text:
    17315.
    Getters v. The State.
    Criminal Law, 16 C. J. p. 932, n. 12, 14; p. 1002, n. 12; p. 1013, n. 42; p. 1180, n. 74.
    Decided June 15, 1926.
    Assault with intent to murder; from Bibb superior court-judge Mathews. March 13, 1926.

      J. D. Hughes, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Luke, J.

1. The defendant was convicted of assault with intent to murder. A careful reading of the charge of the court discloses that it -is not subject to the attack made upon it in the motion for a new trial. Under the facts of this case the court was not bound, in the absence of a proper request, to charge the law of confessions. Sellers v. State, 99 Ga. 212 (25 S. E. 178). Neither did the court err in failing to charge the law relative to impeachment by contradictory statements. Whether a witness “be impeached or not is for the jury to say; and though others contradict him, the jury may believe him in preference to them.” Williams v. State, 69 Ga. 14 (28).

2. The evidence authorized the verdict, no error of law is shown, and the judgment of the court in overruling the motion for a new trial is

Affirmed.

Broyles-, O. J., and Bloodworfh, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    17318.
    McLAUGHLIN v. THE STATE.
    1. Under numerous previous rulings, the first special ground of the motion for new trial presents nothing for decision.
    2. There is no merit in the ground relating to instruction upon the statement of the accused.
    3. Read in the light of the evidence, the charge to the jury shows no such error as is complained of.
    4. The evidence supported the verdict.
    Criminal Law, 16 C. J. p. 1047, n. 65; p. 1218, n. 53 New; p. 1219, n. 67; 17 C. J. p. 87, n. 43; p. 181, n. 37, 38.
    Decided June 15, 1926.
    Shooting at another; from Telfair superior-court—Judge Camp presiding. March 13, 1926.

      J. K. Whaley, Eugene Talmadge, for plaintiff in error.

      M. II. Boyer, solicitor-general, contra.
   Bloodworth, J.

“A ground of a motion for a new trial should be complete in itself,' or rendered so by an exhibit to the motion. Accordingly/ it has been repeatedly ruled that a ground based on the admission or rejection of evidence presents nothing for adjudication, when such evidence is not set forth therein either 'literally or in substance, nor attached as an exhibit to the motion.” Shaw v. Jones, 133 Ga. 446 (9), 450 (66 S. E. 240). “Under the rulings of this court and of the Supreme Court, this court will not search through the record to find errors, when they are not. specifically pointed out in the assignments of error or in the grounds of the motion for a new trial. The rule is that each ground of the motion for a new trial must be complete in itself.” Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361). “A ground of a motion for a new trial which complains of the admission of certain specified testimony upon the trial of the case must state the name of the witness whose testimony- is "complained of.” Peeples v. Butler, 21 Ga. App. 310 (94 S. E. 278); Hayes v. State, 18 Ga. App. 68 (88 S. E. 752). Under the foregoing and numerous other decisions of this court and of the Supreme Court ground 1 of the amendment to the motion for a new trial presents nothing for determination by this court.

""The court having fully and accurately instructed the jury on the law touching the prisoner’s statement, a charge that the jury get the facts from the witness stand, and from no other source, when considered in its context, did not restrict the jury to the testimony and eliminate from their consideration the prisoner’s statement, in reaching a verdict.” Jordan v. State, 130 Ga. 406 (5) (60 S. E. 1063). ‘"It is not erroneous for a judge, when charging a jury in a criminal case, to "keep the evidence distinct from the statement’ of the accused, "and shape the general tenor of the charge by the evidence alone and the law applicable to it,’ taking care, however, to give appropriate instructions respecting the statement.” Tucker v. State, 114 Ga. 61 (5) (39 S. E. 926). See Lucas v. State, 146 Ga. 331 (11) (91 S. E. 72), and cit. Under the rulings in the foregoing cases there is no merit in the 2d special ground of the amendment to the motion for a new trial.

When the charge is read in the light of the evidence, there is no error of omission or commission in the charge of -which complaint is made in the motion.

The verdict is supported by the evidence.

Judgment affirmed.

Broyles, Q. J., and Lulce, J., concur.


author: Beoyles, C. J.

text:
    17319.
    Proctor v. The State.
    Criminal Law, 16 C. J. p. 1230, n. 66; 17 C. J. p. 333, n. 95.
    Decided June 15, 1926.
    Selling liquor; from city court of Blacksbear—Judge Mitchell. March 15, 1926.

      James B. Thomas & Son, for plaintiff in error.

      S. Thomas Memory, solicitor, contra.
   Beoyles, C. J.

1. An affidavit in support of the witness upon whose newly-discovered evidence a new trial is sought must give the names of his associates; and where it fails to do so, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Waller v. State, 34 Ga. App. 674 (131 S. E. 95). Under this ruling the court did not err in overruling grounds 4 and 5 of the amendment to the motion for a new trial.

2. Under the facts of the case the rejection of the testimony set forth in ground 6 of the amendment to the motion for a new trial does not require another hearing of the case.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    17321.
    Cowin v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 66.
    Innkeepers, 32 C. J. p. 573, n. 43; p. 574, n. 49.
   Luke, J.

“Any person who shall obtain food, lodging or other accommodation at any hotel, inn, boarding-house or eating-house in the State of Georgia, except when credit is given therefor by express agreement, with intent to defraud the owner or- keeper of the same, shall be guilty of a misdemeanor, and shall be fined a sum not exceeding two hundred dollars or imprisoned for a period of time not exceeding three months, either or both in the discretion of the court.” Ga. Laws, 1910, p. 137. The evidence in this case did not authorize the jury to find that the defendant, with intent to defraud, obtained food and lodging from the boarding-house named in the accusation. Eor the reason that the evidence did not authorize the conviction of the defendant, the court erred in overruling the motion for a new trial.

Decided June 15, 1926.

Defrauding boarding-house; from city court of Nashville— Judge W. R. Smith. April 5, 1926.

Wm. Story, for plaintiff in error. J. H. Gary, solicitor, contra.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    17323.
    Green v. The State.
    Criminal Law, 16 C. J. p. 588.
    Decided June 15, 1926.
    Burglary; from Floyd superior court—Judge Maddox. March 20, 1926.
    Application for certiorari was made to the Supreme Court.

      Harris & Harris, for plaintiff in error.

      James F. Kelly, solicitor-general, contra.
   Bloodworth, J.

1. For no reason alleged did the court err in admitting that portion of the evidence as to which complaint is made in the amendment to the motion for a new trial. Evidence of other crimes which has a distinct relevancy to the case on' trial and tends “to connect the accused with the specific crime charged, or else to indicate his general. practice or course of conduct, or motive, intent, or bad faith, or to establish a common scheme or plan of related offenses” is “not inadmissible merely because it also tends to show- the defendant’s connection with some other criminal transaction.” Goldberg v. State, 20 Ga. App. 163 (2) (92 S. E. 957), and cit.

2. After the judge has given to the jury instructions as to the form of their verdict in case the accused is found guilty it is not “an intimation or expression of opinion” upon the facts of the case for the judge to charge them, “Of course, if you find the defendant not guilty, the form of your verdict would be ‘We, the jury, find the defendant not guilty.’”

3. The verdict is amply sustained by the evidence.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


text:
    17322.
    Green v. The State.
    Decided June 15, 1926.
    Description of case and names of counsel the same as in the preceding case.
   Bloodworth, J.

This case is controlled by the rulings in Green v. State, ante, 500.

Judgment affi/rmed.

Broyles, G. J., and Luke, J., concur.


author: Broyles, C. J.

text:
    17324.
    James v. The State.
    Decided June 15, 1926.
    Rehearing denied July 14, 1926.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. March 10, 1926.

      W. A. James, L. 8. James, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boylcin, solicitor-general, J. TV. LeCraw, contra.
   Broyles, C. J.

Under all the facts of the case as disclosed by the record the court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17333.
    HAMMOCK v. THE STATE.
    1. Under previous rulings there is no merit in the contention relative to evidence^obtained by illegal search and seizure; or in the other special assignments of error.
    2. The evidence authorized the verdict, and no error of law appears.
    Criminal Law, 16 C. J. p. 570, n. 90.
    Decided June 15, 1926.
    Making intoxicating liquor;- from Taylor superior court—Judge McLaughlin. February 6, 1926.
    Application for certiorari was made to the Supreme Court.

      Jere M. Moore, Homer Beeland, for plaintiff in error.

      W. R. Flournoy, solicitor-general, contra.
   Luke, J.

The defendant was convicted of manufacturing intoxicating liquor. The motion for a new trial complains of the admission of certain testimony because it was obtained by illegal search and seizure. The State’s witness testified that the defendant “didn’t object” to the search and seizure, and the record shows that the defendant was not compelled to furnish and did not furnish the evidence used against him, but that it was found by the officer during his unlawful search. Hnder the facts of this case, and upon the authority of Williams v. State, 100 Ga. 511 (28 S. E. 624, 39 L. R. A. 269), Dozier v. State, 107 Ga. 710 (33 S. E. 418), Duren v. Thomasville, 125 Ga. 1 (2) (53 S. E. 814), Calhoun v. State, 144 Ga. 682 (87 S. E. 893), Lester v. State, 155 Ga. 885 (118 S. E. 674), Glover v. State, 4 Ga. App. 455 (2, 3) (61 S. E. 862), Warren v. State, 6 Ga. App. 18 (2) (64 S. E. 111), Cohen v. State, 7 Ga. App. 5 (2) (65 S. E. 1096), Young v. State, 12 Ga. App. 86 (2) (76 S. E. 753), McAllister v. State, 17 Ga. App. 160 (2) (86 S. E. 412), Fanning v. State, 17 Ga. App. 316 (86 S. E. 731), Lunceford v. State, 17 Ga. App. 415 (87 S. E. 151), Smith v. State, 17 Ga. App. 480 (2) (87 S. E. 713), and Smith v. State, 17 Ga. App. 693, 698 (88 S. E. 42), there is no merit in the plaintiff’s contention relative to evidence obtained by illegal search and seizure. The other special grounds of the motion are without merit.

The evidence authorized the verdict, and no error of law is shown to have been committed.

Judgment affirmed.

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


text:
    17341.
    Mimbs v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided June 15, 1926.
    Rehearing denied July 13, 1926.
    Assault with intent to murder; from Laurens superior court-judge Camp. March 17, 1936.
    W. A. Dampier, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Bloodworth, J.

1. There is nothing in any of the grounds of the amendment to the motion for a new trial that requires the grant of a new trial. 2. There is ample evidence to support the finding of the jury, which has the approval of the trial judge, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luhe, J., oonour.


text:
    17342.
    Ward v. The State.
    Intoxicating Liquors, 33 O. J. p. 781, n. 33.
   Broyles, C. J.

1. Under the rulings in Cowart v. State, 33 Ga. App. 122 (125 S. E. 770), and Rhodes v. State, 33 Ga. App. 827 (128 S. E. 217), this court can not hold, as a matter of law, that the trial judge erred in ruling that the accused, by his statement to the jury (in which he denied ever having sold any whisky), had put in issue his general character as to selling whisky, and in permitting the State thereafter to introduce rebuttal evidence which tended to show that he had sold whisky on previous occasions.

Decided June 15, 1926.

Selling intoxicating liquor; from city court of Macon—Judge Hall. April 2, 1926.

Hunter & Duly, for plaintiff in error.

2. The remaining grounds of the amendment to the motion for a new trial show no harmful error, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17348.
    Hicks v. The State.
    Criminal Law, 16 C. J. p. 570, n. 90; p. 1180, n. 74.
    Decided June 15, 1926.
    Possessing intoxicating liquor; from city court of Oglethorpe— Judge Greer. March 22, 1926.
    Application for certiorari was made to the Supreme Court.

      Jere M. Moore, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Luke, J.

1. The defendant was convicted of having intoxicating liquors-in his possession. The only two special grounds of the motion for a new trial allege that certain evidence was improperly admitted because obtained by illegal search and seizure, and because defendant’s home was searched while defendant was under illegal arrest. The case of Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814), and that of Smith v. State, 17 Ga. App. 693 (88 S. E. 42), settle this question adversely to plaintiff in error. The ease last cited includes the answer of the Supreme Court to questions certified to it by this court on this subject, and contains a full discussion of the principle here involved and the leading eases thereon.

2. The evidence authorized the verdict; the record discloses no error of law in the trial of the cáse, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Stephens, J.

text:
    16033.
    Sheppard v. Clark et al.

    Guardian and Ward, 28 C. J. p. 1310, n. 28; p. 1312, n. 68 New, 90.
   Stephens, J.

1. Although - the statutory bond required of a guardian (Civil Code (1910), § 3047) is payable to the ordinary, suit thereon may -be maintained by the ward in his own name after becoming- of age, and need not be maintained by the ordinary suing for the use of the ward. Roush v. First National Bank of Charleston, 102 Ga. 109 (29 S. E. 144).

Decided June 15, 1926.

Action upon bond; from Warren superior court—Judge Shurley. October 7, 1924.

B. W. Ware, for plaintiff. M. L. Felts, for defendants.

2. Suit may be maintained against the sureties upon the guardian’s bond although the guardian be not a party defendant in the same action. See answer to certified question in this case, 162 Ga. 143 (132 S. E. 755).

3. In a suit against the sureties upon a guardian’s bond by the ward after becoming of age, where the guardian was not made a party defendant, the petition, which recited that a personal judgment had been obtained against the guardian in a certain amount in a suit by the ward against the guardian for an accounting, and which recited a return of nulla bona upon an execution issued thereon against the guardian, and that the execution had not been paid, set out a cause of action and was not subject to general demurrer, nor to special demurrer upon the ground of nonjoinder of parties. The court erred in dismissing the petition.

Judgment reversed.

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


text:
    16744.
    Ocean Accident & Guarantee Corporation Limited v. Martin.
    Workmen’s Compensation Acts, C. J. p. 105, n. 25; p. 115, n. 37; p. 121, n. 24 New.
    Decided June 15, 1926.
   Stephens, J.

1. The evidence authorized the finding by the Industrial Commission that the claimant’s husband received a fall which caused^ the rupture of an internal ulcer from which death ensued, and that the injury arose out of and in the course of the employment.

2. The evidence authorized the inference that the representative of the injured employee immediately gave notice of the injury to the immediate superior of the injured employee, and therefore a written notice to the employer was not necessary. See workmen’s compensation act as amended, Ga. L. 1923, p. 93, sec. 23.

3. The question as to venue, not having been raised before the Industrial Commission, will be treated as having' been waived. See workmen’s compensation act, Ga. L. 1920, p. 197, sec. 56. It can not be raised for the first time on appeal to the superior court. United States Fidelity & Guaranty Co. v. Christian, ante, 447.

4. The judge of the superior court did not err in affirming the award to the claimant made by the Industrial Commission.

Judgment afjvi’med.

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

Appeal; from-Fulton superior court—Judge E. D. Thomas. June 15, 1925.

Ralph G. Sims, for plaintiff in error.

Key, McClelland & McClelland, contra.


author: Jenkins, P. J.

text:
    16798.
    Gibbs v. John Hancock Mutual Life Ins. Co.
    Appeal and Error, 4 C. J. p. 271, n. 32; p. 299, n. 71; p. 570, n. 91.
    Decided June 15, 1926.
    Complaint; from city court of Tifton—Judge Bennet. July 15, 1925.

      Jeff. S. Story, Hendricks & Hendricks, for plaintiffs in error.

      Rogers & Rogers, contra.
   Jenkins, P. J.

1. “Where the date of the entry of filing by the clerk of the trial court upon the bill of exceptions, when considered in connection with the date of the judge’s certificate, shows -that the bill of exceptions was filed in the clerk’s office more than fifteen days after it was ’certified by the judge, the writ of error will be dismissed.” Norris v. Baker County, 135 Ga. 229 (2) (69 S. E. 106) ; Goodin v. Mills, 137 Ga. 282 (73 S. E. 399); Tatum v. Trapnell, 30 Ga. App. 104 (117 S. E. 251).

2. It appearing from the record that the date of the unqualified certificate of the judge to the bill of exceptions is July 31, 1925, and that the date of the filing of the bill of exceptions in the office of the clerk of the trial court is August 21, 1925, the motion to dismiss the writ of error must necessarily be sustained. Civil Code (1910), § 6167.

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    16844.
    Feinberg et al. v. Sutker.
    Landlord and Tenant, 36 C. J. p. 74, n. 41; p. 79, n. 3; p. 264, n. 76; p. 410, n. 71; p. 412, n. 79.
    Pleading, 31 Cyc. p. 49, n. 68; p. 50, n. 69; p. 640, n. 20; p. 41, n. 30.
   Jenkins, P. J.

This was an action on a written contract, for an alleged balance due on rent of a storehouse. The defendant admitted the contract, but, denying liability, set up, as a special ground of defense, that, owing to the demolition of a building adjoining the west side of the rented property, the plaintiff, as owner of the rented property, undertook to shore up its west wall, and that the work was done so carelessly and negligently as to cause the west wall to sink from three to twelve inches along its entire length, and caused a crack about one inch wide to appear at the top of the said wall and to extend down to the foundation of the building, and also caused a network of cracks to appear in and cover the back wall of the building. Defendant avers that, by reason of such negligent conduct of the plaintiff, resulting in “the unsafe and dangerous condition of said leased building,” her business was practically destroyed, and that she could no longer continue to operate a public business therein, and that she was therefore compelled to remove from the rented premises, and that the building remained in an apparently dangerous and unsafe condition during the remainder of the lease; and by reason of all those facts she denied that she was due the plaintiff any rent accruing subsequently. The defendant sought also to recoup certain additional items of special damage claimed by her to have been occasioned. by her forced removal. The plaintiff demurred, both generally and specially, the demurrers were sustained in every respect save that the court required the plaintiff to prove that the rent had not been paid, and on submission of such proof a verdict for the plaintiff was directed in the amount sued for. Held:

l. “A covenant for quiet enjoyment is necessarily implied in every lease.” Adair v. Allen, 18 Ga. App. 636 (2) (89 S. E. 1099). Accordingly, where a landlord enters upon the rented premises for the ostensible purpose of making repairs, irrespective of whether it is in conformity with a legal obligation due to his tenant, or whether it is for the purpose of protecting his own property, if his.conduct consists of negligent acts of such grave and permanent character as would render the premises unfit for tenancy, and is such as would actually deprive and would legally import the intent to deprive the tenant of their enjoyment, it amounts in law to an eviction of the tenant, and the landlord can not thereafter recover subsequently accruing rent. Civil Code (19.10), § 3711.

2. Where, as in the instant case, it appears from the terms of the contract of rent sued on that the landlord owed no duty to the tenant to keep the premises in repair, and where the acts of the landlord complained of by the tenant do not purport to have been committed in conformity with any legal or contractual obligation on his part, the injury growing out of the alleged negligent conduct of the landlord amounts merely to a tort. While, under the principles set forth in the preceding division of the syllabus, the defendant was entitled to plead, and to prove, if she could, a termination of her tenancy by an eviction caused by the landlord, no matter how such eviction might have been brought about, yet since the suit is on contract, in the city court, and no equitable principle is invoked, she was not entitled to set up damages by recoupment for the tort alleged to have been perpetrated by the plaintiff. Porter v. Davey Tree-Expert Co., 34 Ga. App. 355 (129 S. E. 557). Accordingly, all the allegations of the answer seeking to set up special damages were properly stricken.

3. The effect of the ruling of the trial judge was to eliminate in its en- ■ tirety the special ground of defense pleaded. The judgment striking ■ all the plea except the general denial of indebtedness will be reversed, leaving the matters in respect to the special demurrers for further action in the trial court. Brown v. Mayor &c. of Milledgeville, 20 Ga. App. 392 (4) (93 S. E. 25) ; McSwain v. Edge, 6 Ga. App. 9 (2) (64 S. E. 116). Under the rule stated above, all the portions of the plea seeking to recoup damages which were attacked by special demurrer (grounds 15 to 26 inclusive) were properly stricken. The portions of the plea setting forth' the opinions of witnesses and conclusions of the pleader, and averments which were evidentiary in character, attacked by grounds 2, 3, 4, 5, 6, 9, 10, and 11, were also properly stricken. The special grounds of demurrer to the remaining portions of the plea, setting up the facts hereinbefore outlined in the statement of facts, as well as the general demurrer to the special plea, should have been overruled.

Decided June 15, 1926.

Action on contract; from city court of Savannah—Judge Freeman. August 6, 1925.

Oliver & Oliver, John Z. Ryan, for plaintiffs in error.

Mclntire, Walsh & Bernstein, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16927.
    Marshall v. Sheffield et al.

    Evidence, 22 C. J. p. 1050, n. 25.
    Sales, 35 Cyc. p. 558, n. 95; p. 574, n. 84.
    Decided June 15, 1926.
    Complaint; from Baker superior court—Judge Custer. October 3, 1925.

      E. L. Smith, for plaintiff.
   Jenkins, P. J.

1. Under the original contract between the parties the defendant was privileged to return, freight prepaid, all unsold goods when reconditioned, and to receive credit therefor at the current wholesale price. Defendant pleaded satisfaction of the balance on the account sued upon, by virtue of a return of goods sufficient at the original .invoice price, as expressly authorized by a distinct subsequent contract in writing. While the plea did not allege that under such subsequent agreement, the returned goods could be shipped “collect,” it did allege their receipt and retention by the plaintiff. Held: The court did not err in overruling the demurrer to the plea.

2. Under the certificate of the judge that the absence of the alleged subsequent written agreement had been accounted for, the court did not err in admitting proof of the same by parol testimony.

3. Since, however, the plaintiff denied ever having made such a subsequent agreement, and denied having received and retained the goods returned, the court erred in directing a verdict for the defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16933.
    Cohen v. Brown.
    Appeal and Error, 3 O. J. p. 1070, n. 52 New; 4 C. J. p. 271, n. 32; p. 277, n. 60.
    Decided June 15, 1926.
    Appeal; from Fulton superior court—Judge E. D. Thomas. July 3, 1935.

      Bfurd & Phillips, for plaintiff in error.

      B. P. Gambrell, contra.
   Jenkins, P. J.

It appearing from the bill of exceptions that the judgment complained of was dated July 2, 1925, within the May term of the court, and it appearing from the certificate of the clerk of the trial court that the last day of the May term of said court was July 4, 1925, the bill of exceptions, which was tendered August 10, 1925, was not tendered within the time required by the Civil Code (1910), § 6152, and on motion must be dismissed. This code section does not in any case authorize delay for more than thirty days after final adjournment of a term in tendering to the trial judge a bill of exceptions to a judgment rendered during the term. Dietz v. Fahy, 107 Ga. 325 (33 S. E. 51) ; Carter v. Johnson, 112 Ga. 494 (2) (37 S. E. 736) ; First National Bank of Forsyth v. Taylor, 138 Ga. 119 (74 S. E. 783). The fact that the order of the superior court to which exception is taken provides that it shall operate as a supersedeas for twenty days relates merely to the enforcement of the judgment pending a valid writ of error, and did not have the effect of changing the date of the order excepted to, or of extending the time prescribed by law within which an appeal could be taken.

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    16953.
    Bagley v. Clement.
    Agency, 2 O. J. p. 968, n. 56.
    Appeal and Error, 4 O. J. p. 1036, n. 73.
    Sales, 35 Cyc. p. 578, n. 16.
    Trial, 38 Cyc. p. 1632, n. 10; p. 1633, n. 11.
   Stephens, J.

1. There being no evidence that the defendant knew that the overseer, his alleged agent, had acted for him in purchasing- the property, a charge of the court that if the defendant knew that the alleged agent had purchased the property for the defendant and that the defendant kept the property afterwards and used it, this would amount to a ratification, was not adjusted to tlie evidence; and since the evidence authorized the inference that no agency for the purchase of the property existed, this charge was prejudicial to the defendant, and was error.

2. The court erred also in not submitting to the jury the contention of the defendant, which was authorized by the defendant’s testimony, that the property remained upon the defendant’s farm by virtue of a sale to the overseer himself, and not to the overseer as agent for the defendant.

Decided June 15, 1926.

Certiorari; from Fulton superior court—Judge Bell. October 14, 1925.

Clement sued Bagley in the municipal court of Atlanta for the purchase price of certain farm machinery which he contended was sold by him to the defendant through the defendant’s overseer in charge of the defendant’s farm as the defendant’s agent. The defendant denied that the Overseer had any authority as his agent to purchase the property sued for, and contended that the property was left by the plaintiff with the overseer for demonstration purposes, and that the overseer afterwards, in the presence of the defendant and the agent of the plaintiff, when the defendant denied that the property had been purchased on his account, promised to pay for the property himself, and that under such an arrangement the property did not remain in the possession of the defendant, but remained in the possession of the overseer, who used it himself. There was evidence to sustain the defendant’s contention. A verdict was found for the plaintiff for the full amount sued for. The defendant sued out certiorari, the certiorari was overruled, and he excepted.

Mclllreath & Scott, for plaintiff in error.

D. K. Johnston, contra.

3. It being a contention of the defendant that no agency whatsoever existed in the overseer for the purchase of the property, a failure of the court to clearly submit this issue to the jury was error.

4. In view of the above rulings, it is unnecessary to pass upon any* of the other assignments of error.

5. The judge of the superior court erred in not sustaining the certiorari.

Judgment reversed.

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


text:
    17023.
    AMASON v. BANK OF TIGNALL.
    1. “Where to an action upon an unconditional contract in writing a plea was filed at the first term, which set forth a good defense, but was not sworn to by the defendants, and no objection was then made to it because of this defect, the plaintiff will be held to have waived the same so far as that term is concerned; and if at a subsequent term he moves to strike the plea because of such, defect, the court should then allow the defendants to complete the plea by a proper verification.” Ward v. Frick Co., 95 Qa. 804.(22 S. E. 899). In the instant case it does not appear that the plea was ever objected to on account of its not having been sworn to, but it was dismissed at the trial term on the ground that it set forth no sufficient defense in law. A dismissal on such objection will not bo sustained although the record shows that the plea was not verified, because, so far as that deficiency was concerned, the defendants should at that time have been given an opportunity to complete the plea by verification.

      Bills and Notes, 8 O. J. p. 918, n. 18; p. 930, n. 62.
    Evidence, 22 C. J. p. 1165, n. 80.
    Pleading, 31 Cyc. p. 68, n. 76; p. 631, n. 47; p. 732, n. 74.

      2. The plea does not show that when the note was signed there was such an emergency as would excuse the defendant from-reading it, as was done with the letter accompanying the note, nor does the plea show any confidential or fiduciary relation between the parties, nor was the failure of the defendant to read the contract brought about by any misleading artifice or device perpetrated by the opposite party, amounting to actual fraud, such as would reasonably have prevented the party signing the instrument from reading it. Ducros v. Peoples Drug Store, 21 Qa. App. 634 (94 S. E. 897). Accordingly, as a defense setting up fraud in the procurement of the instrument, the plea was ineffective, and the note as signed must be regarded as a contract knowingly entered upon, with the result that the defendant can not be permitted to deny that she made the promise set forth by its terms. Stewart- v. Hardin, 24 Qa. App. 611 (101 S. E. 716).
    3. It is, however, a well-recognized principle of law that, as between the original parties, the consideration of a contract is ordinarily open to inquiry in order to show that it has failed, either wholly or in part, so as no longer to support the promise as made. Treating as mere surplusage the allegations of the plea seeking to annul the promise by setting' up as a defense its fraudulent procurement, it nevertheless appears that neither the principal nor the defendant surety received anything more on the instrument sued on than the cancellation of the previous note in the sum of $250. This she should have been permitted to prove, if she could, and it was error to strike the plea as failing to set forth any valid ground of defense.
    Decided June 15, 1926.
    Complaint; from Wilkes superior court—Judge Perryman. November 5, 1925.

      Colley & Colley, for plaintiffs in error.

      Norman & Norman, contra.
   Jenkins, P. J.

The plaintiff bank sued E. M. and Mrs. O. R. Amason upon a promissory note for the principal sum of $1080, claiming attorney’s fees. The first named defendant filed no plea. The other filed a plea in which she set up substantially the following facts: that the defendants gave the note; that the defendant filing the plea had previously to the present note stood security for the other defendant at the plaintiff bank for $250; that the note for $1080, here sued upon,, was sent to her by mail, with a letter requesting this defendant to sign the same in renewal; that the defendant, thinking that the note sent was in renewal of the'$250 note, signed the same and returned it, receiving nothing therefor except cancellation of the former note; and that there was no consideration whatever for the note sued upon except the cancellation of the $250 note. She further set up that owing to a defect in her eyesight she was unable to read, and that she was eighty-three years of age and unable, on account of her physical and mental afflictions, to attend to any business. She prayed that the judgment against her be limited to the said $250. The plaintiff filed a motion to strike this plea, on the ground of its insufficiency; which was done; and both defendants filed exceptions.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17033.
    AYERS v. JOHN B. DANIEL COMPANY.
    1. Where the plaintiff gave an order for a chemical for treatment of apple-trees, expressly advising the dealer of1 the irse intended, and the dealer furnished a quantity of the chemical ordered, and also, by mistake, a quantity of another chemical having a most deleterious effect upon the young fruit, foliage, and tender growth of trees when applied, and where the plaintiff, without knowing or being charged with notice of such mistake, applied the deleterious chemical to the usé intended, the crop of apples having then reached the point of development where the yield was capable of ascertainment with reasonable certainty, and such application caused great and immediate damage to the trees and fruit, killing the foliage and tender growth and causing a stated portion of the fruit to shed, and where,' in order to arrive at the extent of the injury, proof was offered to show the character of the soil, the condition of the fruit, the nature of the seasons, the character of cultivation as compared with like crops grown that year on lands near by, and during preceding years on the same land under similar conditions, and further proof was offered to show what was the actual yield from such injured trees, what would have been the probable yield but for the injury, what was the value of the fruit at maturity, - and what was the expense of completing the culture, such proof formed a sufficient basis for the jury to pass upon the damage so occasioned, and for the reasonable ascertainment of the amount thereof. It was therefore error to reject the testimony so offered, on the theory that such damages were too vague and speculative to authorize a recovery. It was likewise error to reject the proffered opinion testimony as to the value of the fruit so destroyed, and as to the damage thus occasioned to the trees.

      Damages, 17 O. J. p. 756, n. 69, 70; p. 760, n. 91; p. 1057, n. 56.
    Evidence, 22 O. J. p. 193, n. 89, 90, 94; p. 509, n. 59; p. 584, n. 36.
    Sales, 35 Cye. p. 629, n. 89; p. 650, n. 9 New.

      2. The court erred in refusing to admit the testimony of the plaintiff’s son, who as agent ordered the goods by telephone, that the person at the other end of the instrument stated that it was the named dealer, and that in so ordering the goods the witness stated to the person receiving the order the purpose for which they were to be used.
    3. It was a question for the jury to decide, under the facts and circumstances, whether the plaintiff knew, or0in the exercise of ordinary care ought to have known, that the goods he received were not the goods ordered.
    Decided June 15, 1926.
    Action for damages; from Fulton superior court—Judge Ellis. November 3, 1925.
    Application for certiorari was made to the Supreme Court.

      B. B. Lambert, Morris, Eawlcins & Wallace, for plaintiff.

      Jones, Evins, Moore & Powers, for defendant.
   Jenkins, P. J.

The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure orcextent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount .of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted. 17 C. J. 756, 757. Accordingly, where, as in the instant case, the plaintiff proves that he gave a dealer an order for a certain drug or chemical for the treatment of his apple trees, expressly advising the dealer of the use intended, and where, instead of furnishing the product ordered, the dealer furnished a certain quantity of the product ordered, and also, by mistake, a quantity of another chemical, shown by the evidence to have a most deleterious effect upon the young fruit, foliage, and tender growth of trees when applied, and where the plaintiff, without knowing or being charged with notice of such mistake, applied the deleterious product to the uses intended, and where it is shown that at the time of the application of the deleterious product to. the plaintiff’s trees the crop had reached a point of development at which the yield was capable of ascertainment with reasonable certainty, in that the trees already had in existence a crop of young apples, and where it appears that the application of the deleterious chemical caused great and immediate damage to the existing fruit, foliage, and tender growth, killing the foliage and tender growth, and causing a large and stated proportion of the fruit to shed, and where, in order to arrive at the extent of the injury, proper proof is offered to show the character of the soil, the condition of the fruit, the nature of the seasons, and the character of the cultivation, as compared with like crops grown for that year on nearby lands, and during preceding years on the same land, Under similar conditions, and where, after offering to make such comparisons by evidence, proper proof is offered to show what was the actual yield from such injured trees, and what would have been the probable yield but for the injury, and what was the value of the fruit at maturity, and what was the expense of completing their culture, such proof is a sufficient basis for the jury to pass upon the damage thus occasioned, and a sufficient basis for the reasonable ascertainment of the amount of the damage. It was, therefore, error to reject such testimony on the theory that the damages thus sought to be proved were too vague and 'speculative to be the basis of a recovery, and thereafter to grant a nonsuit. Maddox v. Stephenson, 60 Ga. 125; Southern Ry. Co. v. Morris, 119 Ga. 234 (2) (46 S. E. 85); Thornton v. Cordell, 8 Ga. App. 588 (70 S. E. 17); National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (72 S. E. 191); Nicholson v. Williamson, 29 Ga. App. 692 (116 S. E. 321); Woods v. Lewis, 30 Ga. App. 76 (116 S. E. 542). The cases relied upon by counsel for the defendant in error (Butler v. Moore, 68 Ga. 780 (45 Am. R. 508); Savannah Chemical Co. v. Bragg, 14 Ga. App. 371 (2) (80 S. E. 858); Prince v. Evans, 23 Ga. App. 660 (99 S. E. 132); Codman v. Roberds, 27 Ga. App. 559 (9) (109 S. E. 536); Stafford v. Mock, 31 Ga. App. 204 (120 S. E. 424)), in which the damages sought were adjudged to be too vague, conjectural, and speculative in character to afford a basis of a recovery, are based primarily upon uncertainty as to the cause of the alleged damages, rather than an inability to arrive at the amount. In most of these eases it was sought to recover damages on account of a crop failure, which it was alleged was occasioned by the failure of the defendant to furnish proper fertilizer. It is manifestly mere conjecture whether such a result was thus occasioned, or whether innumerable other causes, forces, and acts of commission and omission, entered into and controlled the final result, and not a question concerning which one could testify with any degree of reasonable certainty. In none of these cases was an existing crop actually and immediately destroyed. It was likewise error to reject the proffered opinion testimony as to the value of the fruit thus destroyed, and as to the damage thus occasioned to the trees. Civil Code (1910), § 5875; Allison v. Wall, 121 Ga. 822, 826 (49 S. E. 831); Southern Cotton Oil Co. v. Overby, 136 Ga. 69, 72 (70 S. E. 664).

The court erred in refusing to admit the testimony of the plaintiff’s son,, who, after testifying that as plaintiff’s agent he ordered the goods over the telephone, offered to testify that the person at the other end of the instrument stated that it was “John B. Daniel Company,” and that in ordering the goods he stated to the person receiving the order the purpose for which they were to be used. While it is true that the witness did not undertake to swear that he recognized the voice of the person with whom he talked, the cases relied upon by the defendant in error (Planters Cotton Oil Co. v. Western Union Tel. Co., 126 Ga. 621 (55 S. E. 495, 6 L. R. A. (N. S.) 1180); Stewart v. Fisher, 18 Ga. App. 519 (3) (89 S. E. 1052); Thompson v. Bank of Chatsworth, 30 Ga. App. 443 (118 S. E. 470)) are not controlling, as the identity of the person with whom the agent talked is established by the filling of the order. Consequently the notice as to the purpose for which the goods wére intended, as given with the order, should have been admitted in evidence. See also Easterling v. Bell, 29 Ga. App. 465 (2) (116 S. E. 50).

It was a question for the jury to decide, under all the proved facts and surrounding circumstances, whether the plaintiff knew, or in the exercise of ordinary care ought to have known, that the goods he received were not the goods ordered.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17040.
    Greensboro Bonded Warehouse v. Klein Manufacturing Company.
    Agency, 2 C. J. p. 587, n. 27.
    Appeal and Error, 4 O. J. p. 969, n. 56.
    Decided June 15, 1926.
    Complaint; from Greene superior court—Judge Perryman presiding. November 25, 1925.

      J. G. Faust, for plaintiff in error. J. P. Brown, contra.
   Stephens, J.

1. Where a contractor is under a contract with the owner of premises to construct a building thereon according to certain plans and specifications, and the owner is to pay for the time and material, and the contractor’s compensation is to be a certain percentage of the entire cost of the building, and where the contractor is the agent of the owner to purchase all material necessary to complete the building in accordance with the plans and specifications, it is within the apparent scope of the contractor’s authority as agent to purchase any material, although not named in the specifications, which may be suitable to, and which may reasonably be expected to be placed in, a building of the character contracted for.

2. Although the plans and specifications may not have called for paint to be placed upon the building, yet paint being a material suitable to, and which may reasonably be expected to be placed in, a building of the character contracted for, it was within the apparent scope of the contractor’s authority to purchase paint for that purpose, and in a suit by the seller of the paint to the contractor, acting as agent for the owner, the evidence authorized the verdict found for the plaintiff.

3. Under the above ruling, the power of the contractor, as agent to purchase the necessary materia], to bind the owner for the purchase money therefor is established without dispute. It follows, therefore, that the admission in evidence of a custom which permits contractors under such contracts to bind the owners by such purchases was harmless, even if error.

Judgment affi/rm.ed.

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


author: Per Curiam.

text:
    17093.
    NEWTON v. THE STATE.
    1. Where on objection and investigation the trial judge decided that certain jurors named had served on a previous jury that had tried the accused on a charge involving the same transaction, and that they were incompetent to serve in the instant ease, this court can not hold, as matter of law, that his judgment was error; although the challenged jurors were not propounded the regular questions on voir dire.
    Criminal Law, 17 C. J. p. 177, n. 88; p. 238, n. 26.
    Juries, 35 C. J. p. 300, n. 55; p. 312, n. 97; p. 324, n. 89, 91; p. 327, n. 38.

      2. Nothing in the other special assignments of error requires a reversal of the judgment.
    3. The evidence supported the verdict.
    Decided June 16, 1926.
    Making intoxicating liquor; from Jenkins superior court— Judge Strange. December 8, 1925.

      B. Lee Moore, for plaintiff in error.

      John G. Hollingsworth, solicitor-general, contra.
   Per Curiam.

1. A special ground of a motion for a new trial must be complete and understandable within itself. It must by and in itself show reversible error. When the jury in a criminal case is being selected, the accused is entitled to have put upon him all the jurors legally impaneled, unless on a principal challenge for cause it is made to appear that one or more of them could not pass upon the case with absolute fairness and impartiality. When this is made to appear to the trial judge, it is sufficient legal cause for him to set aside the incompetent jurors. “Jurors should come to the consideration of a case (especially when it is a criminal one) free from even a suspicion of prejudgment or fixed opinion upon any material fact in the issue to be tried,—as to the parties, the subject-matter, or the credibility of the witnesses.” Smith v. State, 16 Ga. App. 299 (85 S. E. 207), and cit. When on a principal challenge for cause it was objected that certain named jurors were on a previous jury that had tried the same defendant on a charge involving the same transaction (a mistrial having been declared on the previous trial), and where the judge, after an investigation, decided that the named jurors had served on the previous jury and that the charges in the two cases involved the same transaction, and that the jurors were incompetent to serve in the instant case, this court can not hold, as a matter of law, that his judgment was error. And this is true although the challenged jurors were not propounded the regular voir dire questions. See Smith v. State, supra. The two special grounds relating to jurors fail to show that the same transaction was not involved. As to that and all other questions of fact relating to the qualifications of these jurors, the judge was the trior, and his decision was final.

2. There is nothing in either of the other special grounds of the motion for a new trial that requires a reversal of the judgment.

3. There is sufficient evidence to support the verdict.

Judgment affh'med.

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


author: Per Curiam. Luke, J.,

text:
    17095.
    BARRINGTON v. DUNWODY.
    Brokers, 9 O. J. p. 522, n. 21; p. 635, n. 41,
    Decided June 16, 1926.
    Action for breach of contract; from city court of Savannah— Judge Freeman. December 12, 1925.
    Application for certiorari was made to the Supreme Court.

      McLaius & McLaws, Henry Brennan, for plaintiff.

      Mclntire, Walsh & Bernstein, for defendant.
   Per Curiam.

A majority of the court holds, upon the authority of Garfunkel v. Byck, 28 Ga. App. 651 (113 S. E. 95), that the court did not err in sustaining the demurrer and dismissing the plaintiff’s petition.

Judgment affirmed.

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

Luke, J.,

dissenting. The petition in this case was substantially as follows: (1) P. J. Dunwody is a resident of Chatham county, Georgia. (2) On the 19th day of March, 1925, petitioner entered into a written contract with the said Dunwody whereby the said Dunwody gave petitioner the exclusive selling rights to all that certain house and lot in Chatham county, Georgia, in the City of Savannah, and known upon the map in the plan of said city as 915 Maupas Avenue; a copy of'said agreement being hereto attached. (3) By the terms of the said agreement neither the owner, P. J. Dunwody, nor any person acting for him, except petitioner, had the right to sell the said property, unless they accounted to petitioner for his commission, as set forth in said agreement. (4) Petitioner fully performed his part of the contract by devoting his time to finding a purchaser for said property and advertising it for sale at his own expense. (5) Petitioner shows that without his consent said P. J. Dunwody has sold the said property to M. G. Bishop at and for the sum of $5800. (6) Petitioner further shows that defendant has never given him any notice in writing of his intention to withdraw from him the exclusive selling rights of said property, as set forth and required by the said agreement. (7) Said P. J. Dunwody has failed to account to petitioner for his commission on account of said sale to said Bishop of said property. (8) Petitioner shows that the amount of commission he is entitled to by reason of said sale is $270. (9) Petitioner has made demand upon said Dunwody for the sum of $270 as the commission as aforesaid, but he failed and refuses to pay the same. Wherefore petitioner prays judgment against said P. J. Dunwody for the sum of $270.

The copy of the contract attached to the petition was as follows:

“Savannah Peal Estate Board

“Listing Blank.

“To A. H. Barrington: In consideration of your efforts to sell the following property I hereby give the exclusive authority to sell the same. You are authorized to sell for the sum of $6,000.00, or any other price that may be agreed on hereafter, and I agree to pay you the regular commission adopted by the Savannah Peal Estate Board as noted on the back hereof, and I hereby agree to give ninety days’ notice in writing in .the event of withdrawal of the property from you for sale. Advertising to be at the discretion of the broker, and all costs to be at the expense of broker unless otherwise agreed upon in writing. I have the right to enter into this contract, and a good title will be delivered. I do yes desire the property advertised. You may put a sale sign on said property. ■The property to be sold is described as follows: 915 Maupas Avenue, 5 rooms and bath, garage and servants’ toilet. (Don’t put sign on this property.) Witness my hand and seal at Savannah, Ga., this 19th of March, 1925.

“P. J. Dunwody, Owner (L. S.)

“A. H. Barrington, Broker.”

Without objection, paragraph 8 of the original petition was stricken, and the following was substituted therefor: “Your petitioner further shows that the amount of damage that he has suffered by reason of defendant’s breach of contract in depriving your petitioner of the exclusive selling rights to said property by selling the property himself for $5800, while the contract giving your petitioner the exclusive selling rights to said property was still in force is $270, being the amount of commission that plaintiff would have received had he been allowed to make the above-described sale as he was entitled to make by the terms of the contract.”

Defendant demurred to the petition as follows: (1) The petition fails to set forth any cause of action. (2) The petition fails to show that plaintiff made sale of said property. (3) It appears from said petition that plaintiff did not make sale of said property. (4) Said contract declared upon and annexed to the petition lacks mutuality and is unilateral, for the reason that there is nothing in said contract making it obligatory upon plaintiff to make any effort to sell the property mentioned. (5) While the contract expresses the desire of defendant that the property shall be advertised, there is no obligation upon'the plaintiff to advertise it, this being entirely discretionary with plaintiff. (6) The 3d paragraph of said petition is the conclusion of the pleader, not borne out by any facts alleged or by the agreement attached to the petition. (7) The 4th paragraph fails to allege the name of the purchaser. (8) The 4th paragraph fails to allege how plaintiff advertised said property for sale. The court’s judgment was as follows: “Upon consideration of the foregoing demurrer, and of the petition as amended, the said demurrer is sustained on all grounds thereof and petition dismissed.”

The petition as amended was an action for damages for breach of contract. This being true, grounds 9 and 3 of the demurrer are, in my opinion, without merit.

The decision in the ease of Garfunkel v. Byck, 28 Ga. App. 651 (113 S. E. 95), holding that a contract the same in form and substance as the one under consideration was unilateral, is binding upon this court, and impels it to hold that this contract was originally unilateral. The question then arises as to whether or not said contract became bilateral and binding upon both parties by reason of the allegation in the petition that, “according to the terms of said agreement, he (petitioner) fully performed his part of the contract by devoting his time to finding a purchaser for said property and advertising said property for sale at his own expense.” I think it did. “Though a promise may be a nudum pactum when made, because the promisee is not bound, it becomes binding when he subsequently furnishes a consideration contemplated, by doing what he was expected to do.” Brown v. Bowman, 119 Ga. 153 (46 S. E. 410), and cit. In Hill v. Horsley, 142 Ga. 12 (82 S. E. 225), which was an action based upon a breach of a written contract not to cancel the authority of a real-estate agent to sell prior to a certain time, it was held that an allegation that, prior to the cancellation of the contract, “plaintiff, in endeavoring to sell the property in accordance with the contract, had incurred expenses and performed services with proper diligence,” supplied, as against demurrer, a consideration for the contract. “A consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise.” Civil Code (1910), § 4242. In Fontaine v. Baxley, 90 Ga. 116 (17 S. E. 1015), the court held that partial performance of a contract “would satisfy the requisites both of mutuality and of the statute of frauds.” The rule is stated in 4 Ruling Case Law, 319, par. 56, as follows: “Most authorities hold, that although a writing purporting to give a broker the exclusive authority to sell certain property, or promising him commission in case anyone else sells, without in express terms requiring him to do anything, is not signed by such broker, nevertheless if the latter enters upon the performance, and expends time, money, or effort, under the contract, it can not be said to be void for want of mutuality or lack of consideration, so as to prevent the broker from recovering his commission in case the land owner himself, or some one aside from the broker, sells the property in question.” But the plaintiff in error contends that his demurrer was good for the reason that the contract did not preclude a sale of the property by him. Section 3587 of the Civil Code (1910) lays down this rule: “The fact that property is placed in the hands of a broker to sell does not prevent the owner from selling, unless otherwise agreed.” The contract under consideration gave plaintiff “the exclusive authority to sell.” “A distinction has been raised between an exclusive agency to sell and an exclusive right to sell. Several cases in which there was merely an exclusive agency have called attention to the fact that an exclusive right was not conferred, without stating what the effect of conferring such right would be, and when that question has come squarely before the courts they have held that conferring the exclusive right to sell excluded sales by the owners themselves.” 10 A. L. R. 818. “Obviously if the broker is given an exclusive right to sell, it precludes his employer from selling in any manner other than through that particular broker’s agency. The grant of merely an exclusive agency, however, does not have the effect of preventing the owner from selling independently through his own personal efforts, as it simply secures to the broker an exclusive ‘agency,’ that is, the employer can not sell through the medium of another broker without violating the terms of his agreement and rendering himself liable therefor.” 4 B. C. L. 860, § IS. See Murphy v. Sawyer, 152 Ky. 645 (153 S. W. 991); Blumenthal v. Bridges, 91 Ark. 212 (120 S. W. 974, 24 L. R. A. (N. S.) 279); Atlantic Coast Realty Co. v. Townsend, 124 Va. 490 (98 S. E. 684). Section 3587 of the Civil Code, supra, does not conflict with the conclusion' that the contract did preclude a sale of the property by the owner. It was “otherwise agreed.”

Eor these reasons I do not agree to the judgment of affirmance.


author: Per Ctjeiam. Luke, J.,

text:
    17104.
    ROME RAILWAY & LIGHT CO. v. ROBINSON.
    Electricity, 20 O. J. p. 378, n. 88.
    Decided June 16, 1926.
    Damages; from Eloyd superior court—Judge Maddox. January 4, 1936.
    Application for certiorari was made to the Supreme Court.

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

      Porter & Mebane, contra.
   Per Ctjeiam.

It appears from the petition as amended that the alleged negligence of the defendant was not the effective and proximate cause of the homicide of the plaintiff’s husband, but that such cause was the intervening act of a separate and independent agency. It does not further appear from the petition that the intervening agency could have been reasonably anticipated or foreseen by the defendant, or that the alleged negligence of the defendant put in operation other causal forces which were the direct, natural, and probable consequences of such negligence. The petition, therefore, failed to set forth a cause of action, and the court erred in overruling the general demurrer. Higginbotham v. Rome Ry. & Light Co., 23 Ga. App. 753 (99 S. E. 638); Rome Ry. & Light Co. v. Jones, 33 Ga. App. 617 (2) (127 S. E. 786) ; General Fire Extinguisher Co. v. Daniel, 25 Ga. App. 282, 285 (103 S. E. 257), and cit.; Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906).

Judgment reversed.

Broyles, O. J., and Blood/worth, J., eoncur. Lulce, J., dissents.

Luke, J.,

dissenting. Mrs. Lura Eobinson sued the Borne Bail-way & Light Company for damages for the homicide of her husband. The trial court overruled defendant’s demurrer to the amended petition, and the defendant excepted. The petition may be summarized as follows: The residence lot of petitioner’s husband, located outside the city limits of Borne, fronted 52 feet on the west side of Cherry Street, and extended thence back in a westerly direction 230 feet to a ten-foot alley, the back side of said lot being 102 feet wide. In the extreme southwestern corner of the lot the petitioner’s husband operated a candy-factory in a frame wooden building about fifteen feet high. Ten feet north of the factory, and on said lot, within a few inches of said alley, was a wooden garage, approximately fifteen feet high. Immediately north of said lot was the lot of one McKenzie, the dividing line between the two being a five-foot wire fence jointly owned by petitioner’s husband and said McKenzie. The top wire of said fence was one eighth of an inch in diameter and extended 230 feet, the entire depth of the lot. Approximately ten years ago the defendant erected, for commercial purposes, in and along said alley, wooden poles, with cross-arms four feet.long attached thereto twenty feet above the ground. To each end of said arms was attached a wire one quarter of an inch in diameter. One of said poles was so erected near said garage that it leaned two feet over the premises of petitioner’s husband, and the wire on the eastern arm of said pole extended three feet over and across said premises. Another of said poles, erected about 200 feet north of the first-mentioned pole, at and near the southwestern boundary of said McGinnis’ lot, leaned out' and over said lot a distance of two feet, and the wire on the eastern arm of said pole extended three feet over said lot. On July 1, 1925, the day on which the petitioner’s husband was killed, the defendant was, for a consideration, furnishing him with electricity for lighting his residence. About 200 feet south of the lot of petitioner’s husband the defendant maintained in said alley a transformer, whereby an electric current of 2300 volts was reduced to 110 volts, and was then conveyed by a wire attached to said pole at said garage to the home of petitioner’s husband. On said date the defendant’s said wire, one fourth of an inch in diameter, so attached to the eastern arm of said leaning pole, extended over and beyond, and twenty feet above, said line wire-fence. The insulation was old and worn off the wire where it crossed over and above said line fence, and said condition of the wire, which had existed for two years, -was known to the defendant, but the defendant failed and refused either to repair said wire or to remove the same from over said premises. On July 1, 1935, said candy-factory accidentally caught fire, and was a mass of flames in a few minutes. Quickly and suddenly said garage caught from said factory-and also became a mass of flames. From the latter fire said pole which extended over said garage was ignited, and said wire attached to the eastern arm of said pole burned in two, fell on and across said top wire of the line fence, and charged the same with said 3300 volts of electricity. Seeing that his own buildings could not be saved, and that McKenzie’s barn and garage, located some 35 feet from said burning building, were smoking, defendant’s husband placed both hands on the top wire of said line fence (there being no gate in said fence), in order to cross over and help McKenzie. Instantly said 3300 volts of electricity carried by said wire shot through the body of petitioner’s husband and killed him. The place where defendant’s said wire fell on said line fence was approximately 35 feet from the garage of petitioner’s said husband; and the place where defendant’s wire burned in two was about 35 feet from the place where said wire fell upon said line fence. Petitioner’s husband did not know said uninsulated wire of defendant had fallen across said fence and charged the top wire thereof with electricity. Petitioner’s husband was free from negligence, and his death was caused solely by de^ fendant’s negligence: (1) in maintaining said wire three feei over, across, and above the fence and premises of said petitioner’s husband; (3) in that defendant maintained said highly charged wire in said dangerous and uninsulated condition; (3) in not repairing' said defective wire after its condition became known to defendant. By amendment the petitioner alleged that the defendant was negligent in erecting and maintaining said wire, carrying said high voltage of electricity, just over and above said combustible wooden garage, said wire being uninsulated and exposed, from the southern extremity of the lot of plaintiff’s husband to the Alabama road, a distance of 300 yards; said defendant knowing that said candy-factory and said garage, both constructed of combustible material, were liable and likely to catch fire at any time, and that in the event of said garage’s igniting, the arm of said pole extending over it would be burned, and said wire attached thereto would burn in two, fall upon said line fence, and convey said 2300 volts of electricity into said top wire.

The defendant demurred on the ground that it appeared from the allegations of the amended petition that the effective and proximate cause of the death of the petitioner’s husband was the intervening act of a separate and independent agency.

In the writer’s opinion the petition as amended set forth a cause of action and was not subject to the demurrer. Sedlmeyr v. Fitzgerald, 140 Ga. 614 (79 S. E. 469); Columbus Railroad Co. v. Kitchens, 142 Ga. 677 (83 S. E. 529, L. R. A. 1915C, 570), and cit.; Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (3) (70 S. E. 892); Heidt v. So. Bell Telephone &c. Co., 122 Ga. 474 (50 S. E. 361); Rome Railway & Light Co. v. Jones, 33 Ga. App. 617 (2) (127 S. E. 786); Dunbar v. Davis, 32 Ga. App. 192 (122 S. E. 895); So. Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Dunbar v. Hines, 152 Ga. 865 (111 S. E. 396); Corley v. Coleman, 113 Ga. 994 (39 S. E. 558).


author: Bloodwoktii, J.

text:
    17105.
    Scottish-American Mortgage Company Limited v. King Lumber and Oil Company.
    Mortgages, 27 Cyc. p. 1272, n. 24.
    Decided June 16, 1926.
   Bloodwoktii, J.

Certain persons conveyed to tlie Scottish-American Mortgage Company Limited a tract of land to secure a debt. The deed showed that contemporaneously with the signing thereof the mortgage company executed to the makers of the deed a bond for title conditioned to reconvey the title to said property to them upon the payment of the debt to secure which tlie .deed was executed. The Scottish-American Mortgage Company Limited brought suit against King Lumber Company, alleging that King Lumber Company entered upon said lands without its knowledge and consent and with full knowledge of its title, and cut and removed therefrom timber to the value of $650. To the petition a general demurrer was sustained. Weld, that the petition set out no cause of action, and in sustaining the general demurrer the court committed no error. Guin v. Wilton & Dodge Lumber Co., 6 Ga. App. 484 (65 S. E. 330) ; Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (119 S. E. 223) ; Candler v. Dodge County Lumber Co., 34 Ga. App. 289 (129 S. E. 289).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

Action for damages; from Dooly superior court—Judge Crum. December 14, 1925.

T. Hoyt Davis, for plaintiff.

Woodward & Bedding-field, for defendant.


text:
    17178.
    Lowe v. Bryant.
    Bills and Notes, 8 C. J. p. 1057, n. 99.
    Decided June 16, 1926.
    Complaint; from city court of Atlanta—Judge Beid. Decombcr 15, 1925.

      Linton 8. James, for plaintiff in error.

      Horace Bussell, William P. Kennedy, contra.
   Luke, J.

This suit was upon a promissory note. Properly construed, the

only defense offered was a plea of payment. The evidence authorized a judgment in favor of the plaintiff. Eor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodioorlh, J., concur.


text:
    17195.
    FOWLER v. RUDDER.
    The evidence being sufficient to make a case of damages for malicious arrest, the award of a nonsuit was error.
    Malicious Prosecutions, 38 C. J. p. 505, n. 31.
    Decided June 16, 1926.
    Action for damages; from Fulton superior court—Judge Bell. January 11, 1926.

      Neufville & Neufville, for plaintiff.

      Paul 8. & Anton L. Etheridge, for defendant.
   Bloodworth, J.

This action was for damages for malicious arrest. The undisputed evidence shows that the defendant Rudder paid Ben Padgett, a negro, to swear out a warrant against Fowler, another negro, charging him with carrying a concealed pistol in Fannin County, Georgia, and that before doing so Rudder knew that all Padgett knew about Fowler having a pistol was that he had one in Louisville, Ky. This is shown by the testimony of Padgett. Following the issuance of the warrant an attempt was made to indict Fowler in Fannin County, Georgia, but a “no-bill” was returned. Padgett’s testimony, properly construed as a whole, clearly shows that he knew nothing about Fowler having a pistol or of his having committed any crime in Fannin County, Georgia, and that Eudder knew this when he procured Padgett to swear out the warrant against Fowler. The evidence was sufficient to carry the case to the jury, and the court erred in granting a nonsuit.

Judgment reversed.

Broyles, G. J., and Luke, J., concur.


text:
    16963.
    United States Casualty Co. v. Matthews.
    Evidence, 22 C. J. p. 728, n. 73.
    Torts, 38 Gyc. p. 442, n. 88; p. 447, n. 98.
    Workmen’s Compensation Acts, C. J. p. 66, n. 27; p. 70, n. 54; p. 122-, n. 40.
   Jenkins, P. J.

Plaintiff in error excepts to a judgment oí the superior court sustaining an award of the industrial commission in favor of a widow, under the workmen’s compensation law. It is not disputed that the husband, on November 26, 1924, sustained a severe physical injury, arising out of and in the course of the employment covered by the insurance, by which his ankle was dislocated and certain ligaments torn. It appears tlipt prior to the injury he was in vigorous health; that the injury caused much continued swelling of the ankle, pain, and loss of sleep, resulting in an enfeebled and weakened condition of health; that he continued to receive medical treatment for the injury until he was wholly confined to his bed on December 22, complaining of pain in the eyes, and that, becoming unconscious soon thereafter, he died after two days of acute illness. The testimony of one of the physicians •who attended him in the last stages of his illness was to the effect that no satisfactory evidence of any organic trouble could be obtained; that in the absence of laboratory and modern appliances, nothing could be definitely told as to the nature of the final trouble; that it was thought at first, by the attending physicians, to be an uremic trouble, but finally it Was thought, as a matter of opinion only, to be something akin to apoplexy, to which the injured foot might have been a contributing cause. This physician testified that “if the foot had brought on apoplexy, it would have been caused by the pain and poison that his system absorbed from the foot,;” that such a result “might have happened a long time afterwards;” and that one “can not swear positively that the injury to the foot caused the death.” Held:

1. The finding of the industrial commission upon the facts can not be set aside, if there is evidence to support it. “It is conclusive and binding upon all the courts.” Maryland Casualty Co. v. England, 160 Ga. 810, 812 (129 S. E. 75).

2. What consideration expert testimony is entitled to is a question for the jury. Rouse v. State, 135 Ga. 227 (69 S. E. 180). “And especially is this true when the opinion announced by the witness is coextensive with the entire scope of the jury’s investigation, and is absolutely decisive of the only issue to bfe determined by the jury.” Hall v. General Accident Assurance Corp., 16 Ga. App. 67 (2) (85 S. E. 600).

Decided June 16, 1926.

Appeal; from Lincoln superior court—Judge Perryman. October 31, 1925.

Clement E. Sutton, for plaintiff in error.

Burnside & McWhorter, contra.

3. Under the evidence submitted in this case, it was for the commission to say, in the light of all the proved facts and surrounding circumstances, including the expert testimony, whether or not the injury set forth was the proximate cause of the death. In arriving at a conclusion upon this question they were privileged, but not compelled, to accept the expert testimony tending to show that the immediate cause of death was something akin to apoplexy. But even if they so believed, they still, under the evidence, would have been authorized to find that the apoplexy, if it did exist, might have been, and was, naturally and-unavoidably brought about by reason of the pain from the injury and the poison which the decedent’s system had absorbed from the foot, as its proximate cause. Even if, under the expert testimony, the condition of the decedent, must have been such as would predispose him to such an attack from such a cause, if such result followed naturally and unavoidably from the injury, the original .injury, and not the forces thus put into operation by it, could he regarded as the active, proximate cause of the final result. Hall v. General Accident Assurance Corp., supra. Proximate cause has been defined as the “responsible, active, operative and continuing cause, as well as the probable and natural result of, the injury.” 3 Words and Phrases (2d series), 1324. Thus, while it is true that if some efficient and independent agency intervenes to bring about a result such as would not naturally have flowed from the original act or cause, the result thus occasioned can not be said to have been proximately caused by such original act, still, in order fqr this rule to apply, such intervening agency must be independent in character, so as to break the natural sequence of results. If the original act be such as to put other forces in operation so as naturally and unavoidably to bring about the existence of the intervening agency, its effect, or result, can still be properly attributed to the original cause as the proximate cause.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16973.
    CENTRAL OF GEORGIA RAILWAY CO. v. BARNETT et al.

    1. On exceptions to the refusal of a new trial after verdict for damages by homicide of plaintiff’s wife, resulting from a collision of a locomotive with an automobile on a crossing of a railroad and a street in a town, held:

    (а) Allegations of negligence on the part of the defendant railroad company in not providing automatic gates or a watchman at the crossing were not specially demurrable, in view of the facts and circumstances alleged in connection. Testimony supporting such allegations was admissible; and it was not error to submit such issue to the jury.
    (б) It was for the jury to decide whether the failure of the driver of the automobile to look for the approach of the train before reaching the crossing constituted negligence, and to determine the question of proximate cause, and whether the plaintiff by ordinary care could have avoided the consequences of the defendant’s negligence as alleged.
    (c) The court’s instruction to the jury as to burden of proof and preponderance of evidence, relatively to the question of negligence, was not error.
    (d) There was no error in refusing to charge in the language requested, as to a railroad-track being a place of danger, and the obligation of one driving thereon to know of the dangers incident to operation of trains on the track.
    2. The complaint that the instruction dealing with comparative negligence put upon the defendant the burden of showing negligence on part of both plaintiffs, one of' them being an infant incapable of negligence, is not sustainable.
    3. Reading in charge the entire statute known as the blow-post law was not confusing on the ground, as alleged, that parts of it were inapplicable. This did not constitute error requiring a reversal.
    4. Where the court charged fully with regard to the driver’s (plaintiff’s) duty to exercise ordinary care, the instruction that section 4426 of the Civil Code, read to the jury, “applies only where the defendant’s negligence became apparent to the person injured, or where by the exercise of ordinary care he could have become aware of it, and he therefore failed to exercise ordinary and reasonable diligence to avoid the consequences of the defendant’s negligence,” was not subject to the exception that it restricted and confined to the deceased wife of plaintiff the duty of discovering the negligence of the defendant.
    5. The court’s instruction was not erroneous as argumentative and as unduly stressing the theory that the negligence of the plaintiff, if shown, might not be the proximate cause of the injury.

      Appeal and Error, 3 C. J. p. 862, n. 21; p. 863, n. 27; 4 C. J. 569, n. 56; p. 871, n. 6.
    Deaths, 17 C. J. p. 1314, n. 75.
    Evidence, 22 C. J. p. 68, n. 43; p. 686, n. 57.
    Negligence, 29 Cyc. p. 561, n. 34; p. 635, n. 8; p. 639, n. 4, 7; p. 645, n. 50.
    Railroads, 33 Cyc. p. 1067, n. 79; p. 1053, n. 86; p. 1071, n. 8; p. 1081, n. 81, 82; p. 1102, n. 24; p. 1117, n. 91; p. 1137, n. 23; p. 1139, n. 31.
    Trial, 38 Cyc. p. 1650, n. 61; p. 1711, n. 19; p. 1785, n. 89, 90.

      6. Mortality tables having been admitted in evidence without objection, a correct instruction as to the use of them was no ground of exception,
    7. The court having correctly and fully charged on the meaning of the motor-vehicle law of 1921, it was not error to refuse the request for instruction thereon.
    8. An irrelevant but harmless statement in testimony was no cause for reversal. A complaint that it was harmful because of language used by counsel in argument to the jury, where no objection or motion was made at the time of the argument, can not be considered.
    9. Where the locomotive engineer testified that he could not apply the emergency brake on discovering the automobile, because the service brake had already been applied, it was competent to show, on cross-examination of the defendant’s conductor, an experienced trainman, that it would have been possible to avoid the use of the service brake by slackening speed on approaching the crossing, and thereby make the emergency brake available for use.
    10. The verdict was authorized by the evidence, and can not be set aside as excessive in amount, no bias or prejudice of the jury being indicated.
    Decided June 16, 1926.
    Damages; from Bulloch superior court—Judge Strange. October 3, 1935.
    Application for certiorari was made to the Supreme Court.

      Deal & Renfroe, Howell Gone, A. S. Bradley, for plaintiff in error.

      R. Lee Moore, Anderson & Jones, Hitch, Denmark & Lovett, contra.
   Jenkins, P. J.

This was a suit against a railway company, brought jointly by the husband and the infant child, for the full value of the life of the deceased wife and mother, who was killed by a collision between the defendant’s locomotive and an automobile driven by the husband, at a grade crossing in the City of Statesboro, Georgia. The petition alleged: that the defendant company was negligent in approaching the crossing with its cars at an excessive rate of speed, in failing to maintain a lookout while approaching the same, in failing to toll the bell as required by the statute, and in failing to maintain an automatic gate or watchman at the crossing, this being alleged to be negligence in view of the fact that the crossing was one of the principal thoroughfares in a city of 5,000 inhabitants, along which there was a constant stream of traffic on foot and in vehicles, and where the approach to the crossing was obscured by a row of trees, telegraph-poles, telephone-poles, a car-house, and a string of freight-ears lined along an intervening elevated side-track running parallel to the main line. Defendant demurred to the allegations setting forth the last-mentioned ground of negligence, the demurrer was overruled, and exception is taken thereto, and to the admission of testimony supporting this allegation of negligence, and to the charge of the court in submitting such question of negligence to the jury. On the trial of the case the evidence was in sharp conflict upon the questions of fact raised' by each of the grounds of negligence set up. The evidence was also in conflict as to the speed with which the automobile approached the crossing, there being some testimony going to show that the plaintiff approached the crossing at a speed greatly in excess of that permitted by law. The plaintiff who drove the car testified that he left a filling-station approximately 375 feet west of the cross-' ing, at a speed of ten or twelve miles per hour, and that as he approached the crossing he retarded the speed of the car until it came almost to a standstill, and that at the time of the collision the automobile was not traveling more than two or three miles per hour. This plaintiff further testified that he was unaware of the approach of the train until just at the instant of the collision; he admitted that he made no effort, prior to reaching the crossing, to look down the track in order to ascertain if a train was approaching.

Under the law in force in this State, where damages are proved to have resulted to the plaintiff by the operation of the cars of a defendant railway company, a presumption of negligence arises against the defendant in respect of each of the negligent acts charged, and the plaintiff is entitled to recover the damages proved to have resulted to him on such a prima facie case, unless the defendant shall carry the burden of showing that the damage was done by plaintiff’s consent, or was caused by his own negligence, or that the defendant was not actually guilty of the negligence charged, or, if so, that the plaintiff could have avoided its consequences by the exercise of ordinary care after it had or should have become apparent. Even if it be made to appear that the negligence of the plaintiff contributed in some less degree to the injury, he is still entitled to recover, under the doctrine of comparative negligence, in an .amount diminished in the proportion of the lesser default attributable to him. Questions of negligence, in-eluding such questions of comparative negligence, questions as to what negligence constitutes the proximate cause of the injury, and questions as to whether the plaintiff could have avoided the consequences of defendant’s negligence by the exercise of ordinary diligence, are such as lie peculiarly within the province of the jury to determine. L. & N. Railroad Co. v. Stafford, 146 Ga. 206 (91 S. E. 29); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413 (91 S. E. 517). "While it is true that demurrers to petitions have been properly sustained in cases so palpably plain and indisputable that no interpretation could be reasonably entertained but that the facts set forth divested the plaintiff' of a right of action (Ga. Pacific Ry. Co. v. Richardson, 80 Ga. 727, 7 S. E. 119; Brinson v. Davis, 32 Ga. App. 37, 122 S. E. 643), it has nevertheless been stated as a general rule, that “ except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, the question of what acts do or do not constitute negligence is for determination by the jury, and it is error for the presiding judge to instruct them what ordinary care requires should be done in a particular case.” Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108 (51 S. E. 29); Georgia Ry. & Power Co. v. Shaw, 25 Ga. App. 146 (102 S. E. 904); Davis v. Whitcomb, 30 Ga. App. 497 (2) (118 S. E. 488); Payne v. Chambliss, 27 Ga. App. 374 (108 S. E. 472).

Under the principles of law set forth above, the court did not err in overruling the special demurrer to the allegations of the petition charging negligence on the part of the defendant in failing to provide automatic gates or a watchman, in view of the particular facts and circumstances alleged in connection therewith, or in admitting the testimony supporting this allegation of negligence, or in submitting sirch questions of negligence to the jury.

The verdict can not be set aside on the ground that it is contrary to law as being without evidence to support it, for the reason that the plaintiff admitted that he did not look for the approach of the train prior to reaching the crossing. Under the rules stated above, it was for the jury to say whether such failure constituted negligence, as well as to determine the question of proximate cause, and the question as to. whether the plaintiff could have avoided the consequences of defendant’s alleged negligence.

The court did not err in charging the jury as follows: “Now, then, if by the superior weight of the evidence the plaintiffs have established that Mrs. Corinne Patterson Barnett was injured and that as a result of these injuries she died, and that they are entitled to sue for damages consequent thereon, and that these injuries resulted by the running and operation of the train of the defendant railroad company, then they would be entitled to recover, if the injuries were caused directly by the negligence of the railroad company, unless the railroad company carries the burden of establishing to you, not beyond a reasonable doubt, or to a moral and reasonable certainty, but by the superior weight of the evidence, the preponderance of the testimony, that the agents, servants, and employees of the railroad at the time were exercising ordinary care,—that is, were not negligent.” Defendant contends that, since the burden of proof rests upon a plaintiff to prove his case before he can recover, it was error to require the defendant to disprove the negligence charged against it, by a preponderance of the evidence, the defendant’s contention being that in a case where the testimony upon the question of its negligence is equally balanced, and does not preponderate either one way or the other, the plaintiff carrying the original burden of proof could not recover. Generally the burden of proof is upon the plaintiff, and this original burden remains with him throughout the trial. Thus, whatever it is necessary for the plaintiff to prove as a matter of fact in order to make out a prima facie case must be shown and must continue to be shown, without any shift of the burden, to the satisfaction of the jury, by a preponderance of the testimony throughout the trial; but when, in the opinion of the jury, this burden has been successfully carried, and continues to be carried by a preponderance of the testimony, the statute thereupon imposes upon the defendant the counter-burden of disproving, by a preponderance of the testimony, not the facts proved in order to establish the plaintiff’s prima facie case, but the presumption of negligence thus made to arise as a legal consequence of such proof. It is upon these questions relating to its defense, and not upon the issues necessary to plaintiff’s prima facie case, that the defendant is required to furnish a preponderance of the evidence. If the defendant, in seeking to comply with the obligation imposed-upon it by the statute, submits evidence for the purpose of overcoming the presumption of negligence thus raised against it as a matter of law, but fails to carry the burden of disproving the negligence charged, and the evidence upon that question fails to preponderate either one way or the other, then the unimpaired presumption would continue to control, and under it the defendant would be liable as if no effort had been made to rebut it. Ocilla So. Ry. Co. v. McInvale, 26 Ga. App. 106 (2) (105 S. E. 451); G. S. & F. Ry. Co. v. Young Investment Co., 119 Ga. 513 (46 S. E. 644).

The error complained of in the twelfth ground of the motion for new trial consists in the failure of the court to charge the jury, as requested in writing by the defendant, that “A railroad-track is a place of danger, and one who goes thereon, or drives thereon a ear in which others are seated as passengers, is bound to know that he is going into a place where he and those entrusted to his care are subject to the dangers incident to the operation of trains upon that track, and, no matter where the track is located, any person who goes thereon or drives an automobile thereon is bound to know that he is going upon a place where his presence, and the presence of those riding in his car, would be attended with more or less danger.” There was no error in refusing to charge as requested. Western & Atlantic R. Co. v. Jarrett, 22 Ga. App. 313 (4) (96 S. E. 17); Atlanta & West Point R. Co. v. Miller, 23 Ga. App. 347 (98 S. E. 248).

There was no error in the charge of the court complained of in grounds 6 and 8 of the motion for new trial. The only complaint made is that the court, in charging upon the exercise of ordinary care by plaintiff, and in dealing with the doctrine of comparative negligence, used the word “plaintiffs” instead of “plaintiff, Eoy E. Barnett,” plaintiff in error contending that such a charge put upon defendant the burden of showing negligence on the part of both plaintiffs, one of them being an infant incapable of being guilty of negligence. The court correctly charged the jury upon the law of comparative negligence and the duty to exercise ordinary care resting upon the plaintiffs (Central of Ga. Ry. Co. v. Larsen, supra), and the jury will be taken to have understood the word “plaintiffs’ ” in the more rational sense of “plaintiff’s” (there being no difference in the sound of “plaintiffs’ ” and “plaintiff’s”); and in any event the use of such word was not calculated to mislead the jury, as it was not disputed that E. E. Barnett Sr. drove the car, and there was no evidence or contention with reference to a lack of ordinary care on the part of the five-year-old infant plaintiff. Especially is this true since the court instructed the jury that if the driver of the automobile was violating the statute with regard to the operation of automobiles upon approaching railway crossings, it would amount to negligence per se.

The 7th ground of the motion complains of the charge of the court on the so-called blow-post law, the error complained of being that the court charged the entire statute, and that portions of it were inapplicable to the facts in the case on trial. Under the rulings of this court, such a charge was not confusing, in view of the language of the statute itself, and reading it in its entirety does not constitute reversible error. Georgia R. &c. Co. v. Wallis, 29 Ga. App. 706 (116 S. E. 883); Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (3) (118 S. E. 452); Western & Atlantic R. Co. v. Mathis, 32 Ga. App. 309 (122 S. E. 818).

There was no error in the excerpt from the charge as complained of in the 9th ground of the motion for new trial, the error alleged being that the court read section 4426 of the Civil Code (1910) and stated that it “applies only where defendant’s negligence became apparent to the person injured, or where by the exercise of ordinary care he could have become aware of it, and he therefore failed to exercise ordinary and reasonable diligence to avoid the consequences of the defendant’s negligence,” the error complained of being'that the court restricted and confined to the deceased alone the duty of discovering the negligence of the defendant, the contention of the defendant being that the injury was due to the negligence of the plaintiff, the driver of the automobile. Elsewhere in his charge to the jury the court fully instructed the jury with regard to the duty of exercising ordinary care, resting upon the plaintiff. See Davis v. Whitcomb, 30 Ga. App. 497 (15 b) (supra).

The charge of the court complained of in ground 10 of the motion for a new trial, consisting of an excerpt from the opinion by the Supreme Court in L. & N. Railroad Co. v. Stafford, 146 Ga. 206, 209 (91 S. E. 29), was not erroneous as being argumentative in that it unduly stressed the theory that the negligence of the plaintiff, even if shown, might not be the proximate cause of the injury. The court had previously charged the jury clearly and fully upon the questions of negligence, contributory negligence, comparative negligence, and proximate cause.

Ground 11 of the motion for a new trial complains that the court erred in instructing the jury with reference to the use of mortality tables which had been admitted in evidence without objection from the defendant; it being contended, not that the court charged incorrectly upon this subject, but that the court should not have charged upon it at all. There being evidence tending to show the value of the wife’s services, and the tables having been admitted without objection, it can not be said that the instructions to the jury upon the use of such tables, which seem to have been modeled after the instructions formulated in Florida Central &c. R. Co. v. Burney, 98 Ga. 1 (26 S. E. 730), were calculated to confuse the jury. So. Ry. Co. v. Scott, 128 Ga. 244 (57 S. E. 504). Especially is this true when the court instructed the jury that they were not bound by the tables, but they might look to the other evidence to ascerbain the plaintiff’s damage, and that they would ascertain, under the evidence, the age of the deceased, the annual value of her life, her health, and all the facts and circumstances surrounding her, and determine for themselves her expectancy in years and the damage sustained by the plaintiff, if any.

The court fully and correctly charged the jury upon the meaning of the motor-vehicle act of 1921, which requires the driver of the vehicle to have it “at all times . . under immediate control” on approaching or traversing a curve or railroad crossing, as explained by this court in Central of Ga. Ry. Co. v. Burton, 33 Ga. App. 199 (125 S. E. 868). It therefore was not error to refuse the request to charge on this subject.

It was not reversible error to permit the plaintiff to testify, over objection of the defendant, “I am not a native of Savannah, but was born in Hagan,' Tattnall County, Georgia,” such evidence being in itself harmless, even though it may have been irrelevant. The harmfulness of the evidence complained of by the defendant consists in the alleged language used by counsel for the plaintiff in his argument to the jury. It does not appear that the defendant complained of this argument at the time, or that any motion was made fox the declaration of a mistrial on account of any alleged improper argument of counsel; and the exception on the ground that such evidence, even though harmless in itself, was harmful because of such improper argument can not now be considered.

The court did not err in admitting, over the objection of the defendant, the testimony of its conductor, on cross-examination, to the effect that it would have been possible to avoid the use of the service brake on the engine by slackening the speed of the train on approaching' the crossing, thereby making tire emergency brake available for use. The witness was an experienced trainman, offered by the defendant, and it was competent for him to testify that if the train had been operated in some way other than that in which it was operated by the engineer, according to his testimony, the emergency brake would have been available, the engineer having testified that he could not apply the emergency brake on discovering the automobile, because the service brake had already been applied.

It is contended in the remaining ground of the motion for a new trial that the verdict should be set aside because it is excessive and is the result of prejudice and bias. The verdict, while large, is authorized by the evidence, and, having the approval of the trial judge, it will not be set aside on the ground that it is excessive, there being nothing in the record indicative of prejudice or bias on the part of the jury. Realty Bond & Mortgage Co. v. Harley, 19 Ga. App. 186 (91 S. E. 254).

Judgment affirmed.

Stephens and Bell, JJ., concur.