text:
    17623.
    Baggs-Langford Motor Co. v. Moore & Son.
    Appeal and Error, 4 C. J. p. 843, n. 65; p. 844, n. 66.
    Bills and Notes, 8 G. J. p. 916, n. 10; p. 963, n. 67; p. 1004, n. 89; p. 1006, n. 5; p. 1060, n. 33; p. 1088, n. 75.
    Courts, 15 C. J. p. 987, n. 61.
    Evidence, 22 C. J. p. 1214, n. 61; p. 1255, n. 54.
   Bell, J.

1. Under the act creating the municipal court of Atlanta, a deputy clerk of that court has authority to take an affidavit for, and to issue, an attachment returnable to a superior court. Ga. L. 1913, p. 159, §§ 27, 28; Barnard v. DuPree, 149 Ga. 796 (102 S. E. 422); Brach v. Oglesby Grocery Co., 33 Ga. App. 481 (2) (127 S. E. 157). The court therefore erred in this ease in dismissing the attachment.

2. Although it is no defense to a suit on an unconditional promissory note to show a contemporaneous oral agreement that the note would never be enforced (Pulliam v. Merchants & Miners Bank, 33 Ga. App. 68, 125 S. E. 509), proof of such an agreement will not invalidate the defense of want of consideration, and evidence thereof should not be excluded upon the ground that it is contradictory of the writing .if it at the same time tends to support a plea that the instrument is a nude pact. First National Bank of Dalton v. Black, 108 Ga. 538 (34 S. E. 143); Orr v. Dawson Telephone Co., 35 Ga. App. 560 (2) (123 S. E. 924).

(a) The plea in the present case, as against a general demurrer, sufficiently alleged that the note was without consideration. The court did not err in overruling such demurrer, nor in the admission of the evidence in support of the plea to which objection was made. See Mackin v. Blalock, 133 Ga. 550 (2) (66 S. E. 265, 134 Am. St. R. 220); Knight Co. v. Calhoun, 33 Ga. App. 312 (2) (125 S. E. 790).

3. “The payee of a promissory note, in possession of the same, is presumed to own it, although his endorsement thereon, in full or in blank, may stand uncancelled. He may sue upon such note, and his title to the same can not be inquired into, unless it be necessary for the protection of the defendant or to let in the defense which he seeks to make.” Bomar v. Equitable Mortgage Co., 111 Ga. 143 (36 S. E. 601). Furthermore, in this case the defendants in their answer admitted the plaintiff’s ownership of the note and' its right to sue thereon. It appearing in the plaintiff’s motion for a new trial that counsel for the defendant nevertheless “argued to the jury that because the indorsement of the plaintiff appeared on the back of the note sued on, plaintiff should not recover,” it was error to refuse to charge the jury, on timely written request, that since the plea admitted that the plaintiff “is the legal holder of the note sued on,” the plaintiff “has the right to proceed with its suit on the note, . . . and to recover in its own name whatever amount, if any, [the jury] may find against the defendants in this ease.” Elberton &c. R. Co. v. Thornton, 32 Ga. App. 259 (4) (122 S. E. 795).

Decided May 12, 1927.

Attachment; from Lumpkin superior court — Judge J. B. Jones. July 3, 1926.

Frank Carter, Johnson & Adderholt, for plaintiff in error.

O. J. Lilly, contra.

4. This court can not hold as a matter of law that the defendant’s testimony was absolutely incredible, nor therefore that the verdict in his favor was unsupported. But, because of the errors pointed out above, the judgment should be reversed and the ease remanded for another trial; although since the jury found a general verdict in favor of the defendant, the error in dismissing the attachment would perhaps have been harmless if no other error appeared.

Judgment reversed,.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    17666.
    WELLS et al. v. HARTFORD FIRE INSURANCE COMPANY.
    1. Where, after receiving an application for a policy of insurance, the company delayed acceptance for a long period and then tendered a policy different from that contemplated by the application, but where the applicant accepted the policy and, after discovery that it was not the kind ordered, made no offer to return it, but retained it, and several months later, when he was sued on a note for premiums, contended that the company had breached the policy by an alleged wrongful declaration that it was suspended for nonpayment of premiums, the insured will be held to have waived the delay of the company in accepting the application and also the nonconformity of the policy with that applied for.
    2. “Where a policy of insurance is delivered and a premium-note taken, payable in installments, and stipulating that ‘in case any one of the installments herein named shall not be paid at maturity, . . this policy shall lapse until payment is made,’ letters from the company to the insured, calling his attention to a past-due installment and advising him that the policy stands suspended during the period of the delinquency, and that it can be reinstated only through the payment of the overdue installment, will be construed as the company’s interpretation of the legal effect of the stipulation in the note, and not as a declaration of intention on its part to declare the contract rescinded.” Some Ins. Go. v. Swcmn, 34 Ga. App. 19 (3) (128 S. E. 70).
    (a) Furthermore, where a note for premiums on an insurance policy and the policy itself each provided, in effect, that the insurance should be suspended during the period in which any overdue installment of the note was unpaid and where the insured was in default as to one of the installments, the act of the company in writing a letter to the insured declaring the policy “suspended” during the period of such default was not improper, and lienee constituted no tender of a breach of the contract, even assuming that such act would have been sufficient to amount to such tender, if it had been wrongful as misstating the effect of the contract. Such letter was in accordance with the plain terms of the agreement' and afforded no cause of complaint to the insured.

      Eire Insurance, 26 O. J. p. 55, n. 26 New.
    Insurance, 32 C. J. p. 1303, n. 23 New.
    New Trial, 29 Oye. p. 833, n. 61.

      (6) This was a suit on a note for the second and subsequent annual premiums on a five-year policy of fire insurance. The defendant filed a plea of failure of consideration and also sought to recover an alleged unearned portion of the first annual premium which was paid in cash at the delivery of the policy. Under the above rulings, the evidence demanded the verdict which the court directed in favor of the plaintiff, no error was committed during the trial, and the court properly refused a new trial.
    Decided May 12, 1927.
    Complaint; from Lincoln superior court — Judge W. L. Hodges presiding. August 28, 1926.

      Clement E. Sutton, for plaintiff in error.

      Burnside & McWhorter, contra.
   Bell, J.

This was an action by the Hartford Fire Insurance Company, filed on July 3, 1923, against J. F. Wells and his wife, Lula Mae Wells, upon a promissory note for $154.96, payable as follows: $38.74 on the- first day of May in each of the years 1922 'to 1925 inclusive. The note was executed to cover the premiums for the second, third, fourth, and fifth years of two policies of fire insurance on property belonging to the defendants, the premium for the first year having been paid on delivery of the policies. The note contained a provision that if any one of the installments was not paid at maturity, “the whole amount of installments” then “remaining due on said policy may be declared earned, due- and payable;” and the petition alleged that the defendants had made default in the first installment and that the plaintiff had declared the whole debt due and collectible. The defendant pleaded failure of consideration, based upon an alleged breach of the contracts on the part of the insurance company. After a directed verdict in favor of the plaintiff, the defendants brought the case here on exceptions to the overruling of their motion for a new trial, which contained the usual general grounds and also assigned error on the direction of the verdict and on the exclusion by the court of certain evidence.

As appears from the evidence, the insurance was applied for on or about April 21, 1921. The application was in writing, signed by both defendants, and contained the following stipulations: “The foregoing is my own agreement and statement and is a correct description of the property on which indemnity is asked, and I hereby agree that insurance shall be predicated on such statement, agreement, and description, if this application is approved. . . This company shall not be bound by any act or statement made by or to any agent or other person which is not contained in this application. . . The use of any gasoline engine on the premises is prohibited unless the written consent of the company be obtained and attached to any policy which may be issued under this application.” The policies were daled November 14, 1921, and the evidence authorized the inference that the application was not accepted or acted upon previously. On December 29, 1921, the policies were delivered to the defendants’ agent, who in-their behalf paid the first year’s premium in cash, each of the policies purporting to insure the property from April 21, 1921. The note began with the statement that “The company is authorized to insert in this note the number and date of the policy,” and, as ultimately filled up, contained a recital that it was executed “For value received, in Policy No. F. I. 5324 dated the 21st day of April, 1921, issued by The Hartford Fire Insurance Company, Hartford, Conn.” It also stipulated that in case of default in the payment at maturity of any installment the company “shall not be liable for loss during such default and the said policy shall lapse until payment is made” to the company at its office in Atlanta. Each of the policies contained a similar stipulation referring expressly to the particular note.

The note did not show upon its' face the date of its execution, but it seems to have been delivered to the company along with the application for the policies.

The defendants having, on May 1, 1922, defaulted in the payment of the first installment of the note, which, as already stated, was for the second annual premium, the company on June 1, 1922, wrote to the defendants a letter demanding payment and saying that “under rule of company your insurance was suspended [on May 1] due to nonpayment of premiums.” On July 1, 1922, the company wrote to the defendants a letter which contained, among others, the following statement: “While it is true that our policies are suspended during the period of delinquency, the whole amount of the note has matured and by their terms became legally collectible. It is therefore for your best interest to pay now, thereby discharging a just obligation and at the same time reviving your policies as of date of such payment at this office and securing the protection they afford and which we believe you desire and need.” The defendants contend that the insurance was not effective until the acceptance of the application, and that it was improper on the part of the company to include the clause which purported to make the policies effective from April 21, 1921, a date which materially preceded the acceptance 'of the application, and that by this act and by the further act of inserting such date in the note as the date of the policies, the company was seeking to collect an amount “not due on said policies of insurance as issued, and that said note was back dated without defendants’ knowledge or consent, and that the same was and is a fraud on said defendants, and said note had no consideration therefore for such time.”

It is a further contention of the defendants that since the policies were not effective until within less than a year prior to May 1, 1922, and that since the first premium was paid for a full year, the first installment of the note did not mature until the expiration of that period, notwithstanding the maturity date as specified in. the note, — especially since the defendants did not know that the note and the policies were “backdated,” until they received the company’s letter of June 1, demanding payment of 'the first installment of the note and advising that the policies were suspended for nonpayment thereof.

The defendants-further insist that since they were not in fact in default, the company had no right to declare the policies suspended, as in the letters of June 1 and July 1, 1922, referred to above, and that the writing of these letters amounted to a violation of the provisions of the policies, in that the company thus withdrew the insurance to which the defendants were entitled for the period of one year from the effective date of the policies, which period did not expire until after June 1, 1922, the date of the first letter declaring the insurance suspended.

The defendants sought to show that on the receipt of the letters,. which they insist amounted to a breach of the contracts of insuranee, they elected to accept the breach, acted- upon it, and procured insurance in another company, as they were obliged to do in order .to prevent the acceleration of a loan which had been made to them upon the property by another party who required them to keep insurance on the same. The court rejected the evidence offered for the purpose of showing the procuring of such other insurance, and this ruling is assigned as error, but in our view of the case we may deal with it as though this evidence had been admitted.

Upon the theory of defense thus presented, the defendants sought to recover the alleged unearned portion of the premium for the first year, being the pro rata thereof which would have covered the period from the alleged breach of the contracts until the expiration of one year from the effective date thereof, and claimed upon the same theory that the consideration for the note had entirely failed.

It does not appear that the defendants ever offered to return the policies or to restore the status after the discovery that the policies were “backdated.” On the contrary, even after the discovery of this fact they continued to treat the policies as valid, subsisting contracts, claiming that they had been breached by the company. They pleaded and now insist that they rescinded the contracts, not because of any fraud on the part of the company, but solely on account of the fact that the company declared the insurance suspended when it was not entitled to do so, and thus itself committed a breach which the defendants accepted. In these circumstances the defendants will be held to have waived any objections which they might otherwise have made to the form or character of the policies, or to the delay of the company in accepting the application. Timmerman v. Stanley, 123 Ga. 850 (2) (51 S. E. 760, 1 L. R. A. (N. S.) 379); Jones v. Gilbert, 93 Ga. 604 (20 S. E. 48); Leigh v. Brown, 99 Ga. 258 (25 S. E. 621); Johnson v. White, 120 Ga. 1010 (48 S. E. 426); Caldwell v. Campbell, 4 Ga. App. 326 (61 S. E. 290). And see further, in this connection, Bostwick v. Mut. Life Ins. Co., 116 Wis. 392 (67 L. R. A. 705, 89 N. W. 538, 92 N. W. 246); Summers v. Alexander, 30 Okla. 198 (120 Pac. 601, 38 L. R. A. (N. S.) 787); Evans v. Central Life Ins. Co., 87 Kan. 641 (125 Pac. 86, 41 L. R. A. (N. S.) 1130).

If the company's letters of June 1 and July 1, referred to in the above statement, amounted to a breach of the contracts of insurance, it seems that the defendants, on accepting such breach, would have been entitled to recover the unearned portion of the first year's premium which they had paid, and also to have a verdict in their, favor on the plea of failure of consideration of the note. But the question of whether the act of the company in writing these letters amounted to such breach is controlled adversely to the defendants by the decision of this court in Home Ins. Co. v. Swann, 34 Ga. App. 19 (3) (128 S. E. 70). In that case it was held: “Where a policy of insurance is delivered and a premium note taken, payable in installments, and stipulating that in case any one of the installments herein named shall not be paid at maturity, . . this policy shall lapse until payment is made,' letters from the company to the insured, calling his attention to a past-due installment and advising him that the policy stands suspended during the period of delinquency, and that it can be reinstated only through the paymenjj of the overdue installment, will be construed as the company’s interpretation of the legal effect of the stipulation in the note, and not as a declaration of an intention on its part to declare the contract of insurance rescinded. That part of the plea which sets up no defense other than that the plaintiff had rescinded the contract of insurance by writing such letters should have been stricken on general demurrer.” Furthermore, the note and the policies here all stipulated that in case of default in the prompt payment at maturity of any installment of the note, the company should not be liable for loss during such default. Assuming that the policies were not effective even until their delivery on December 29, 1921, and that the premium then paid should ordinarily have kept the policies in force until December 29, 1922, the insurance afforded thereby was nevertheless suspended as a result of the failure of the defendants to pay the installment which by the terms of the note matured on May 1st of that year. This installment, it is true, was to cover the premium during the second year of the life of the policies, but it was permissible for the parties to contract that this premium should be paid in advance, even as far in advance as from May 1 to December 29. Compare Mut. Life Ins. Co. v. Stegall, 1 Ga. App. 611 (58 S. E. 79). Since the note and the policies each provided in effect’ that the insurance would be suspended during the period in which any overdue installment of the note was unpaid, and since the defendants were in default, the act of the company in writing the letters declaring the policies suspended “during the period of delinquency” was not improper or wrongful, but was in accordance with the plain terms of the agreement. Darsey v. Ins. Co. of N. America, 32 Ga. App. 458 (123 S. E. 622), and cit. The fact that the first year for' which the premium was paid may not have expired until long after May 1, 1922, would not alone operate to extend the maturity date of the first installment beyond that expressly stipulated in the note as the date of maturity. The company was therefore within its rights in declaring that the policies were suspended; and, this being true, such declaration by it did not amount to a breach of the contracts. It follows that the defendants were not entitled to recover back any portion of the first year’s premium, nor to defeat the collection of the note upon that ground. Under the authority to fill in the blanks, it was contemplated that the company would insert not merely the date from which the policies by their terms were declared to be effective, but rather the date on which the policies purported to have been issued, which was November 14, 1921. So it appears that there was a deviation from the authority to write into the note the date of the policies; and in the first division we do not go so far as to hold that this fact pertaining to the note was waived by those acts of the defendants' which constituted implied waivers with respect to the policies. But whether such fact might have afforded any sort of defense under any circumstances, it clearly could not form the basis of a plea of failure of consideration; and no other defense was made.

It is unnecessary to determine when the policies became effective, but upon that question see Firemans Fund Ins. Co. v. Rogers, 108 Ga. 191 (33 S. E. 954); Metropolitan Life Ins. Co. v. Thompson, 20 Ga. App. 706 (93 S. E. 299). This case is distinguishable on its facts from Home Ins. Co. v. Head, ante, 779.

Under the above rulings, the verdict in favor of the plaintiff was demanded by the evidence, and the court did not err in giving direction accordingly. There was no merit in any of the special grounds of the motion for a new trial. The court did not err in overruling the motion.

Judgment affirmed.

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


author: Bull, J.

text:
    17685.
    NEAL v. MEDLIN.
    In an action for a breach of warranty of title to land, where it appears that the plaintiff, without actually surrendering possession, obtained a quitclaim deed from the holder of the adverse claim, and seeks to recover only certain special damages, such as an amount paid to an attorney at law for his services in procuring the quitclaim deed and certain profits which the plaintiff lost but would have made in reselling the property if the title had been good, held, that the damages sued for are not recoverable, and the suit is not maintainable for the recovery of nominal damages.
    Oovenants, 15 O. J. p. 1318, n. 78; p. 1324, n. 37 New; p. 1333, n. 81; p. 1334, n. 6.
    Damages, 17 C. J. p. 720, n. 51 New;' p. 742, n. 84; p. 743, n. 85.
    Decided May 12, 1927.
    Action for breach, of warranty; from Chattooga superior court— Judge Maddox. September 4, 1926.

      A. L. Henson, for plaintiff.

      B. B. Neal, Denny & Wright, for defendant.
   Bull, J.

This was an action by the grantee against the grantor for a breach of warranty in the sale of an undivided third interest in certain land in Gordon county. The case is here upon exceptions to the dismissal of the petition on general demurrer. The following facts were alleged in the petition: After the plaintiff entered into possession of the land, she and her co-owners received a bona fide offer from other persons to purchase the same at a price of $4,989, but when the offerers examined the title they found that the defendant at the time of conveying to the plaintiff held title to only an undivided fourth interest in the land, and that the plaintiff’s title therefore was good only as to this interest; whereupon the offer was withdrawn. The defect in the title was because of an outstanding paramount title to an undivided fourth interest in one Hamrick. The plaintiff incurred an expense of $100 in obtaining a quitclaim deed from Hamrick, this sum being paid to J. G. B. Erwin for his services as an attorney in procuring the deed. The petition alleged that the plaintiff paid to “said adverse claimant a sum named in the quitclaim deed;” but there was nothing to show the amount of such payment. The plaintiff prayed to recover as her damages the item of $100 paid to her attorney, and also one third of the difference between $4,989, the amount of the offer that was,withdrawn, and $2,200, the proceeds of the actual sale which she subsequently made to others at the best price then obtainable.

The plaintiff can not recover for the alleged loss of profits under the allegations made. Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated when the contract was made as the probable result of its breach. Civil Code (1910), § 4395. This is substantially the rule as enunciated at common law in the famous old English case of Hadley v. Baxendale, 9 Exch. 341. With reference to a breach of warranty of title to land, the code provides that “the damages should be the purchase-money with interest thereon from the time of the sale.” Civil Code (1910), § 4400. See further, in this connection, Sanderlin v. Willis, 94 Ga. 171 (3) (21 S. E. 291); Orr v. Farmers Warehouse Co., 97 Ga. 241 (4) (22 S. E. 937). But this is not the measure in the present case, because the land was not lost. If' the plaintiff had “fairly and reasonably paid a sum of money to remove an encumbrance” or other defect, this sum would have been recoverable. Amos v. Cosby, 74 Ga. 793 (1); Martin v. Hamlet, 159 Ga. 465 (126 S. E. 371). But there is nothing to show what sum the plaintiff paid for the outstanding interest, and, furthermore, there is no claim of damage on that account. The Supreme Court has held that,as a general rule attorney’s fees are not recoverable in an action for a breach of warranty. Taylor v. Allen, 131 Ga. 416 (4) (62 S. E. 291). No reason for an exception to this rule appears in the present case.

The plaintiff is seeking to recover special damages only, and is not entitled to recover any of the damages sued for. In such a case, a cause of action is not stated. The plaintiff claims that she is entitled at least to nominal damages, but “the rule that in every case of breach of contract the other party has the right to recover nominal damages does not apply where only special . . damages are sued for, and where such damages are not recoverable.” Hadden v. Southern Messenger Service, 135 Ga. 372 (3) (69 S. E. 480). “Where the petition can not be construed as asking for general or nominal damages, but is expressly limited to a prayer for special damages only, and these are not recoverable, the suit' is not maintainable, and is subject to be dismissed on demurrer. Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728 (72 S. E. 179).” Truitt v. Rust Sales Co., 25 Ga. App. 62 (2) (102 S. E. 645). See also Christophulos Café Co. v. Phillips, 4 Ga. App. 819 (62 S. E. 562). The court properly sustained the demurrer and dismissed the petition.

From what has been said, it has been unnecessary to set forth or to consider the allegations made for the purpose of showing ouster or an equivalent disturbance. The petition may or may not have been sufficient in that respect. If not, the court properly struck it for that reason also. But our decision is confined to the propositions stated above, other points being assumed in favor of the plaintiff in error.

Judgment affirmed.

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


text:
    17688.
    Callaway, assignee, v. Perkins.
    Arbitration and Award, 5 O. J. p. 171, n. 77; p. 187, n. 27.
    New Trial, 29 Cye. p. 833, n. 61; p. 1007, n. 41.
   Bell, J.

1. Where an owner of cotton deposited it with another as bailee and procured advances thereon, and thereafter a controversy arose between the bailor and an assignee of the bailee as to whether the cotton, as contended by the bailor, was or should have been purchased by the bailee for a certain amount which the bailor was entitled to have credited on the amount of the advances, or whether, as contended by the assignee, the bailor was indebted to him as such assignee in a named sum upon the payment of which he, the bailor, would be entitled to the return of the cotton, which, as insisted by the assignee, was still held under the original bailment, and where these matters were submitted to arbitrators for settlement as under a statutory award and they found and awarded that the bailor should pay to the assignee a certain sum of money and retain the cotton, the acceptance and retention of the cotton by the bailor estopped him from attacking the award either (1) upon the ground that, it was contrary to the evidence adduced before the arbitrators and without evidence to support it, or (2) upon the ground of misconduct or irregularity, as that the assignee or another for him “revealed” evidence to the arbitrators by “reviewing cotton” in the warehouse, when the bailor was absent but should have been called “to help point out said cotton in dispute,” the facts touching such alleged misconduct and irregularity having been known to the bailor at the time of his acceptance of the cotton in accordance with the award. Murray v. Hawkins, 144 Ga. 613 (4, 5), 622 (87 S. E. 1068); Harrell v. Terrell, 125 Ga. 379 (54 S. E. 116), and cit. Upon the trial of this case, which arose upon the filing of objections to such award, by the bailor upon the grounds above enumerated, the evidence having shown, without dispute, that the bailor accepted and sold the cotton, with full knowledge of all the facts touching the validity of the award, the verdict returned in favor of the assignee was demanded.

Decided May 12, 1927.

Arbitration; from Banks superior court — Judge Stark. August 28, 1926.

J. B. G. Logan, A. J. Griffin, Jere 8. Ayers, for plaintiff in error.

John L. Perkins, E. C. Stark, contra.

2. It was not cause for a new trial that the court may have refused to allow the bailor “to prove that the chose in action” was not the property of the assignee at the time of the trial; nor would it affect the verdict that the successful party may have transferred his rights under such verdict pending the motion for a new trial. Lamon v. Perry, 33 Ga. App. 248 (2) (125 S. E. 907); Brown v. West, 35 Ga. App. 444 (133 S. E. 304); Suwannee Turpentine Co. v. Baxter, 109 Ga. 597 (35 S. E. 142); Chicago Cheese Co. v. Smith, 94 Ga. 663 (20 S. E. 106).

3. In passing upon a motion for a new trial, the court should not consider matters which are neither set forth nor duly referred to in any ground of the motion. Shipley v. Eiswald, 54 Ga. 520; Crooker v. Hamilton, 3 Ga. App. 190, 191 (59 S. E. 722); and cases cited in dissenting opinion in Gresham v. Lee, 28 Ga. App. 576, 580 (112 S. E. 524). The court erred in this case in admitting in evidence, on the hearing of the motion for a new trial, certain documents on the admission of which error is assigned in the bill of exceptions.

4. The evidence having demanded the verdict as rendered in favor of the assignee, and there being no merit in any of the grounds of the motion for a new trial, the court erred in sustaining the motion.

Judgment reversed.

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


text:
    17718.
    CITY OF MACON v. JONES.
    Where, in a suit against a municipality for damage to the plaintiff’s automobile, alleged to have been caused by the city’s negligence in maintaining in the center of one of its streets, without barrier, lights, or other warning, “an iron manhole” which extended about twelve inches above the level of the street and which occasioned the damage as the automobile was driven over it, the petition averred that the driver of the automobile was in the exercise of ordinary care and diligence and had no previous knowledge of the manhole, and that the occurrence ■was in the. nighttime, and where there was no further allegation to show negligence or want of care on the payt of the driver, it should not be held as a matter of law that the driver was so negligent or so wanting in care as to bar the plaintiff’s right to recover.
    Decided May 12, 1927.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. September 25, 1926.
    Municipal Corporations, 28 Cyc. p. 1471, n. 81.

      Harry S. Strozier, for plaintiff in error.

      Jesse Harris, contra.
   Bell, J.

A. B. Jones sued the City of Macon for damage to his automobile, alleged to have been caused by the negligence of the city in failing to keep its streets in reasonably safe condition. The city demurred generally on the ground that the petition showed that the driver of the automobile was not in the exercise of ordinary care at the time and by the exercise of such care could have avoided the damage. The municipal court, in which the suit was brought, sustained the demurrer, a certiorari was sustained by the superior court, and the city excepted. The sole question for determination by this court is whether, as a matter of law, Jones, through the driver of the automobile, was guilty of such negligence as would preclude a recovery.

The petition alleged, among other things, that on the night of February 3, 1926, the plaintiff’s son, who was about twenty-one years of age, was driving the automobile along Fifth Avenue, a public street of the city, when “the said son of plaintiff, in the exercise of ordinary care and diligence, struck an iron manhole situated in the center of said street, causing damage to your petitioner’s machine in the following manner: destroying transmission housing, pocket shaft, universal joint, and counter sliding, rendering the said automobile useless till the same was repaired,” to the plaintiff’s damage in a sum stated. Plaintiff’s “said son was driving the said vehicle along said Fifth Avenue in the nighttime and struck said manhole, which extended about twelve inches above the level of the street, said manhole being unlighted, without barrier to warn or protect pedestrians or vehicles along said street, and which said manhole extended as high as twelve inches above the level of the street, the existence of which said manhole was unknown to the son of the petitioner, and the damage occurring to petitioner’s automobile was caused on account of the negligence of the city of Macon.” The petition further alleged that the plaintiff’s son was “free from fault, he having no knowledge of the faulty condition of said street;” and in one place in the petition the manhole is referred to as extending “over twelve inches above the level of the street.”

In sustaining the certiorari the trial judge said: “It may or may not be gross negligence as a matter of fact to drive an automobile over an obstruction extending twelve inches above the street curb. It can not be said as a matter of law that such an act would be grossly negligent or that it would necessarily be ordinary negligence. No one who was in the exercise of ordinary diligence would attempt to drive over an obstruction that was manifestly too high for the machine to clear. And yet there are obstructions some several inches high over which automobiles do drive in perfect safety. To say that it is not negligent to drive over a six-inch obstruction, but that it is negligence as a matter of law if the obstruction is 11-% or 11-% or 11-ii inches high is reducing to scientific exactness a question of fact which the law intended should be decided by twelve men after they have been made familiar with all the circumstances.

“When the evidence is examined it may appear that the attempt to drive over this particular obstruction at that particular time by the driver then in charge of the machine was rash and grossly 'negligent, and that the exercise of ordinary diligence would have avoided the injury. On the other hand, it might be shown that if the obstruction had been three eighths of an inch lower this particular machine would have cleared it, and that the driver misjudged the height of the obstruction by less than half an inch. Of course a mistake of judgment as to the height of the obstruction could not as a matter of law charge plaintiff with negligence, if under the circumstances a prudent man could reasonably think the machine would clear the obstruction.”

Unless the plaintiff’s action could be classed as rash or reckless, it is a question for the jury whether under the circumstances he was guilty of negligence amounting to a want of ordinary care. So long as the want of such care on the part of the driver in attempting to pass over the projecting manhole, under all the facts and circumstances then existing, is a question about which reasonable minds might differ, it is a question for the jury, and should not be set up as a bar in law against a recovery. Mitchell County v. Dixon, 20 Ga. App. 21 (5), 32 (92 S. E. 405). In Samples v. Atlanta, 95 Ga. 110, 113 (22 S. E. 135), the Supreme Court said: “There is greater or less danger attending the use of many public bridges and highways. Sometimes the danger is very slight indeed — so slight as to be of but little consequence. Again, the danger is somewhat greater, and more carefully to be guarded against by one who takes the proper care for his own safety; and still again, the danger may be so very great and apparent that the only proper way to shun it would be to avoid altogether coming within its reach. Between the extremes there is every conceivable degree and kind of danger. Where the danger is exceedingly small and trivial, it may not be at all negligent to disregard it; where it is exceedingly great and obvious, it would be negligence per se to incur the hazard of being injured by it. In other cases it would be open to question whether incurring such possible or probable hazard would be consistent with ordinary care; and in cases of this kind the question of contributory negligence is one .for determination by the jury.”

A case having some analogy to the present case and decided by the Supreme Court of the United States in the light of the principles here invoked was that of Mosheuvel v. District of Columbia, 191 U. S. 247 (24 Sup. Ct. 57, 48 L. ed. 170), in which the court said: “ One who, with knowledge of the situation, elects, in descending her steps .from her residence to the sidewalk, to cross over a projecting uncovered water box about four inches square, with its outer edge about four inches from a line drawn from the tread of the step nearest the sidewalk to the ground, instead of avoiding the box by stepping to one side, is not, as a matter of law, guilty of such contributory negligence as will defeat her action against the municipality to recover damages for the personal injuries sustained by reason of her failure to clear the box.” This expresses the same principle which the judge of the superior court had in mind in sustaining the certiorari in the case before us. Assuming that the driver actually saw the manhole in time to have avoided it, the case should nevertheless go to the jury, under all the attendant circumstances, for their determination of whether the plaintiff’s, son was totally lacking in that degree of care which an ordinarily prudent person would have observed under like circumstances, in supposing that the car would clear the manhole. In Central City Ice Works v. Macon, 92 Ga. 413 (17 S. E. 660), the driver of an ice wagon in the city of Macon saw freshly piled dirt on the street, but judged that it was packed firmly enough to allow him to pass over it. Instead, it was soft and gave way under the weight of the team. The court, on exceptions to a non-suit, held that “whether or not there was contributory negligence by the plaintiff’s servant in attempting, under all the circumstances, to drive over that part of the street” was an issue “for submission to the jury.”

The petition in the instant case alleges that the driver of the automobile was in the exercise of ordinary care. On general demurrer this statement should be taken as true, in the absence of other allegations disputing it. According to the averments, the driver had no previous knowledge of the manhole,., and the occurrence was in the nighttime. While, with nothing appearing to the contrary, we should assume that the automobile was duly equipped with “front lamps” and that they were “throwing strong white lights to a reasonable distance in the direction in which such vehicle” was approaching, in accordance with the legal requirements (Park’s Code Supp. 1922, § 828, uu-2), such artificial lights would not necessarily render the driver’s vision as to the particular object so clear and adequate as it might have been in the daytime. The lights and shadows might have been deceptive, and the nature and height of the object might not, to one in the exercise of due care, have been diseernable in time to avoid the damage. It does not appear how high above the ground the car was geared, and, as suggested by the learned trial judge, clearance might have been lacking only by the fraction of an inch. It is true that the petition in one place refers to the manhole as extending “over twelve” inches above the street level; but since the height is expressed in inches as the unit of measurement, we construe the petition to mean that while the height of the obstruction was over twelve inches, it was not as much as thirteen inches. It is to be remembered that in cases of this sort it is not necessary for the plaintiff to negative his own negligence or want of ordinary care. This is a matter for defense, and the petition in this respect will be good unless, by the pleaded facts, it affirmatively appears that the plaintiff should not recover. And furthermore, as was said in the Samples case, supra, “it must not be forgotten that under the rule of force in this State allowing partial recovery in cases of contributory negligence on the part of the plaintiff, it- is still more proper to enforce the doctrine we are endeavoring to establish.”

In our opinion, this court should not hold that the plaintiff is barred as a matter of law because of negligence or want of care on the part of the driver of the automobile on the occasion in question. See further, in this connection, Dempsey v. Rome, 94 Ga. 420 (20 S. E. 335); Harrell v. Macon, 1 Ga. App. 413 (58 S. E. 124); Mayor &c. of Americus v. Johnson, 2 Ga. App. 378 (2) (58 S. E. 518); MacDougald Construction Co. v. Mewborn, 34 Ga. App. 333 (129 S. E. 917); Wynne v. So. Bell Telephone Co., 159 Ga. 623 (126 S. E. 388); Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533); 28 Cyc. 1418, 1502, 1510.

This case is distinguishable from the case of Newberry v. Macon, 35 Ga. App. 252 (132 S. E. 917). There the plaintiff in the daytime drove his wagon into a hole in the street, sixteen inches deep, three feet wide, and ten feet long. The court held that the petition set forth no cause of action, “as it is apparent that he saw or should have seen such an obvious danger.” It was an obvious danger because the fundamental law of gravity would indicate the danger in driving a wagon into such a hole. There is no question but that the body of the wagon would be precipitated sharply when driven into the hole. Here there may have been grounds for a reasonable supposition of clearing the manhole without any damage. This, under the particular facts and circumstances, is a jury question, as is also the question of whether the driver should have discovered the danger in time to have avoided it. From what has been said, we think the present ease is distinguishable also from such cases as So. Ry. Co. v. Hogan, 131 Ga. 157 (62 S. E. 64); Kent v. So. Bell Telephone Co., 120 Ga. 980 (48 S. E. 399); Browning v. Cave Spring, 7 Ga. App. 724 (67 S. E. 1045); So. Ry. Co. v. Rowe, 2 Ga. App. 557 (3) (59 S. E. 462); McCart v. Jasper County, 18 Ga. App. 769 (90 S. E. 725); Leslie v. Macon, 35 Ga. App. 484 (133 S. E. 638); City of Columbus v. Griggs, 113 Ga. 597 (38 S. E. 953, 84 Am. St. 257); City of Rome v. Baker, 107 Ga. 347 (33 S. E. 406); Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (51 S. E. 438); Bridger v. Gresham, 111 Ga. 814 (35 S. E. 677); Barfield v. So. Ry. Co., 118 Ga. 256 (45 S. E. 282). In our opinion, the superior court correctly sustained the certiorari.

Judgment affirmed.

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


text:
    17615.
    ROME RAILWAY & LIGHT COMPANY v. McCARTHA & THOMAS.
    1. In this action against a street-railway company to recover for damage to the plaintiffs’ automobile, resulting from a collision between the automobile and one of the defench-'it’s street-cars, under the circumstances disclosed by the evidence, i can not be said as a matter- of law that the damage could have bi- i avoided by the exercise of ordinary care on the part of the plaintii- or their servant who was driving the automobile, nor even that there as any negligence attributable to them.
    2. It can not be said as a matter of Lav that under the facts stated in the charge requested by the defendant, the jury could not have found • the defendant negligent. Hence, the court did not err in refusing to give such charge.
    3. The point made in the second special ground of the motion for a new trial is plainly controlled by the decision of this court in Western é Atlantic Railroad v. Reed, 35 Ga. App. 538 (6) (134 S. E. 134).
    4. The verdict in favor of the plaintiff was authorized. There was no error in refusing a new trial.
    street Railroads, 33 Oye. p. 1477, n. 9; p. 1480, n. 20, 21; p. 1506, u. 83; p. 1508, n. 95; p. 1524, n. 81; p. 1544, n. 89; p. 1596, n. 94; p. 1609, n. 55; p. 1613, n. 79; p. 1615, n. 87; p. 1617, n. 97; p. 1622, n. 27.
    Trial, 38 Cye. p. 1707, n. 98.
    Decided May 12, 1927.
    Damages; from city court of Eloyd county — Judge Bale. July 6, 1926.

      L. A. Bean, Lamar Camp, for plaintiff in error.

      Porter & Met one, contra.
   Bell, J.

The plaintiffs as partners or joint owners sued the street-railway company for damages to the plaintiffs’ automobile, resulting from its collision with the defendant’s street-car. The jury returned a verdict in favor of the plaintiffs for $350, the full amount of the alleged damage, and the defendant excepted to the overruling of its motion for a new trial. The question for determination is whether under the evidence the verdict was authorized. The contention is that the evidence discloses as a matter of law that the driver of the automobile was guilty of negligence equal to or exceeding that of the defendant, and could have avoided the collision by ordinary care.

The theory of the plaintiffs’ case was that on an exceedingly dark and foggy morning about eight o’clock the defendant’s agent so negligently operated its street-car as to cause the injury complained of; that the car was being operated at the alleged dangerous speed of fifteen or twenty miles per hour, without lights, and without the sounding of any bell or gong or other warning of its approach, notwithstanding the fog was such that a street-car without lights could not be seen at a greater distance than ten or twelve feet. Mr. McCartha, one of the plaintiffs, testified that he was riding in the automobile on the occasion in question, and that it was being driven three or four feet from the outside track of the car-line, and was proceeding towards the city, of Kome at the rate of about six miles per hour, just behind a large express truck. His testimony was in part as follows: “We were on the right-hand side of the street-car track. We were about three or four feet from the street-car track, and this truck was in front of us, and all at once this truck turned off as quick as it could turn. I judge the truck was about two feet from the street-car track, and all at once it turned off quickly about ten feet in front of our coupé. The side of the street-car, when it is being run, extends out and over the rails about two feet, I judge. When the Southeastern Express Company’s truck pulled to the right and from out in front of us and off the track, the express truck at that time was not more than two or three feet from me at the time the truck stopped. When it pulled off the track in front of me and before, I knew nothing about a street-car coming, meeting me. I couldn’t tell because of the heavy fog, couldn’t see it; and then the truck in front of me obstructed my view also. Just as soon as the truck pulled off to the right there in front of me the street-car ran right into our car. The left front end of the streetcar struck the left side of our automobile. It tore it all to pieces. The fog was about as heavy as I have ever seen. We were coming along slowly, six to eight miles per hour, and this truck was eight or ten feet in front of us, and we could just see the express company’s truck, and we could not see beyond it, and we could not see the street-car. It was dark just like night. The electric lights were not on the street. I say that there were no electric lights because I did not see them. I heard no ringing of a bell, sounding of the gong, or anything to give any notice of the car’s approach. The first I knew of the approach of the street-car was when it hit us. The street-car must have been going fifteen or eighteen miles per hour, because we were practically stopped at the time we were hit. As the express truck turned off my negro turned in just the least bit, and then the street-car hit it. There was nothing that my driver could have done that he did not do before the street-car hit him.” There was other testimony by business men of Eome to the effect that this was the heaviest fog in the history of Eome.

Nathaniel Guidehigh, the plaintiff’s employee who was driving the automobile, testified:- “It was so foggy I couldn’t see, never saw a fog any heavier than that. I couldn’t hardly see an automobile or man or street-ear in front of me that didn’t have a light on it. The street-car hit me down there as I was coming back to Eome that morning in this coupé on Second Avenue. I was driving about a foot or foot and a half from the rail of the track before it hit me. At the time it hit me I was driving that close to it. My *coupé was hit on the left-hand side. The left front end of the street-ear hit me. . . The express wagon was in front of me just before the street-car hit me. As the street-car was approaching it had no lights at all on it. My automobile had lights on it at the time. The motorman on the street-car did not ring a bell or sound the gong or anything to give me notice of the approach. I was driving about six miles an hour at the time I was hit. I would say the street-ear was running something like twenty miles an hour when it hit me. . . The first thing I knew of the street car coming was when it hit me. I couldn’t see it because it had no lights on it and there was such a fog I could not see it. . . There was no time between when I first saw the street-car, after the truck in front of me had moved out of the way, until it hit my automobile. . . I would have missed if I had known the street-car was coming. I didn’t know it was coming on the street. I didn’t know what time it was going to run. I think I got in behind that express truck over there at the bridge and followed it aE the way from the bridge over the Oostanaula river right along. It was right in front, and it was foggy.”

The evidence introduced by the defendant was in some particulars contrary to the above, but that fact is, of course, immaterial in this court, since the jury were the final arbiters of the contradictions in the testimony. Taking into consideration the weather conditions and all the attendant circumstances, this court is unable to say, as a matter of law, that the finding in the plaintiff’s favor was contrary to law. The jury were fully, authorized to find that because of tbe heavy fog and the lack of lights or other warning, neither the driver nor Mr. McCartha was negligent in failing to apprehend the approach of the street-car. This is especially true since it is the duty of the motorman in running a street-railway car through a public street to notice the presence of travelers thereon, and “at all times to be watchful to see that the way is clear; and where he has reason to apprehend danger or should in the exercise of ordinary care become cognizant of danger, he should regulate the speed of his car so that it could be quickly stopped should the occasion require it.” Perry v. Macon Street R. Co., 101 Ga. 400, 410 (29 S. E. 304). The defendant had no exclusive right to use the streets, and it was certainly not wrongful that the automobile should be driven along the defendant’s tracks so long as the occupants of the automobile did not know and should not have known of the approach of the street-car. Collins v. Augusta-Aiken R. Corp., 13 Ga. App. 124 (78 S. E. 944); Dabbs v. Rome Ry. & Light Co., 8 Ga. App. 350 (69 S. E. 38). And it seems that the jury might very properly have inferred that in view of the fog and darkness the occupants of the automobile could have assumed that if a street-car should be approaching, its presence would be made known by a headlight or by some signal, by gong or the like, in ample time for travelers to clear the way. Furthermore, the view was obstructed by the large truck which was being driven immediately in front of the automobile. In Savannah Electric Co. v. Nance, 31 Ga. App. 632 (121 S. E. 690), on facts very similar to those now before us, and surely as hard against the plaintiff, this court declined “to say, as a matter of law, that the plaintiff must have been aware of the approach of the streetcar until just prior to the time when he was struck, as alleged in the petition.” See further, in this connection, Poole v. Central of Ga. Ry. Co., 23 Ga. App. 285 (97 S. E. 886); City of Macon v. Jones, 36 Ga. App. 799, and citations. The cases of Gainesville R. Co. v. Ham, 17 Ga. App. 500 (87 S. E. 715), and Athens Ry. & Electric Co. v. McKinney, 16 Ga. App. 741 (86 S. E. 83), relied on by the plaintiff in error, are materially different in their “facts from the present case.

Counsel for the plaintiff in error make the further contention in their brief that the verdict in favor of the plaintiffs for the full amount of the alleged damage is excessive, under the rule as to reducing the damage in accordance with default attributable to the plaintiff, since, as counsel insist, the jury as a matter of law co.uld not have found that the plaintiffs were entirely free from negligence even if they (the jury) were authorized to infer that the damage could not have been avoided by the exercise of' ordinary care. But, under all the circumstances disclosed by the evidence, we can not say as a matter of law that the plaintiffs should be charged with any negligence whatever proximately causing the damage. The court did not err in refusing to sustain the general grounds of the motion for a new trial.

The first special ground of the motion complains that the court refused the defendant’s request to charge the jury as follows: “If you find, from the evidence, that the driver of the plaintiff’s automobile was running the automobile on or in such proximity to the street-railway track as to be struck by an approaching street-car, and the conditions were such, because of the fog or because of the express truck that was in front of him, that he could not see the street-car far enough ahead in time to get off the track before the street-car would strike the automobile, and he also had notice or knew, or by the exercise of ordinary care could have known, that a street-car was liable to come meeting him, then he would be guilty of negligence in staying on or so near said track under such conditions, which negligence would be sufficient to preclude, a recovery in favor of the plaintiff in this cause.” It can not be said as a matter of law that under the facts stated in the charge requested by the defendant, the jury could not have found the defendant negligent. Hence, the court did not err in refusing the request. See Davis v. Whitcomb, 30 Ga. App. 497 (2, 4) (118 S. E. 488).

The point made in the second, and only other, special ground of the motion is controlled adversely to the plaintiff in error by the ruling of this court in Western & Atlantic Railroad v. Reed, 35 Ga. App. 538 (6) (134 S. E. 134).

It follows from what has been said that the court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    17758.
    DUMAS v. BARNESVILLE BANK.
    Where, on the trial of a claim case, it appeared that the property was levied on under a common-law execution and was found by the levying officer in the possession of the defendant in fi. fa., and that the claimant . was a son of the defendant in fi. fa. and his claim was predicated upon a bill of sale to the property,purporting to secure an indebtedness due to the claimant by the defendant in fi. fa., which bill of sale was executed after service of the suit upon the defendant in fi. fa. and only five days before the rendition of the judgment on which the fi. fa. was issued, and the only explanation of the transaction between the claimant and the defendant in fi. fa. was the testimony of the claimant’s mother, the wife of the defendant in fi. fa., to the effect that he, the claimant, loaned “some money” to his father, who “gave him this paper . . to secure him,” a verdict in favor of the plaintiff in fi. fa. was authorized.
    Executions, 23 O. J. p. 602-, n. 27; p. 603, n. 57.
    New Trial, 29 Cyc. p. 824, n. 41.
    Decided May 12, 1927.
    Claim; from Lamar superior court — Judge Persons. September 18, 1936.

      B. H. Manry, for plaintiff in error. Claude Christopher, contra.
   Bell, J.

This was a claim case which originated in a justice’s court and which was tried on appeal in the superior court. The jury found in favor of the plaintiff in fi. fa., and the claimant excepted to the overruling of his motion for a new trial, containing the usual general grounds only; The plaintiff in fi. fa. brought its action in the justice’s court against John Dumas on a promissory note, in which suit judgment was rendered for the plaintiff on April 4, 1934, the defendant, presumptively, having been served on or before March 34, 1934. The execution which was issued upon the judgment was levied upon two mules, the entry of levy showing that the property was found in the possession of the defendant in fi. fa. There was introduced in evidence in behalf of the claimant a bill of sale made by the defendant in fi. fa. to his son, Charlie Dumas, the claimant, covering the two mules in question. This bill of sale was executed on March 39, 1934, and purported to secure an indebtedness of $800 as evidenced by a note of even date, payable to the claimant and signed by the defendant in fi. fa. The only witness sworn was the claimant’s mother, the wife of'the defendant in fi. fa. She testified: “My son Charlie Dumas lives in Dayton, Ohio, and has been for the past three years. He loaned his father, John Dumas, some money and John Dumas gave him this paper (which was exhibited to the witness) to secure him. The mules levied upon in this fi. fa. are the same mules that are described in this paper. My son, Charlie Dumas, sent me this paper and instructed ine to file the claim to the mules for him after they were levied upon by the sheriff. I was sworn as a witness on the trial of this case in the justice court, and John Dumas was also sworn. Charlie Dumas has lived in Dayton since 1923. John Dumas bought the mules, and they have been in his possession all the time, but we all worked and paid for them. I did not know that John had been sued until the mules were levied upon by the sheriff.”

It being shown by the entry of levy that the defendant in fi. fa. was in possession of the property at the time of the levy, the bur-dent of proof rested upon the claimant, and in order to carry this burden it was necessary for him to show, among other things, that he acted in good faith in the transaction between him and the defendant in fi. fa.

On the trial of a claim case, where the issue is the-bona fides of a transfer of property by the defendant in execution to the claimant, and where there are circumstances which, if not satisfactorily explained, may be regarded as badges of fraud, the findings of the jury on such issue can not be disturbed by this court on the general grounds only. Here the sequence of events and the relations of the parties were sufficient “badges of fraud” to make a case for determination by the jury. The evidence authorized the verdict, and the court did not err in refusing a new trial. Parsons v. Smith, 119 Ga. 42 (2) (45 S. E. 697); Kelley v. Stovall, 138 Ga. 186 (75 S. E. 6); Smith v. Hinkle, 136 Ga. 809 (72 S. E. 345); Stephens v. So. Cotton Oil Co., 147 Ga. 410 (3) (94 S. E. 245); Salsbury v. McNure, 30 Ga. App. 81 (116 S. E. 666); Greene v. Matthews, 31 Ga. App. 265 (6) (120 S. E. 434); Patterson Co. v. Peoples Loan & Savings Co., 158 Ga. 503, 507 (123 S. E. 704).

Judgment affirmed.

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


text:
    17786.
    BROWN v. McCANN.
    In this action for slander, the evidence in behalf of the plaintiff did not affirmatively show that the' alleged slanderous statements were privileged; a prima facie case for the plaintiff was made out, and the court erred in granting a nonsuit.
    Libel and Slander, 36 O. J. p. 1167, n. 63; p. 1180, n. 2, 4; p. 1189, n. 66; p. 1231, n. 91; p. 1238, n. 80; p. 1241, n. 37; p. 1242, n. 43,. 45, 49; p. 1243, n. 65; 37 O. J. p. 46, n. 7; p. 69, n. 46; p. 90, n. 16, 24; p. 107, n. 4.
    Trial, 38 Oye. p. 1557, n. 21.
    Decided May 12, 1927.
    Action for damages; from city court of Jesup — Judge Thomas. October 29, 1926.

      James R. Thomas & Son, for plaintiff.

      Clark & Gibbs, for defendant.
   Bell, J.

Mrs. B. B. Brown brought an action for slander against X. Y. McCann in the city court of Jesup, alleging that the defendant, about March, 1925, injured her in her profession as a teacher in the public schools by making to members of the school board and other persons named a false report that she was afflicted with the contagious disease commonly known as tuberculosis. She alleged that as a result of such report she was summarily dismissed from the faculty of the Jesup public school, and was further damaged in that she was thereafter unable to obtain any other position as teacher. The defendant in his answer denied the making of any such statements, but set up no affirmative defense, as of privileged communication.

A. E. Knight, a member of the board of education of the school in which the plaintiff was teaching and in which a son of the defendant was a pupil, testified: that in April, 1925, the defendant came into his store and said to him: “Have you heard the report on Mrs. Brown?” stating that Dr. Colvin had told him that she had consumption, and asking the witness what the trustees “were going to do about it.” The witness replied that the matter would have to come before the board, and suggested that the defendant “appear before the board,” whereupon the defendant.said, “No, I have nothing to do with it. . . If she has tuberculosis I will take my boy out of school, as I do not want him exposed to it.” .On a different occasion, seemingly a little later, the defendant voluntarily made to Mr. and Mrs. Anderson; at their home in Adams Park, Georgia, the following statement: “A very unfortunate thing happened recently. Mrs. Brown’s doctor told me that she had tuberculosis, and asked me what I was going to do about it. . . I told the doctor I couldn’t do anything but stop my child, which I was going to do.” This is according to the evidence of Mrs. Anderson, who also testified: -“Mr. McCann said that he did all that he could when the doctor pronounced the disease tuberculosis, . . took' his child out of school. Further than taking his child out of school, he didn’t say that he was going to do anything.” Mrs. Anderson was a sister-in-law of the plaintiff, her brother being the plaintiff’s husband. The plaintiff testified that she had had no coughs and had not “suffered with anything except severe colds,” and that she was now, in October, 1926, in perfect health. The trial court granted a nonsuit, and the plaintiff excepted. •

Under the testimony submitted, the jury would have been authorized in finding that the defendant did in fact make the statements as charged, and, further, that these statements were false. This would make a prima facie case for the plaintiff, since the statements tended to show that the plaintiff was afflicted with a contagious disease and since also they related to the plaintiff’s profession and were calculated to injure her therein. Civil Code (1910), § 4433; Nicholson v. Dillard, 137 Ga. 225 (3) (73 S. E. 382); Flanders v. Daley, 124 Ga. 714 (52 S. E. 687. A false report of either character is actionable per se, unless the defendant comes forward and shows that it was privileged under the circumstances, this being a matter for defense. Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589 (5) (51 S. E. 646).

The fact that the defendant merely repeated the report of the doctor is no defense, since it is the law that “Talebearers are as bad as talemakers.” Ivester v. Coe, 33 Ga. App. 620 (6) (127 S. E. 790), and cit. Every repetition of a slander originated by a third person is a new publication of it.

Whether or not the publication was a privileged communication would depend upon the circumstances, including the intention with which it was published. “If in good faith, with the sole purpose of protecting the interest of the defendant, it would be; if maliciously, for the purpose of injuring the reputation of the plaintiff, it would not be. -In view of the allegations of the petition, the question of privilege is one which must be raised by plea and submitted to a jury as an issue of fact.” Holmes v. Clisby, 118 Ga. 820 (2) (45 S. E. 684); Flanders v. Daley, 120 Ga. 885 (4) (48 S. E. 327); Whitley v. Newman, 9 Ga. App. 89 (70 S. E. 686). In order to make the defense complete, the defendant must show good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons only. Sheftall v. Central of Ga. Ry. Co., and Ivester v. Coe, supra. Whether the communication is made at the proper time and proper place and to a proper person and in good faith is usually a question for the jury to determine under the facts of the particular case. Gillis v. Powell, 129 Ga. 403, 409 (58 S. E. 1051); Nicholson v. Dillard, supra.

Assuming, without déciding, that it could be held as a matter of law that the defendant’s conversation with Knight, of the school board, was privileged (17 R. C. L., p. 362, § 111), the same is not true of the statements made to Mr. and Mrs. Anderson. Although the defendant did not plead privilege, the nonsuit would have been right if the defense had affirmatively and conclusively appeared from the plaintiff’s own evidence. But it did not. The trial court therefore erred in granting the nonsuit.

Judgment reversed.

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


text:
    17827.
    Atlanta & West Point Railroad Company v. Williams Brick Company.
    Decided May 12, 1927.
    Certiorari, 11 C. J. p. 153, n. 67; p. 183, n. 50 New.
   Bell, J.

Where on the hearing in the superior court of a certiorari to review a judgment of'the appellate division of the municipal court of Atlanta affirming a judgment of the trial judge denying a motion for a new trial, the record showed that in making the appeal the movant failed to file a statement of the grounds of such motion and it did not appear that the “brief of evidence and the grounds of said motion” were certified as true by the trial judge, as required by the act of July 31, 1925 (Ga. L. 1925, p. 370, § 42, C), the superior court could not do otherwise than dismiss the certiorari. Dean v. Johnson, 18 Ga. App. 661 (90 S. E. 286); Reese v. Miller, 33 Ga. App. 442 (126 S. E. 904); East River Nat. Bank v. Ellman, 36 Ga. App. 263 (136 S. E. 799). Judgment affirmed.

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

Certiorari; from Fulton superior court — Judge Howard. October 6, 1936.

Dorsey, Howell & Heyman, Herman Heyman, for plaintiff in error.

Watkins, Asbill & Watkins, contra.


text:
    17828.
    Lockett v. Belcher Heating & Plumbing Co.
    Decided May 12, 1927.
    Action for damages; from Fultón superior court — Judge Ellis. .October 31, 1936.

      Mitchell & Mitchell, for plaintiff.

      Moore & Moore, for defendant.
    Highways, 29 C. J. p. 668, n. 13.
    Trial, 38 Cyc. p. 1557, n. 24; p. 1558, n. 27.
   Bell, J.

Under tlie evidence in this ease it was a jury question whether the driver of the automobile that struck and injured the plaintiff was negligent in driving it on the left side of the street and in not warning' the plaintiff by horn or other device of the approach of the automobile. The evidence was .conflicting as to whether the other side of the street was closed to traffic. There being evidence from which the jury could have inferred that the defendant’s servant who was driving the automobile was negligent "in one or more of the particulars charged, and the evidence not having disclosed any defensive facts from which it could be said as a matter of law that the plaintiff should not recover, the court erred in granting a nonsuit.

Judgment reversed.

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


text:
    17835.
    Christian et al. v. Terry.
    Appearances, 4 C. J. p. 1342, n. 40; p. 1359, n. 96.
    Judgments, 33 C. J. p. 1074, n. 43; 34 C. J. p. 269, n. 57.
    Venue, 40 Cyc. p. 99, n. 87.
   Bell, J.

1. A trover suit was brought against three persons jointly, one of them residing in the county in which the suit was filed and the other two residing in another county in this State, and the residence of each being shown in the petition. The petition was amended so as to strike the resident defendant as a party, after which a money verdict was rendered against the other two defendants only, and a judgment was entered on this verdict. A motion was made to arrest the judgment, upon the ground that after the dismissal of the suit as to the sole resident defendant the court was without jurisdiction to proceed against the other defendants, and that the verdict and judgment against them -were illegal and void. This motion should have been sustained. Warren v. Rushing, 144 Ga. 612 (87 S. E. 775); Williams v. Atlanta National Bank, 31 Ga. App. 212 (5) (120 S. E. 658), and cit.

Decided May 12, 1927.

Trover; from city court of Columbus — Judge Tigner. November 13, 1926.

G. Y. Harrell, Cleveland Bees, for plaintiffs in error.

George C. Palmer, contra.

2. The above conclusion is not altered by the fact that one of the nonresident defendants had, at the first term and prior to the striking of the name of the resident defendant, made a general appearance. The process required him to plead, to avoid being in default, and yet he could not raise the question of jurisdiction so long as the resident defendant was a party. Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. R. 250); Warren v. Rushing, supra.

3. Nor is the result changed by the further fact t(hat the nonresident defendants, on learning that verdict and judgment had gone against them, first moved to vacate the verdict and judgment, upon the ground that because of a misunderstanding between counsel these defendants and their attorney were mistaken as to the time when the case would be sounded for trial, and for that reason were not present to make their defense; such motion having been denied. The appearance by this motion, after rendition of the verdict and judgment, was not such an appearance as amounted to a waiver of jurisdiction. Civil Code (1910), §§ 5663, 5664; Lowe v. Echols, 98 Ga. 36 (25 S. E. 906). It could have been the defendants’ purpose, if they obtained the grant of this motion, then to move to dismiss the suit for want of jurisdiction, a procedure which would have been open to them had they been present when the plaintiff struck the resident defendant and sought judgment only against the other two.

4. The court erred in not sustaining the motion in arrest of judgment.

Judgment reversed.

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


text:
    17838.
    Hunter v. Jones.
    Continuances, 13 C. J. p. 169, n. 94; p. 199, n. 19 New.
    Ejectment, 19 C. J. p. 1176, n. 86; p. 1178, n. 29.
    New Trial, 29 Cyc. p. 762, n. 19.
   Bell, J.

1. In this proceeding to eject an intruder, under the Civil Code (1910), § 5380, the court allowed the counter-affidavit to be amended. The only exception to this ruling is contained in the plaintiff’s motion for a new trial. A ruling allowing an amendment to the pleadings can not be made a ground of the motion for a new trial. Simmons v. Lanford, 21 Ga. App. 686 (94 S. E. 907).

2. The amendment was to allow the insertion of- the word “legal” between the words “the” and “right,” as they appeared in the counter-affidavit. No motion to continue tlie case was made on tlie ground of surprise (as to whether such a motion, if made, would have had the slightest merit, see Pitts v. Eppinger, 33 Ga. App. 354 (126 S. E. 303), but after the amendment was allowed the plaintiff moved for a continuance because the plaintiff’s counsel had just been employed and “had not had the time nor opportunity to examine the papers in the case and had not read them.” Both parties had announced ready at the call of the case for trial. The court did not err in overruling the motion to continue. See Civil Code (1910), § 5721.

Decided May 12, 1927.

Affidavit to evict intruder; from Eabun superior court — Judge J. B. Jones. November 22, 1926.

J. C. & H. E. Edwards, W. S. Paris, for plaintiff.

R. C. Barney, J. A. Noyes, for defendant.

3. The court did not err in admitting in evidence a written agreement between the alleged owner of the premises and the defendant’s son, showing that the son was in possession of the premises as tenant of such alleged owner, the evidence showing, without dispute, that the defendant was occupying the premises solely in right of her son, as a member of his family. This agreement at least illustrated the defendant’s good faith, such being the only issue for determination in a case of this sort. And there being no evidence to show that the defendant did not enter and remain upon the land honestly and in good faith, the court properly directed the verdict in her favor. See Bagley v. Stephens, 78 Ga. 304 (2 S. E. 545); Lane v. Williams, 114 Ga. 124 (39 S. E. 919); Foreman v. Pelham, 8 Ga. App. 822 (70 S. E. 158); Sheats v. Blair, 7 Ga. App. 272 (66 S. E. 812). There was no error in refusing a new trial.

Judgment affirmed.

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


text:
    17819.
    COPELAND v. DUNEHOO et al.

    1. In this suit against a deputy sheriff and the surety on his official bond, the allegations of the petition were sufficient to show a wrongful act committed by the principal defendant under color of his office, within contemplation of the bond.
    2. It appearing from the petition that the officer was about to search for liquors in the plaintiff’s automobile, in which she was riding, and that he was intending to arrest her for the offense of misdemeanor in the transportation of such liquors, if any were found, and that her chauffeur, on discovering the officer, sped the automobile in flight, and that the officer thereupon pursued the automobile and its occupants and shot at the plaintiff several times with a pistol, some of the bullets barely missing her, and that his conduct in shooting at her is the wrong complained of, the petition made a case for the recovery of “smart-money,” i. e., punitive damages, without an allegation of actual damage.

      Arrest, 5 O. J. p. 426, n. 95.
    Damages, 17 C. J. p. 831, n. 56; p. 832, n. 57; p. 974, n. 20; p. 977, n. 34; p. 1006, n. 6 New, 8: p. 1007, n. 12 New.
    Evidence, 22 O. J. p. 148, n. 67.
    Sheriffs and Constables, 35 Cyc. p. 1977, n. 79.
    Smart-Money, 36 Cyc. p. 496, n. 21.
    Statutes, 36 Cyc. p. 1167, n. 98, 99, 1.

      3. Where the facts narrated in the petition are sufficient to authorize the inference that the wrongful acts complained of were in bad faith, it is unnecessary to so characterize them by express allegations. In a case of this sort, any arbitrary omission by the officer to do that which is required of him by law, or any conscious disregard of the limitations upon his authority, would amount to “bad faith,” within the meaning of that term as employed in section 299 of the Civil Code (1910). The petition set forth a cause of action, and there was no merit in any ground of the demurrer. The court erred in dismissing the action.
    Decided May 12, 1927.
    Complaint; from city court of Floyd county — Judge Bale. November 27, 1926.
    Application for certiorari was made to the Supreme Court.

      Porter & Mebane, for plaintiff.

      Willingham, Wright & Covington, for defendants.
   Bell, J.

Mrs. John Copeland brought suit against Henry Dunehoo, deputy sheriff of Floyd County, and Fidelity & Deposit Company of Maryland, for a breach of Dunehoo’s official bond to the sheriff, on which the company was surety. The court sustained general and so-called special demurrers filed by the defendants, and the plaintiff excepted.

The plaintiff laid her damages at $1000, and by her petition made the following case: The bond sued on was conditioned for the faithful performance by the principal of all his duties as deputy sheriff during the term of his appointment, and was in full force and effect at the time of .the wrongs complained of. The petition alleged, that on December 17, 1925, Dunehoo, as deputy sheriff of Floyd County, was stationed at Lindale, and it was one .of his special duties as such officer “to ferret out and arrest persons engaged in the violation of the prohibition law of the State of Georgia;” that as such deputy sheriff, on said date, some person, whose name is unknown to the petitioner, informed said deputy sheriff that petitioner, who lived a few miles south of Lindale, had gone to Cedartown in an automobile for the purpose of securing a quantity of intoxicating liquor, and that petitioner would return to her home, with said intoxicating liquor in said automobile, in the early part of the evening of said date; . . that thereupon said Henry Dunehoo, for the purpose of seizing said liquor and arresting . . petitioner, and acting under the color of his office and in his official duty as deputy sheriff, went to petitioner’s home and secreted himself behind a tree, and shortly after dark . . petitioner returned to her home, and just as she had gotten in her yard some one, to her at that time unknown, ran from behind the tree with a pistol in his hand, and hollered, ‘Halt’; . . ' that the son of . . petitioner was driving the automobile in which slm was driving, and, for the purpose of fleeing from said person who ran from behind said tree with said pistol, started to drive said automobile hurriedly away from petitioner’s home; . . that thereupon said deputy sheriff, who had been hidden behind said tree as aforesaid, ran up to and towards said automobile where petitioner was riding, and with said pistol, a weapon of death, fired five bullets at . . petitioner, two of the said bullets passing through the door of said automobile and within an inch or two of the front part of the plaintiff’s body, barely missing her, and two of said bullets within a few inches of the rear of her body, barely missing her, and one of said bullets, the fifth'one, would have gone through petitioner’s body if it had not hit an object in the pocket of said car door; . . that thereupon said son of . . petitioner stopped said automobile, and said Henry Dunehoo, deputy sheriff as aforesaid, came up to said autQmobile and arrested petitioner for possessing intoxicating liquor, and examined the place in said door where one of his bullets lodged, and told petitioner that if he had had his ‘big gun’ that he would have ‘put a hole’ through her, searched said automobile, and found no intoxicating liquor therein, and petitioner avers that she nor anyone else in said automobile had had any intoxicating liquor therein.

“Petitioner shows that the said deputy sheriff had no right to shoot at her, that she had committed no felony, and that his said act of shooting at her was wrongful and illegal; and that even though said deputy sheriff was in the performance of his duty as an officer of the law, in ferreting out an alleged violation of the prohibition law, and in arresting said petitioner for a violation of the prohibition law, and even though said officer was engaged in an act under the color of his office and by virtue of his office, that nevertheless, when said deputy sheriff shot at . . petitioner as aforesaid, he was in the improper performance of his duties. Petitioner therefore says that the said Henry Dunehoo as such deputy sheriff breached the obligation of his said official bond so executed to said R. E. Wilson, sheriff as aforesaid, in that his said act of shooting at . . petitioner was not in the terms of the law, and not a faithful performance of his duties as is required by law, but in violation of law. Petitioner shows that the shooting at her by the said Dunehoo with said deadly weapon placed her in great mental fear for her life, and that as the bullets from said pistol of the said Henry Dunehoo whizzed all around her she suffered the most excruciating pain and agony. Petitioner shows that said acts of the said Henry Dunehoo were wilful and intentional, and petitioner is entitled to punitive damages from said defendant, for which she sues. Eor said reasons aforesaid, petitioner shows that the said Henry Dunehoo and the said Fidelity & Deposit Company of Maryland, under said official bond aforesaid, and as surety thereon, are liable to your petitioner in the sum of $1000 as aforesaid.”

One who is aggrieved by the official misconduct of a deputy sheriff may at Ms option sue either on the sheriff’s bond or on the 'deputy’s bond. Civil Code (1910), §§ 294, 295. The bond of the deputy, who is the principal defendant in this case, subjected him and his surety to liability for any wrongful act committed by virtue of his office, as- well as for his failure to perform or for the improper or neglectful performance of any of the duties imposed upon him by law. Civil Code (1910), § 291. The fact that a tort by the officer is disclosed does not render the action one ex delicto. Under the facts alleged in this case, the commission of the tort was a violation of the bond, and the petition is construed as an action for the breach thereof. We think it clearly charges a wrongful act done under color of office, for which the officer and his surety may be held liable on the bond, provided the damages sued for are recoverable. Robertson v. Smith, 16 Ga. App. 760 (85 S. E. 988); Civil Code (1910), § 767; Fidelity &c. Co. v. Smith, 35 Ga. App. 744 (134 S. E. 801), and cit.

The petition alleges no actual physical injury, and punitive damages only are sued for. Are such damages recoverable under the facts set forth in the petition ? Section 299 of the Civil Code (1910) provides: “The measure of damages upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of the injury actually sustained, including the reasonable expenses of the suit to the plaintiff, besides the costs of court, but in all cases when little or no damage is actually sustained, and the officer has not acted in good faith, the jury may find for the plaintiff an amount, as smart-money, which, taking all the circumstances together, shall not be excessive or oppressive.” Although the damages which the plaintiff seeks to recover are not denominated as “smart-money,” this term, as employed in the code provision quoted, seems to be substantially synonymous with “punitive damages.” Black’s Law Dictionary, 1102; 36 Cyc. 496; 25 Am. & Eng. Enc. Law (2d ed.), 1127. It is declared in the Civil Code (1910), § 4393, that “Exemplary damages can never be allowed in cases arising on contracts.” A strong word is “never,” yet we must construe this section in the light of all others relating to the same subject, and, on so construing it, we think that while the rule stated therein is a very strict and well-nigh universal one, it is still not a rule without any exception whatever. It seems that at least one exception is found in the provision for “smart-money” as contained in § 299. The Supreme Court impliedly so held in Harris v. Black, 143 Ga. 497 (4) (85 S. E. 742). There may be other exceptions (see Civil Code, § 2549; Haber-Blum-Block Co. v. So. Bell Tel. Co., 118 Ga. 874 (4), 45 S. E. 696), but that question is unimportant in this ease.

It is claimed by the defendants that the plaintiff is seeking to recover only for the “great mental fear for her life” and for her “pain and agony,” and that these are not elements of recoverable damages in the absence of an additional and actual injury of some sort. Whether this contention is answered in the particular case by the provisions of section 299, the leading case in this State (Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183) on the doctrine which the defendants here invoke plainly differentiates such cases as involve an infringement of personal security or personal liberty and other wrongs which are essentially wilful. On page 768 it was pointed out that “An assault is an active threat against the body, an offer of violence endangering the person, which the law redresses even in its initial stage, thus protecting the physical person more completely;” and on page 769 it was said: “In an action for false imprisonment, or for malicious arrest and prosecution, mental anguish has been held a proper subject for compensatory damages. Fisher v. Hamilton, 49 Ind. 341; Stewart v. Maddox, 63 Ind. 51; Coleman v. Allen, 79 Ga. 637 (5 S. E. 204, 11 Am. St. R. 449). Of course, such-injuries are essentially wilful, and besides are violations of the great right of personal security or personal liberty. Reference has been made also to cases of passengers being put off railway trains, when the mortification, insult, and wounded feelings come in to enhance the damages. From the moment the passenger is ordered to get off, he is under duress; his body is not free to remain where he chooses and where it has the right to be. It is like an illegal arrest or imprisonment. In all these eases where personal security or personal liberty is infringed, the mental suffering seems to be a necessary component in the injury.”

According to the allegations, the plaintiff had done no wrong, had committed no offense. The officer did not suspect her of having committed other than a misdemeanor; and even if she had been guilty of that offense, and was fleeing from arrest or detection, he had no right to shoot her or to shoot at her. Paramore v. State, 161 Ga. 166 (2) (129 S. E. 772); Douglass v. State, 152 Ga. 379 (4) (110 S. E. 168). Under the allegations of the petition, the officer committed against the plaintiff the offense of shooting at another (Penal Code, § 115), which is a form of aggravated assault. Penal Code, § 95. In a suit for such a wrong, “it is not necessary to allege and prove any pecuniary loss, or even actual physical injury, to warrant a recovery.” Pye v. Gillis, 9 Ga. App. 725 (2) (72 S. E. 190). See also Cole v. Atlanta & West Point R. Co., 102 Ga. 474 (31 S. E. 107); Sappington v. Atlanta & West Point R. Co., 127 Ga. 178 (56 S. E. 311). For the purposes of this case, the officer is conclusively presumed to have known the law (Ryan v. State, 104 Ga. 78, 80, 30 S. E. 678); and this .being true, his act of shooting at the plaintiff appears to have been wilful or wanton in fact, and in such cases the plaintiff is entitled to recover for fright and mental suffering without proof of other injury. Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (4) (56 S. E. 119); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59); Pullman Co. v. Strang, 35 Ga. App. 59 (5, 6, 7) (132 S. E. 399). While the cases cited above are all tort cases, they are not here irrelevant, because in this connection we are replying only to the contention that the plaintiff can not recover for mere fright or mental suffering. From what has been said, it is unnecessary to extend this discussion into a consideration of the facts that the automobile in which the plaintiff was riding was struck and that parts thereof very close to the plaintiff were pierced by several bullets. Did these facts amount to a battery upon the plaintiff; and if not, did they yet constitute an injury additional to the fright and mental pain, within the meaning of the above cases? See, in this connection, Throckmorton’s Damages for Fright, 34 Harvard Law Review, 260, and cases cited.

Furthermore, it was not even essential to the statement of a cause of action that the plaintiff should have made the allegations respecting her fear and mental suffering, in view of the other facts appearing, although such allegations may, perhaps, be relevant, if proved, for the purpose of enlarging the recovery. The code says in effect that the principal and his surety on an official bond are liable for smart-money where the officer has acted in bad faith, even if no damage has been sustained, the recovery not to be excessive or oppressive, in consideration of all the circumstances. We think it clear that the petition shows bad faith sufficiently for the recovery of smart-money. The facts narrated in the petition would warrant the inference that the acts complained of were intentional and wilful, irrespective of the express allegations to that effect.

The exact inquiry, however, is not whether the acts were intentional or wilful, but whether they were in bad faith. The “bad faith” referred to in section 299 of the code may be of a different character from that which under certain conditions will authorize a recovery of damages and attorney’s fees in suits on insurance policies. Civil Code (1910), § 2549. Counsel for the defendants say that “bad faith involves fraud, deceit, duress, or some such act, and is a state of mind,” and with this we agree. See Traders Insurance Co. v. Mann, 118 Ga. 381 (7), 385 (45 S. E. 426). It is at least the opposite of good faith, and it could not well be contended that a person in good faith committed the offense of shooting at another. The inference of bad faith may be drawn from the facts set forth in the petition, even though there is no specific allegation upon the point. Any arbitrary omission by the officer to do that which is required of him by law, or any conscious disregard of the limitations upon his authority, would amount to bad faith within the meaning of that term as employed in section 299 of the Civil Code (1910). The defendants’ counsel-say that Mr. Dunehoo evidently believed what he had been told, namely, that the plaintiff would soon be passing his way and would be carrying liquors in her automobile. Even so, and assuming that this fact without more would have justified the proposed search and arrest (but see Carroll v. U. S., 267 U. S. 132, 45 Sup. Ct. 280, 69 L. ed. 543; Johnson v. State, 152 Ga. 271, 109 S. E. 662; Pickett v. State, 99 Ga. 12, 25 S. E. 608, 59 Am. St. R. 226; Douglass v. State, supra), the defendant knew that such conduct on the part of the plaintiff would amount to no more than a misdemeanor, and that he had no right to shoot at her merely because she fled. In our opinion, the petition set forth a cause of action, and contained none of the infirmities said by the demurrers to be inherent therein. There being no merit in any ground of the demurrers, the court erred in dismissing the petition.

Judgment reversed.

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