb, 30 Ga. App. 497 (13) (118 S. E. 488); Crawford v. Southern Railway Co., 106 Ga. 870 (1) (33 S. E. 826); Louisville & Nashville R. Co. v. Cline, 136 Ga. 863 (1), 865 (72 S. E. 405); Harris v. Central Railroad, 78 Ga. 525 (6) (3 S. E. 355); Pope v. Seaboard Air-Line Ry., supra; Western & Atlantic Ry. Co. v. Davis, 21 Ga. App. 461 (94 S. E. 660); Chattanooga Ry. & Light Co. v. Wallace, 23 Ga. App. 554 (1) (99 S. E. 57); Tice V. Central of Ga. Ry. Go., supra; Western & Atlantic R. Co. v. Reed, 33 Ga. App. 396 (2) (126 S. E. 393). We might hold, as a'matter of law, that some lower rate of speed would not be negligent, but we can not, under all the facts appearing, make such a holding in regard to the speed alleged in the instant case.

Of course, if it affirmatively appeared from the petition that the decedent by the exercise of ordinary care could have avoided the consequences of the defendant’s negligence, if existing, or that his injury and death were due to his own negligence, the petition would be subject to general demurrer even though it may show that the defendant was negligent. But it is unnecessary in a case of this sort for the plaintiff to negative the negligence or want of ordinary care on the part of the person injured or killed. That is a matter of defense, and the petition in this respect will be good unless it affirmatively appears that the injury or death was the result of the plaintiff’s own negligence or failure to exercise ordinary care. Woolworth Co. v. Wood, 32 Ga. App. 575 (2) (124 S. E. 100), and citations. It was held in the Lowe case, supra, that where a person is sitting or lying in an exposed position on or near a railroad-track, and such conduct is unexcused and unexplained save that it indisputably appears that he had been drinking intoxicating liquors, there can be no recovery for his injury or death by the mere negligence of the railroad company in the operation of its train, a recovery being precluded because of his own gross negligence; but it can not be said in the instant case that the decedent’s presence upon the railroad-track was negligent, when it is explained by the fact, as alleged in the petition, that he was seized by a sndden violent illness which rendered him unable to continue his course, and insensible and unable to care for his safety, and by reason of which he sat and reclined upon the railroad.

In Snowball v. Seaboard Air-Line Railway, 130 Ga. 83 (1) (60 S. E. 189), the Supreme Court said: “If the deceased had been seized by a sudden accession of illness and had fallen unconscious on the track, he would not have been wanting in care so as to defeat a recovery for his death, if the agents of the defendant could have averted the killing in the exercise of proper care.” See also Payne v. Hayes, 25 Ga. App. 730 (1) (104 S. E. 917).

We think that as against a general demurrer the petition set forth a cause of action and that the court improperly dismissed it.

The court having erred in sustaining the demurrers to the petition, all else that was done was nugatory, and the plaintiff is entitled to a new trial regardless of whether the evidence demanded the verdict rendered under the second count and irrespective of any error in the court’s charge. The record, therefore, seems to present a proper case for the application of the rule that when this court or the Supreme Court has before it both a main bill of exceptions and a cross-bill, and the latter presents a question which is controlling upon the ease as a whole, it will be disposed of first, and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed. Chidsey v. Brookes, 130 Ga. 218 (5) (60 S. E. 529, 14 Ann. Cas. 975); Moore v. Kiser, 144 Ga. 460 (2) (87 S. E. 403); DeLoach v. Georgia &c. R. Co., 144 Ga. 678 (3) (87 S. E. 889); Wood v. Turner, 147 Ga. 93 (92 S. E. 878); Betts-Evans Trading Co. v. Bass, 2 Ga. App. 718 (1) (59 S. E. 8); Central of Georgia Ry. Co. v. Waldo, 6 Ga. App. 840 (2) (65 S. E. 1098). The cross-bill of exceptions is not controlling in the sense that a decision of the questions therein raised would amount to a final disposition of the case in the court below; nor would it be controlling unless we conceived that error was committed as alleged in the striking of the first count of the petition; but since we must hold that there was error in that judgment, a decision upon the cross-bill must necessarily dispose of the entire case as made in this court by the present record. Gay v. Gay, 108 Ga. 739 (1) (32 S. E. 846) ; Jordan v. Ga. So. & Fla. R. Co., 105 Ga. 274 (1) (30 S. E. 748).

Any other treatment of the case could but lead to confusion and absurdity. If we should undertake a decision of the question raised by the main bill of exceptions,—that is, whether the court erred in granting the new trial,—we would be confined to a determination alone of whether the evidence demanded the verdict rendered. Carr v. Carr, 157 Ga. 208 (1) (121 S. E. 227). If we answer this question in the affirmative, and, therefore, conclude that relatively to the second' count alone the grant was error, we would nevertheless be powerless to reverse the grant and restore the verdict, because a new trial would still result from the antecedent error in striking the first count, and the defendant would not be benefited by the ruling made. Edwards v. Central of Georgia Ry. Co., 118 Ga. 678 (2) (45 S. E. 462); Davis v. Mayor &c. of Jasper, 119 Ga. 57 (1) (45 S. E. 724); Garlington v. Davison, 122 Ga. 677 (50 S. E. 667); Bingham v. Yundt, 158 Ga. 600 (1) (123 S. E. 870). If it should be replied that the defendant would at least have an adjudication that the evidence as adduced upon the first trial established that the plaintiff was not entitled to recover upon the second count, we shofild answer that there- is no certainty that the evidence will again be the same'; and furthermore the plaintiff should not be denied the opportunity of making out her case under either count, if she can, at the next trial, when the whole of the last trial was rendered ineffectual by the erroneous dismissal of the first count. The plaintiff is not required to elect upon which count she will proceed. Southern Railway Co. v. Chambers, 126 Ga. 404 (5) (55 S. E. 37, 7 L. R. A. (N. S.) 926). The striking of the first count of her petition resulted in a compulsory election.

Again, if we should reverse the grant of a new trial and reestablish the verdict, it could be set up as a bar to a further prosecution of the case even upon the second count. City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); Western & Atlantic R. Co. v. Burnham, 123 Ga. 28 (1) (50 S. E. 984); Southern Ry. Co. v. Clay, 130 Ga. 563 (1) (61 S. E. 226).. “There can be but one cause of action for the homicide of any one man.” Harris v. Central Railroad, 78 Ga. 525 (1), 531 (3 S. E. 355). We might give direction, of course, that the judgment of reversal on the main bill of exceptions should not have the effect of an adjudication against the plaintiff’s right to proceed upon the first -count. From what has -been said, ■ however, she should not be- debarred from proceeding upon the second count at the next trial,- and if we reversed the grant with the proviso that our judgment should be no adjudication whatsoever as to- her right to- make out her case if she could, under either count, our judgment would be absolutely meaningless and futile. As was said in Citizens Bank v. Rudisill, 4 Ga. App. 37 (60 S. E. 818), there are cases where the first grant of a new trial will not be disturbed “even-though the evidence demands the verdict rendered; for instance, where there have been erroneous rulings upon the pleadings or the evidence which may have prevented the losing party from getting his full case before the jury.” (Italics ours.) It would be vain to restore the verdict by a judgment upon the main bill of • exceptions if we instantly set it aside by a judgment upon the cross-bill.

We conclude that nó judgment whatsoever can properly be rendered upon the main bill, and therefore that it should be dismissed.

“Where the trial judge-renders a judgment granting a new trial based upon a single ground in the motion, and the respondent brings a bill of exceptions, and the defendant in error brings a cross-bill of exceptions, the assignments of error in the cross-bill relating to questions which will probably arise on another hearing will be decided.” Brookman v. Rennolds, 148 Ga. 721 (1) (98 S. E. 543).

In the motion for a new trial' one of the grounds, tó the overruling of which exception is taken in the cross-bill, assigned error upon an excerpt from the charge of the court by which the jury were instructed in effect that -i-f the plaintiff, by the exercise of ordinary care, could have avoided the -injury, the defendant would not be liable. If, as the petition alleges, the engineer actually saw the decedent upon the ■ railway track and wilfully and wantonly ran the engine over him, it would constitute no defense that the plaintiff might have avoided 'the injury by ordinary care.

■ -“While' under the law of - the code it is the general rule that a péráon can not recover,; despite the negligence of the railway compány, df ' by "the exercise of-'ordinary-care on his part the consequences' of-thb' company’s hégligeh'éé"eoiild-have been avoided. still this rule does not have application where the negligence on the part of the company is adjudged to have been wanton and wilful.” Tice v. Central of Georgia Ry. Co., 25 Ga. App. 346 (3 e) (103 S. E. 262), and cases cited. See also Lowe v. Payne, 156 Ga. 312 (118 S. E. 924).

It will be remembered that the case was tried only upon the second count, in which the killing was alleged to have been wilful and wanton.

The second special ground of the motion for a new trial which the court overruled assigns error upon the following charge of the court: “I charge you that the burden of proof in this case rests upon the plaintiff, that is the burden of proof is upon the plaintiff to satisfy the minds of the jury by the preponderance of the testimony of all the material allegations set out in the original petition in this case and the amendments that have been made and allowed by the court in the trial of this case.” One of the complaints against this excerpt is that it deprived the plaintiff of the benefit of the presumption arising in proper cases under section 3780 of the Civil Code.

It has been held that in a suit for damages against a railway company, for injury caused by the defendant’s negligence, it is error to instruct the jury that the burden is upon the plaintiff to prove the allegation of negligence, since a prima facie case is made by proof that the injury was caused by the running of the defendant’s train, or by its employees, as alleged, although an error in so instructing the jury may not always be ground for a new trial. Murphy v. Georgia Ry. & Power Co., 146 Ga. 297 (1) (91 S. E. 108), and authorities cited. The question raised here is whether the same rule should be applicable in a case where the injury is alleged to have been wilful and wanton; in other words, does the presumption apply in the latter case as well as in a case of mere negligence ? Whether the presumption will arise in any case will depend upon the plaintiff’s establishing such facts as will show that the defendant owed to the person injured some duty. Holland v. Sparks, 91 Ga. 753 (18 S. E. 990). As to a trespasser on the track of a railroad company, it is the general rule that the company’s agents owe him no duty until his presence upon the track becomes known to them, but where circumstances exist from which they are bound to anticipate that a person may be upon the track at a certain place, they are under a duty to take precautions for his safety. Western & Atlantic R. Co. v. Davis, 21 Ga. App. 461 (3) (94 S. E. 660); Chattanooga Ry. & Light Co. v. Wallace, 23 Ga. App. 554 (1) (99 S. E. 57). Where the plaintiff once establishes such duty upon the part of the railway company, he will then be entitled to the benefit of the presumption, even though it is alleged that the injury was wilfully and wantonly inflicted. See Tice v. Central of Georgia Ry. Co., 25 Ga. App. 346 (1 f) (103 S. E. 262). Otherwise not.

In Georgia Ry. & Power Co. v. Turner, 33 Ga. App. 101 (3) (125 S. E. 598), a ease in which the plaintiff sought damages for his wrongful ejection from a street-car and in which no negligence of the company was involved, this court held: “Where in such

a case the evidence authorized the. inference that the plaintiff was a passenger, and had not forfeited any of his rights as such, but was nevertheless ejected by the defendant carrier’s conductor, the trial court committed no error in giving in charge the principle contained in the Civil Code (1910), § 2780, with respect to the presumption which arises against a railroad company under certain circumstances. This section, where the facts otherwise so justify, may be given in charge not only where the action is founded upon negligence, but also where it is founded upon ‘misconduct’ on the part of the carrier’s servants. Compare § 2779. See, also, Savannah &c. Ry. Co. v. Godkin, 104 Ga. 655 (2) (30 S. E. 378, 69 Am. St. Rep. 187); Georgia Railroad v. Homer, 73 Ga. 251 (6); Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (3) (82 S. E. 299); Central &c. Ry. Co. v. Cannon, 106 Ga. 828 (1) (32 S. E. 874).” In addition see Smith v. Savannah &c. Ry. Co., 100 Ga. 96 (27 S. E. 725); Kendrick v. Seaboard Air-Line Ry., 121 Ga. 775 (49 S. E. 762).

In the Turner case, supra, the plaintiff established his injury by the company’s conductor and facts which would have authorized the jury to find that the defendant owed him that care which a carrier owes to a passenger. He was then entitled to an instruction that the presumption was against the company, although the petition alleged no negligence, but complained merely of “misconduct.”

In Lanier v. Bugg, 32 Ga. App. 294 (2) (123 S. E. 145), in which it was said, “No presumption of wilfulness or wantonness can arise against the company under the Civil Code, § 2780,” the plaintiff failed altogether to show that the railway company owed 'to the person -killed any duty whatever other than that which every man owes to another not to injure him wilfully and wantonly.

We think each of the excerpts complained of was error, but whether they were prejudicial or material under the record of the particular case need not be decided, since a new trial- results under our ruling in the first division. We deem it sufficient to lay down what we think are the correct principles for the guidance of the court below upon the next trial, according to the issues as they may then develop.

A further assignment of error in the motion for new trial is too general to present any question for decision.

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

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


text:
    15911.
    McClain v. Seaboard Air-Line Railway Company.
   Bell, J.

In this action by a servant against his master, in two counts, one of which was under the Federal employer’s liability act, the petition alleged: that the plaintiff was employed as a pipe-fitter’s apprentice, with the duty of assisting pipe-fitters in the removal of pipes from locomotives when the locomotives were to be repaired; that acting under the order of his foreman, he undertook to remove a “union” from the branch pipe of a certain locomotive by striking it with a chisel and hammer furnished him by the foreman for that purpose, and that upon striking the chisel with the hammer a piece of iron “chipped or peeled” from the union and flew into the left eye of the plaintiff, completely destroying the sight thereof; that the union “was defective, and that the same was not sound, nor was it fitted for said work; the same was too soft, which made it brittle, fragile, and unsuitable for such work, and, when struck with a hammer and chisel in an ordinary manner, would ■ crumble and shell or peel off;” that the plaintiff did not know of the defects and could not have discovered the same by ordinary care, but that the defendant master “knew that said union was not sound, and was defective, and unfitted for said work; and that defendant well knew that said union was insufficiently tempered, which made it brittle, fragile, and unsuitable for such- work, or in the exercise of ordinary care should have known the same.” Held:

1. The allegation that the plaintiff was directed by “his foreman” to remove the union in the manner alleged is insufficient, without more, to show that the person described as his foreman was a vice-principal, or the alter ego, of the company. Moseley v. Schofield’s Sons Co., 123 Ga. 197 (2) (51 S. E. 309); Bowden v. Virginia-Carolina Chemical Co., 28 Ga. App. 402 (2) (111 S. E. 210), and cases cited.

Decided May 19, 1925.

Rehearing denied September 16, 1925.

Action for damages; from city court of Atlanta—Judge Ueid. September 6, 1924.

Application for certiorari was denied by the Supreme Court.

Thomas J. Lewis, for plaintiff.

Liandolphj Parker & Fortson, for defendant.

2. The petition, when construed most strongly against the pleader, fails to allege that the union was defective or unsuitable as an adjunct of the pipe, for which use it was originally intended, and merely avers that because of the character of the material it would “crumble and shell or peel off” when struck in an ordinary manner with a hammer and chisel, and that the defendant ought to have known thereof, the allegations amounting to a charge of' implied notice only. Thomas v. Georgia Granite Co., 140 Ga. 459 (79 S. E. 130).

3. “Ordinary diligence requires a master to furnish to his servant appliances reasonably suited for the uses intended. But the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually or unexpectedly applied. If one is not chargeable with negligence because an appliance fails to serve a purpose not intended, neither is he chargeable with negligence because he has omitted to inspect so as to discover that it was not suited for such unexpected and unintended use.” Babcock Brothers Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438).

4. It not being alleged that the union was unsuitable for the purpose for which it was originally intended as an adjunct of the pipe and it not appearing that the defendant master knew that it would reasonably be struck in the manner alleged, or at all, in order to remove it, the foreman, so far as appears being only a fellow servant, it is not ¡shown that the defendant was under a duty to know that the union would be put to such use. Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79 (58 S. E. 289). In such a case, where it is sought to hold the master liable as for negligence in failing to know, or to warn of, the alleged defect, a charge of implied notice is not sufficient; otherwise where preliminary facts raising the duty of knowledge have . been set forth. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (2 a) (116 S. E. 57), and cases cited.

<5. The petition failed to show any negligence by the defendant, and the general demurrer thereto was properly sustained.

Judgment affirmed.

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