text:
    17934.
    Garbutt & Donovan v. Barksdale-Pruitt Junk Company.
    Landlord and Tenant, 35 O. J. p. 970, n. 72; p. 971, n. 81; p. 977, n. 80; p. 1001, n. 65; p. 1002, n. 73, 78; p. 1003, n. 82; 30 O. J. p. 369, n. 24, £6; p. 378, n. 39, 40, 41, 44, 45; p. 379, n. 49, 54.
   Jenkins, P. J.

1. A lease of real estate for a-term less than five years passes no estate out of the landlord, the tenant has only a usufruct, and he can neither sublet the premises, nor convey his usufructuary interest, nor assign his lease without the landlord’s consent. Sealy v. Kuttner, 41 Ga. 594; Hooper v. Dwinnell, 48 Ga. 442, 445; Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178); DeFoor v. Stephens, 133 Ga. 617, 619 (66 S. E. 786). If, with the consent of the landlord, the tenant subrents the rented premises, the subtenant becomes the tenant of the original tenant, who is entitled to proceed against him for rent, under the agreement made between those parties (Boyd v. Kinzy, 127 Ga. 358, 56 S. E. 420); but the status of the original tenant with the owner remains the same, and the original contract between them remains unimpaired. In such a case the subtenant does not become the tenant of . the owner, and the owner can not proceed against him for rent, although in the case of agricultural lands ho would have a special lien on the crops raised by the subtenant. Hudson v. Stewart, supra; McConnell v. East Point Land Co., 100 Ga. 129, 134 (28 S. E. 80). If, without the consent of the landlord, the tenant should undertake to sublet the premises, the landlord, not being bound thereby, may ignore such unauthorized agreement without in any wise affecting his rights under his contract with the original tenant, or he may refuse to recognize the right of possession in the. subtenant and proceed to expel him from the rented premises as a more intruder; or he may, at his option, > affirmatively elect to treat such unauthorized subtenant occupying his premises as his own tenant instead of the original tenant, in which cáse the relationship of landlord and tenant between the owner and the original tenant ceases. Such an election on the part of the landlord owner whereby the new unauthorized subtenant is substituted as 'tenant for the original tenant may be effected by an expressed recognition by the owner of the subtenant as his tenant, or it may be implied from such' affirmative acts and conduct as will clearly indicate an intention on the part of the landlord to effect such a substitution. Mere acquiescence in the subtenant’s possession of the rented premises under his agreement with the original tenant does not constitute such an election; nor will the mere acceptance of payments by the subtenant in aecoi'dance with the terms of the original contract made with the original tenant be held to constitute an abandonment of the contract with the original tenant and the substitution of a new agreement with the subtenant. Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983); Americas Manufacturing &e. Co. v. Hightower, 3 Ga. App. 65 (59 S. E. 309); Hooks v. Bailey, 5 Ga. App. 211 (62 S. E. 1054); Mendel v. Barrett, 32 Ga. App. 581 (124 S. E. 107). In order for the acceptance of such payments as made by an unauthorized subtenant to have the effect of establishing such a new agreement, it must clearly appear that it was the intention of the landlord to accept the payments as made by the subtenant on his own behalf as the owner’s tenant, instead of through him for and on behalf of the original tenant.

Decided September 12, 1927.

Distraint; from Chatham superior court—Judge Meldrim. November 8, 1926.

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

Travis & Travis, for defendant.

2. It not appearing in the instant ease that the landlord had ever recognized the defendant partnership as his tenant, and it not appearing that the payments for rent by partnership checks as made by the member of the partnership with. whom' the original written contract of tenancy was made were received and accepted as payments made by the partnership as tenant, the court did not err in granting a nonsuit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17648.
    Gilmore v. Chevrolet Motor Company et al.

    Agency, 2 C. J. p. 904, n. 77; p. 905, n. 82, 80; p. 900, n. 87.
    Dismissal and Nonsuit, 18 C. J. p. 1187, n. 60; p. 1188, n. 69.
    Pleading, 31 Cyc. p. 289, n. 60.
   Stephens, J.

1. Where a petition alleges that certain tortious acts were committed by the defendant through its authorized agent, and specifically alleges the duties of the agent, and where it does not appear that the acts performed by the agent were within the scope of his alleged duties, the petition fails to set out a cause of action, and is therefore not good as against a general demurrer.

2. In a petition which alleges that the defendant, the Chevrolet Motor Company, an automobile manufacturer having an office and place of business and a duly authorized agent and representative in the City of Atlanta, through its named agent, conspired with other named persons to defraud the plaintiff by inducing him, to his loss and damage, to invest a large sum of money in an insolvent local corporation formed to act as agent in selling automobiles manufactured by the defendant, allegations that the duties of the defendant’s agent consisted in acting for it in several States, including the State of Georgia, as its representative “to secure agents, dealers, and persons to handle Chevrolet motor-cars,” and that he “was authorized to represent to such persons, [in' order] to secure them as agents and dealers, the character of the automobile business, the kind and character and condition of established agencies, the merchandise quality and value of cars, and all questions which involve the establishment of, or the taking over of the business as dealers in Chevrolet motor-cars,” allege authority only to procure agents and dealers to handle and sell the defendant’s cars and to give to such dealers and agents all information necessary to the conduct of such business, and do not allege any duty or authority in the agent to act for and in behalf of the defendant in financially organizing agencies to handle the defendant’s cars, and do not allege any authority in the agent to act for the Chevrolet Motor Company in making representations to any person to induce him to come to the financial assistance of, and invest his money in, any agency organized for the purpose of handling and selling the defendant’s cars.

Decided September 20, 1927.

Rehearing denied October 1, 1927.

Action for damages; from Fulton superior court—Judge E. D. Thomas. July 27, 1926.

Application for certiorari was denied by the Supreme Court.

Hewlett & Dennis, J. K. Jordan, for plaintiff.

Chalmers & Siewarl, Candler, Thomson & Hirsch, Little, Powell, Smith & Goldstein, J. J. Garland, J. S. Chambers, for defendants.

3. Allegations in the petition to the effect that the alleged agent acted for and in behalf of the defendant when committing the alleged tortious acts complained of are not, when construed in connection with specific allegations as to the duties of the agent, to be taken as alleging that the alleged agent, when acting for and in behalf of the defendant, had authority to so act and bind the defendant as its agent.

4. The petition failed to set out a cause of action, and was properly dis missed on general demurrer.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    17654.
    Poland et al. v. Osborne Lumber Company et al.

    Boundaries, 9 O. J. p. 286, n. 92.
    Evidence, 22 O. J. p. 912, n. 23; p. 929, n. 75; p. 1042, n. 38; p. 1045, n. 57.
    Witnesses, 40 Cyc. p. 2770, n. 35; p. 2775, n. 58.
   Stephens, J.

1. Parol testimony as to the contents of a written instrument is inadmissible where the instrument itself is not admissible. A plat of land which is not shown to be official or correct is not admissible in evidence. Maples v. Hoggard, 58 Ga. 315; Parker v. Salmons, 113 Ga. 1167 (3) (39 S. E. 475). Testimony of a witness that hé has several times seen the “title deeds and plats” is insufficient to establish the correctness of the plat, and the plat itself would be inadmissible. It follows that where the plat, without having been recorded, was destroyed by fire, parol testimony of the witness as to the contents of the plat is inadmissible. The court properly excluded the testimony offered as to the contents of the plat.

2. “A witness can not be impeached by proving contradictory statements previously made by him as to matters not relevant to his testimony and to the ease.” Hudgins v. Bloodworth, 109 Ga. 197 (34 S. E. 364). Testimony of a witness that he was one of the jurors upon a former trial of the case and that the jury had no trouble in reaching a verdict is not as to matters relevant to the case. Testimony of another witness in contradiction of this statement and showing that the jury had some difficulty in reaching a verdict was properly excluded.

Decided September 20, 1927.

Processioning; from Lincoln superior court—Judge W. L. Hodges presiding. August 38, 1936.

William H. Fleming, for plaintiffs in error.

Callaway & Howard, contra.

3. This being an issue tried in the superior court upon a protest filed to the return of processioners, where the jury found in favor of the line as contended for by the protestants, and the evidence being conflicting as to which was the true line, and it not being conclusively established without dispute that the line run by the processioners had been acquiesced in for any period of time by the respective owners of the adjoining tracts, or that the tract of land in dispute had been in actual possession of the landowners relying upon the return of the processioners under a claim of right for more than seven years, and the evidence authorizing the inference that the line claimed by the protestants was the true line, the verdict found for the protestants was authorized. See, in this connection, the former report of this case in this court, 34 Ga. App. 105 (128 S. E. 198).

Judgment affirmed.

Jenlúns, P. J., and Bell, J., concur.


text:
    17705.
    Roper-Strauss-Ferst Company v. Carolina Portland Cement Company.
    Sales, 35 Cyc. p. 628, n. 72; p..629, n. 78; p. 631, n. 12; p. 649, n. 94; p. 650, n. 95.
    Trial, 38 Oye. p. 1724, n. 93.
   Stephens, J.

1. In a suit by a seller against the purchaser to recover the purchase price for property delivered to and accepted by the purchaser under the terms of the contract, and also to recover the difference between the contract price and the price brought on the'resale of other property, tendered by the seller and rejected by the purchaser, where it appears from the evidence that the property tendered and rejected was shipped prematurely and before the defendant was bound to receive it under the terms of the contract, and where the evidence authorizes the inference that the defendant waived the prematurity of the shipment and rejected it solely upon the ground of its nonconformity as to quality with the provisions of the contract, and where the evidence authorizes the inference that the property shipped did not in quality conform to the provisions of the contract, and where there is evidence to the effect that, with the knowledge of the plaintiff, the defendant bought it for the. purpose of resale, there was presented an issue as to whether the defendant was entitled to recover against the plaintiff under a counterclaim for profits inhering in the defendant’s contract of resale. Carolina Portland Cement Co. v. Roper-Strauss-Ferst Co., 33 Ga. App. 511 (4) (126 S. E. 860). The court did not err as against the plaintiff in submitting this issue to the jury, or in admitting in evidence the defendant’s contract of resale, or in admitting evidence tending to prove the defendant’s profits inhering in the contract of resale.

Decided September 20, 1927.

Complaint; from Fulton superior court—Judge Ellis. September 7, 1936.

Paul S. JMheridge, Augustine Sams, for plaintiff.

McDaniel & Neely, for defendant:

2. An assignment of error upon the admission Of certain evidence over the objection that the witness was not qualified to testify as to the market price of the commodity referred to, or as an expert upon the subject, has no basis in fact where it does not appear from the testimony objected to that the witness delivered any testimony at all as to the price of the commodity.

3. A charge by the court that the jury should give the same consideration to testimony given by depositions or interrogatories as they give to testimony delivered from the witness stand, except that in the case of testimony given by depositions or interrogatories the jury have not the opportunity to see the witnesses and judge their manner and deportment, is not subject to the objection that it instructed the jury that less credence is to be given to the testimony of witnesses who testified by depositions or interrogatories than is given to witnesses ■ who appeared on the witness stand.

4. The court clearly, and fairly to the plaintiff, submitted the issues to the jury, and no error appears.

5. In addition to the defendant’s counterclaim for profits inhering in the contract of resale, the defendant set off against the purchase price of the articles delivered and accepted by him certain cash payments made by him to the plaintiff upon the purchase price of the property accepted, and certain expenditures made by the defendant for the plaintiff in an amount in excess of that admitted by the defendant to be due upon the purchase price of the property accepted. The evidence in support of the defendant’s pleas .authorizes the verdict in the amount found in favor of the defendant against the plaintiff.

Judgment affirmed.

Jenhms, P. amd Bell, J., eonew.


text:
    17751.
    Powell Company v. Cowart.
    Sales, 35 Cyc. p. 399, n. 35; p. 401, n. 40; p. 404, n. 49, 51.
    Decided September 20, 1927.
    Attachment; from Calhoun superior court—Judge Custer. November 1, 1926.

      Lowrey Stone, for plaintiff. A. L. Miller, for defendant.
   Stephens, J.

1. Where a specified article is sold under its patent or trade name,—as a particular set of books published by the seller, described and designated as “Encyclopsedia of Evidence,” and another particular set of books described and designated as “Standard Encyclopsedia of Procedure,”—there is no implied warranty in the con- ' tract of sale that the article sold is suitable to the particular purpose of the buyer,—as the use of the books by the buyer in the practice of law,—although the buyer’s purpose at the time of the execution of the contract may be known to the seller. There is, however, an implied warranty that articles sold shall be the specific articles described and shall conform to the description,—in this case that the articles sold arc the seller’s own publications entitled the “Encyclopedia of Evidence” and the “Standard Encyclopsedia of Procedure,” and that they conform to the description in that the one is an encyclopedia of evidence and the other a standard encyclopedia of procedure, and that the articles are of good material and workmanship according to the description. Burdick on Sales (3d ed.), 126, § 177. Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363 (12) (58 S. E. 222).

2. In this suit by the seller against the purchaser to recover the purchase price of books described as above, which were sold and delivered to the purchaser, a plea filed by the defendant, that at the time of the execution of the contract he was a practicing lawyer in the State of Georgia and bought the books for the purpose- of being used by him in the practice of law, that this purpose was known to the seller, and that the books were useless for such purpose, set out no legal defense under the contract. The court therefore erred in not sustaining the plaintiff’s demurrer to the plea.

Judgment reversed.

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


text:
    17675.
    Atlantic Coast Line Railroad Company v. Ousley Company.
    Carriers, 10 C. J. p. 270, n. 25; p. 297, n. 71. 72.
    Venue, 40 Cyc. p. 81, n. SO; p. S4, u. 94.
   Stephens, J.

1. Where a consignee refuses to accept goods from a carrier who offers delivery, it is the duty of the carrier to exercise due diligence in notifying the consignor of the consignee’s refusal to accept the goods. Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410 (2) (77 S. E. 647, 45 L. R. A. (N. S.) 18); American Sugar Refining Co. v. McGhee, 96 Ga. 27 (21 S. E. 383). Where goods are consigned under an order-notify bill of lading, the consignor is not chargeable with notice of the failure of the order-notify consignee to accept the goods, and the carrier is under a duty to exercise due diligence in notifying the consignor of such failure of the order-notify consignee. Stoddard Lumber Co. v. Oregon-Washington R. &c. Co., 84 Or. 399 (165 Pac. 363, 4 A. L. R. 1275, and eit.).

Decided September 21, 1927.

Damages; from city court of Yaldosta—Judge Cranford. September 15, 1926.

Bennet & Branch, Gopeland & Dulces, for plaintiff in error.

Little & Diclcwson, contra.

2. Where, as a result of the carrier’s failure to give such notice to the consignor, the goods deteriorate in value, to the damage of the consignor, the carrier is liable in damages therefor. Since, as respects an ■ interstate shipment, the Carmack amendment fixes upon the initial carrier liability under the contract for the negligence of the delivering carrier, the petition, in a suit by the consignor against the initial carrier setting out the above facts, sets out a cause of action. See the case of Stoddard Lumber Co. v. Oregon-Washington R. &e. Co., supra.

3. Where the subject-matter of the suit was a carload of watermelons, and the petition described the car by its number and the road to which it belonged, and alleged the average weight of the melons, the petition alleged sufficient data by way of description of the property alleged to have been damaged, and the petition was not subject to demurrer because it failed to allege the number of watermelons in the car.

4. The bill of lading sued on and under which the shipment was made, although it was issued in exchange for another bill of lading, was issued in the county in which the suit was brought, and the court in which the suit was brought had jurisdiction.

5. The court did not err in overruling the demurrers to the petition.

Judgment affirmed.

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


text:
    17768.
    Horine et al. v. Cox.
    Adjoining Landowners, 1 C. J. p. 1205, n. 24.
    Evidence, 22 O. J. p. 179, n. 42, 45; p. 181, n. 70; p. 214, n. 42.
    Trial, 38 Oye. p. 1350, n. 3; p. 1784, n. 86; p. 1786, n. 97.
   Stephens, J.

1. In a suit by a landowner against adjoining landowners for damage alleged to have been caused to the plaintiff’s property both in a .diminution of its market value and in a diminution of its rental value by reason of the defendants’ elevating their own lot and turning back upon the plaintiff’s lot the water which would naturally drain therefrom upon the defendants’ lot, and also in committing certain trespasses upon the plaintiff’s lot, a charge by the court that if the wrongful acts of the defendants caused an increase in the market value of the plaintiff’s lot, the defendants would nevertheless be liable for the actual damages resulting from the injuries to the property, could, not have been construed by the jury as an instruction to disregard all evidence that showed an increase in the market value of the property, where the court in the same connection instructed the jury that there could be no recovery for the loss in the market value if the market value of the property had in fact increased as a result of the defendants’ acts, but that “the amount of the increase could not be set off against such actual damages to the rental value or use so as to prevent a recovery on that element.”

Decided September 21, 1927.

Damages; from Fulton superior court—-Judge Pomeroy. September 27, 1926.

Paul 8. Etheridge, J. A. Noyes, for plaintiff in error.

G. N. Bynum, contra.

2. Where the plaintiff claimed damages for a diminution in the rental value of the property, evidence as to the amount received by the plaintiff as rent for one half of the house upon her property, prior to the commission of the defendants’ alleged wrongful acts, was relevant as tending to establish-the rental value.

3. Where a witness for the defendants had testified that the acts of the defendants which were complained of had increased the market value of the plaintiff’s property, the exclusion by the court of further testimony from the same witness to the effect that the entire neighborhood had been rendered more desirable by the acts of the defendants complained of, even if error, was not harmful to the defendants. Had this evidence been admitted, it could have added nothing to the testimony of the witness.

4. The testimony of a witness that his opinion as to a certain fact testified to, namely, the size of a sewer drain-pipe, was based upon what the witness had seen and upon what the witness had heard, was properly ruled out as being hearsay.

5. Proffered testimony for the defendants that since the trial of the case had begun the physical condition of the property over which the controversy had arisen had been changed in such a manner as to prejudice their rights was properly rejected, as it does not appear that the changed condition of the property had been brought to the attention of the jury.

6. Testimony of a witness, that he did not know the market value of the property, but would give a certain sum for it if he were going to.buy it, was not relevant for the purpose of showing market value, and was properly excluded.

7. The evidence authorized a finding that the plaintiff’s property was damaged in the amount of the verdict found for the plaintiff.

Judgment affirmed.

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


text:
    17621, 17622.
    Atlantic Coast Line Railroad Company v. Parker (two cases).
    Carriers, 10 C. J. p. 611, n. 11, 19; p. 619, n. 75;' p. 620, n. 76; p. 691, n. 57; p. 692, n. 73, 75, 76; p. 738, n. 68; p. 744, n. 11; p. 745, n. 19, 20: p. 763, n. 67; p. 794, n. 51; p. 802, n. 36.
    Pleading, 31 Cye. p. 468, n. 53, 55.
    Trial, 38 Cye. p. 1667, n. 85; p. 1669, n. 89.
   Stephens, J.

1. A misnomer as to the plaintiff’s name in a petition may be corrected and the true name substituted by amendment, without the amendment being subject- to the objection that it adds a new and distinct party plaintiff to the case. Where two petitions were filed against the same defendant, one by one person and one by another person, each alleging a cause of action growing out of the same transaction, and where one petition set out the acts of both the plaintiff therein and the other petitioner as respects the transaction complained of, describing the plaintiff therein as being an old man and the other petitioner as being the plaintiff’s son and a young man, who at the time of the transaction was ill, but by mistake this petition was not brought in the true name of the plaintiff therein, which was A. J. Parker, but was brought in the name of the other petitioner, M. W. Parker, with the initials reversed so as to read W. M. Parker, and where the other petition set out the acts of both plaintiffs as respects the transaction complained of, describing the plaintiff in that petition as being a young man, who was a minor and who at the time of the transaction was ill, and the other petitioner as being an .old man and the plaintiff’s father, but by mistake it was not brought in the true name of the plaintiff therein, which was M. W. Parker, but was brought in the name of the other petitioner, describing him as a minor, by his next friend, M. W. Parker, there was a misnomer in each petition as to the name of the petitioner, and the amendment to each petition, alleging a misnomer in the plaintiff’s name and substituting - the true name, and also alleging the true name of each party wherever it appeared in the petition, was properly 'allowed. Murphy v. Peabody, 63 Ga. 522; Bell v. Pate, 28 Ga. App. 195 (2) (110 S. E. 498).

2. Where a person applies to a railroad ticket-agent for a ticket to a certain point by way of a certain route, and the agent, in response to the request, issues him a ticket, the person to whom the ticket is issued has the right to assume that the agent has issued to him the ticket applied for, entitling him to transportation to the point named, over the route designated; and his failure to examine the ticket for the purpose of ascertaining whether it entitles him to the transportation applied for would not be negligence. Georgia Railroad Co. v. Dougherty, 86 Ga. 744 (2) (12 S. E. 747, 22 Am. St. Rep. 499); Georgia Railroad v. Olds, 77 Ga. 673. And see Puckett v. Southern Ry. Co., 9 Ga. App. 589 (71 S. E. 944).

3. Where the ticket issued to him does not entitle him to transportation over the route designated by him to the agent, and he, in ignorance of this fact, proceeds with his 'journey on a train on which he would be entitled to travel upon a ticket issued in accordance with his instructions, he is a passenger entitled to transportation to the destination and over the route designated by him to the agent, and he would not cease to be such a passenger upon afterwards ascertaining that his ticket, did not call for transportation over the route upon which he was traveling; and his eviction from the train, upon the ground that the ticket did not entitle him to transportation upon that train, would entitle him to recover damages in tort.

Decided September 23, 1927.

Damages; from city court of Yalclosta—Judge Cranford. July 30, 1926.

Bennel & Branch, Copeland & Dulces, for plaintiff in error.

E. K. Wilcox, E. E. Cox, T. G. Connell, contra.

4. These being suits to recover damages 'for an alleged unlawful eviction of the plaintiffs from the defendant’s train, and there being undisputed evidence that the plaintiffs left the train at the command of the defendant’s conductor, the statement in the court’s charge to the jury, that the plaintiffs were evicted from the defendant’s train, was not an expression of an opinion upon any fact in issue.

5. The demurrers to the petitions were properly overruled, and the evidence authorized the verdicts found for the plaintiffs.

Judgments affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    17755.
    Atlantic Coast Line Railroad Company v. Register.
    Carriers, 10 O. J. p. 772, n. 69; p. 773, n. 70; p. 776, n. 93; p. 790, n. 19; p. 791, n. 23.
    Evidence, 22 O. J. p. 527, n. 20; p. 528, n. 25; p. 531, n. 38; p. 536/ n. 92 New.
    Witnesses, 40 Cye. p. 2687, n. 93; p. 2699, n. 38; p. 2770, n. 35.
   Stephens, J.

1. Upon the trial of an action against a railroad company to recover damages for an alleged unlawful eviction of the plaintiff from a train upon which she was a passenger, where the evidence* authorized the finding that the plaintiff was a young woman traveling with a three-months-old baby upon a train of the defendant, her ticket entitling her to transportation to Thomasville, Georgia, that the conductor of the train ordered her in a harsh and impolite manner to leave' the train at Boston, which was a station short of the destina- , tion called for by her ticket, that she thereupon informed the conductor that her ticket entitled her to transportation to Thomasville, but he, after having been so informed, insisted upon her leaving the train at Boston and she, in response to his order, did leave the train at Boston, that after being informed by the plaintiff that her suitcase was on the train the conductor made a careless and indifferent remark about the suitcase, and it was carried on to the point of destination, the evidence presented as an element of damage the wounded feelings of the plaintiff and authorized a finding in an amount representing punitive damages. Atlanta Con. St. Ry. Co. v. Keeny, 99 Ga. 266 (3) (25 S. E. 629, 33 L. R. A. 824). The court did not err in instructing the jury as to the law relative to a recovery for punitive damages.

Decided September 23, 1927.

Damages; from city court of ThomasviHe—Judge MacIntyre. October 15, 1926.

II. II. Merry, Bennei & Branch, for plaintiff in error.

W. H. Hammond, J. B. Burch, contra.

2. After the plaintiff had testified as to the remarks made to her by the conductor before she left the train, her testimony that he was impolite was not inadmissible upon the ground that it was a conclusion of the witness.

3. Testimony of the plaintiff that at a certain time prior to her alleged eviction from the defendant’s train she was a married woman was irrelevant and immaterial to the issue as to the defendant’s responsibility for unlawfully evicting her from the train. Since a witness can be impeached only as respects matters that are material to the testimony of the witness and to the case, the court properly excluded evidence of extrajudicial statements of the witness, subsequently made, to the effect that at the time the statements were made she was not in fact married, which testimony was offered for the purpose of impeachment. Hudgins v. Bloodworth, 109 Ga. 197 (34 S. E. 364); Poland v. Osborne Lumber Co., 37 Ga. App. 212 (139 S. E. 734).

4. The evidence authorized a verdict for the plaintiff; and, in view of the conclusions authorized by the evidence, the verdict found in the sum of $650 can not by this court be held to be excessive.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    17609.
    Abraham v. First Bank of Cook County et al.

    Contracts, 13 C. J. p. 344, n. 49.
    Pledges, 31 Cyc. p. 796, n. 19; p. 843, n. 17.
    Specific Performance, 36 Cyc. p. 588, n. 76.
   Stephens, J.

An agreement between the holder of a past-due note and a stranger to the note, that in consideration of the stranger’s deposit of certain property as collateral security for .its payment, the holder will refrain from bringing suit upon it for an indefinite time, is lacking in consideration, in that the promise to extend the time of payment is so indefinite as to be incapable of enforcement, and therefore constitutes no consideration for the act of the stranger in depositing the collateral. 1 Joyce on Defenses to Commercial Paper, 411.

2. In such a case, where the stranger brought a suit in trover against the holder of the note, to recover for an alleged conversion of the plaintiff’s property deposited as security for the payment of the note, where the evidence, most strongly construed in hehalf of the defendant, was to the effect that the property was deposited with him under an indefinite agreement to extend the time of payment of the note, as indicated above, a verdict for the plaintiff, in an amount representing only the amount for which the defendant sold the collateral, less the amount represented by the note, was contrary to law and without evidence to support it; and the court erred in overruling the plaintiff's motion for a new trial.

Decided September 24, 1927.

Complaint in trover; from Cook superior court—W. D. Buie, judge -pro hac vice. June 31, 1936.

William, B. Kent, George E. Simpson, for plaintiff.

G. E. Jackson, for defendants.

Judgment reversed.

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


text:
    17627.
    Flournoy v. Crandall & Campbell Incorporated.
    Negligence, 29 Cyc. p. 601, n. 60; p. 621, n. 92; p. 644, n. 42.
    New Trial, 29 Cyc. p. 786, n. 87.
    Trial, 38 Cyc. p. 1748, n. 88, 89; p. 1750, n. 19.
    Decided September 24, 1927.
    Complaint; from Peaeb superior court—Judge Mathews. July 13, 1936.

      Houser & Mathews, Duncan & Nunn, for plaintiff in error.

      G. L. Shepard, contra.
   Stephens, J.

1. A charge to the jury that the party in whose favor the preponderance of evidence lies is entitled to prevail, and that where acts of negligence on the part of the plaintiff are claimed by the defendant, the burden is on the defendant to establish such negligence by a preponderance of evidence, states correct legal propositions. Neither portion of the charge is subject to the objection that it places a greater burden upon the defendant than the law imposes. Modern Woodmen of America v. Williams, 36 Ga. App. 359 (3) (137 S. E. 100).

2. Where the defendant sought a recoupment in damages, based upon the alleged negligence of the plaintiff, a charge to the effect that the negligence of the plaintiff should be shown by a preponderance of evidence “offered by the defendant” was error requiring the grant of a new trial, since the jury might have inferred from all the evidence introduced, including that introduced by the plaintiff, that the plaintiff was negligent as alleged by the defendant in his counterclaim.

Judgment reversed.

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


author: ■ Stephens, J.

text:
    17632.
    SMITH v. COLQUITT COUNTY et al.

    1. Section 634 of the Civil Code (1910) imposes no legal duty upon a county to maintain at a width of 16 feet a traveled way for vehicles over a bridge which is 32 feet long, on a highway in this State.
    2. As respects a vehicular traveler passing over the bridge, the county is not negligent as a matter of fact in maintaining the bridge so narrowly constructed that, on account of conditions afterwards arising respecting the appearance of the roadway at the approach to the bridge and the appearance of the bridge at its abutment, an approaching vehicular traveler coming upon the bridge, who is thereby deceived as to the narrowness of the bridge and the consequent inability of meeting and passing another vehicle on the bridge, will run upon the bridge and collide with the other vehicle thereon.
    3. No duty rests upon the county to maintain any signs warning travelers as to the alleged defective condition of the bridge.
    4. No cause of action being set out as against the resident defendant, and the petition being properly dismissed as to that defendant, the court had no jurisdiction as to the nonresident defendants, and the petition was properly dismissed as to them.
    Bridges, 9 C. J. p. 438, n. 10; p. 476, n. 72; p. 478, n. 93.
    Dismissal and Nonsuit, 18 C. J. p. 1182, n. 72; p. 1187, n. 60.
    Decided September 24, 1927.
    Action lor damages; from Colquitt superior court—Judge W. E. Thomas. July 21, 1926.
    This is a suit brought in Colquitt superior court by Mrs. Ida Smith against the County of Colquitt and J. W. I-Iowze and J. A. Shupe, residents of the County of Tift, to recover damages for the homicide of her husband, which she alleges resulted from the joint and concurrent negligence of the defendants. She alleges that her husband was traveling toward Norman Park in an automobile, along a public road in the County of Colquitt, and that after he had come upon a bridge in the road, and before completely passing over the bridge, his car was run into and wrecked by an approaching car occupied by the defendants I-Iowze and Shupe, and as a result of this collision he ivas killed; that the bridge was over a watercourse, and had been erected in 1921, and was maintained .by the defendant county; that the bridge was 32 feet in length along the roadbed and 11 feet and 5 inches wide between barriers built along both sides of the bridge; that, leading oil from the bridge in the direction in which the plaintiff’s husband was traveling, the roadway gradually widened from a width of 20 feet at the bridge to a width of 30 feet at a distance of about 600 feet from the bridge; that this widening in the roadway was so gradual as to be imperceptible to an ordinary traveler along the highway ;• that the bridge was constructed of pine timber and “had weathered ’to an indistinct gray that blended with the surrounding scenery and faded into the landscape, giving the appearance of a continuous highway of unvarying width of thirty feet,” and that one approaching the bridge “could not anticipate the presence of a bridge more narrow than the road, until one came very near, if not upon, said bridge;” that the approaching car of the defendants Howze and Shupe was traveling at a negligent rate of speed, of approximately 60 milés an hour, and, in violation of law, approached the bridge at a rate of speed in excess of ten miles an hour, and was not under immediate control. The plaintiff alleges that the law requires bridges on highways to be 16 feet in width, and that the maintenance by the county of the bridge at a width of only 11 feet and 5 inches'was negligence as a matter of law. It. is also alleged that the bridge, being only 11 feet and 5 inches in width, was too narrow to permit the passing of two vehicles thereon at the same time, and that, since the highway was a frequently traveled highway of the county and vehicles might reasonably be expected to meet at the bridge, the county was negligent as a matter of fact in maintaining a bridge of this width. It is alleged that the county maintained no signs warning travelers of the narrowness of the bridge. The plaintiff alleges the value of her husband’s life and her damage as a. result of his homicide. It is alleged that the defendant Howze, who was riding in the approaching car, was its owner and was directing and controlling the operation of the car, and that the defendant Shupe was driving the ear as his employee.
    General and special demurrers were interposed by all the defendants. Howze and Shupe demurred upon the ground that no cause of action was set out against the county, and that, as they were nonresidents of the county, the court had no juris- ■ diction over them. The demurrers were sustained and the petition dismissed as tp all the defendants, and the plaintiff excepted.

      Waldo DeLoache, for plaintiff.
   ■ Stephens, J.

(After stating the foregoing facts.) If no cause of action is set out against the County of Colquitt, the court has no jurisdiction over Howze and Shupe, as they are nonresidents of that county. The only allegations of negligence on the part of the County of Colquitt are as to the narrowness of the bridge and the failure of the county to put out warning signs’ to travelers along the highway, calling attention to the narrow condition of the bridge. Counsel for the plaintiff, in support of their allegation that a legal duty rests upon the county to maintain its bridges at a width of 16 feet, rely upon section 634 of the Civil Code (1910), as follows: “All bridges or causeways over small watercourses, and causeways over swamps or lowlands, shall be made and kept in repair by hands subject to work on roads; the pieces shall be laid across the road at least sixteen feet long, well secured, made fast, and covered with earth.” This section first appeared in this identical language in the first code of this State, which was adopted in 1863, where it appears as section 576. In the Code of 1873 this section is for the first time, by a marginal note, attributed to the act of 1818 as it appears in Cobb’s Digest, p. 949. This probably is correct, as Hon. David Irwin, who was one of the compilers of the Code of 1873, was one of the compilers of the Code of 1863. This section, therefore, must be construed with reference to the act of 1818 as it appears in Cobb’s Digest at the page cited. Nowhere in the act of 1818 is there any provision that bridges shall be 16 feet wide, but the act does provide for the repair of and work on the roads, causeways, and bridges in the State, designates what persons shall be liable for road work, and contains other provisions relative to road work in this State, and provides in terms that all causeways shall be at least 16 feet wide. Many of the sections of this division of the first code were made by-the codifiers “without any or very little legislation as a basis,” this being “necessary to give a better system to laws, and to harmonize with existing laws,” as was stated by Judge Richard H. Clark, one of the codifiers, in his article entitled “The Georgia Code,” published in his Memoirs, edited by Lollie Belle Wylie, p. 396. And see 7 Ga. Bar Asso. Rép. (1890) 144. This perhaps accounts for the fact that the verbiage of this section can not be found in the acts. Be this as it may, the code having been, enacted into statute, this section has all the force and effect of statute law. Construing it in the light of its history, as well as with due regard to its own verbiage, it can mean no more than that causeways, and perhaps short bridges over small, narrow streams, must be constructed of pieces laid across the roadway, 16 feet long, thus making the causeway or bridge 16 feet in width. All of these structures, whether small bridges or causeways, according to the provisions of this code section, must be covered with earth. This section certainly can have no reference to a bridge over a watercourse or ravine which is so wide as to necessitate the bridge being 32 feet in length, and thus being high enough to necessitate its being guarded by barriers along its sides. The County of Colquitt was under no lawful duty to construct or maintain the bridge at a width of 16 feet, or wider than its existing width of 11 feet and 5 inches.

Was the county negligent as a matter of fact in maintaining the bridge at a width of only 11 feet and 5 inches ? A bridge is constructed primarily for the purpose of enabling travelers along a highway to get across streams or ravines (Ellis v. Floyd County, 24 Ga. App. 717, 102 S. E. 181), and it is not essential to this purpose that a bridge should be so constructed as to permit vehicles traveling in opposite directions to be upon the bridge simultaneously and to pass each other thereon. While it may facilitate travel for the county to construct a bridge of such a width as to permit the passing of meeting vehicles, it is not necessary that a bridge of such a width be constructed in order to afford a vehicular traveler a safe and convenient means of crossing over the bridge. A bridge so narrowly constructed as to prevent the passing of meeting vehicles thereon is therefore not a defective bridge. And since, under section 748 of the Civil Code (1910), a county is liable to travelers over bridges along the highways only for injuries caused from defective bridges, the county is not negligent, as respects a vehicular traveler over a bridge, in maintaining the bridge so narrowly constructed that an approaching vehicle will run into him while attempting to pass him on the bridge. The fact that the condition of the roadway and its surroundings at the approach to the bridge is such in appearance that a vehicular traveler approaching the bridge will be deceived as to its narrowness and run onto the bridge in the expectation of pass-' ing a vehicle already on the bridge, does not place any duty upon the county to change or readjust the bridge by widening it to such an extent as to permit two cars to pass each other on the bridge; nor does any duty rest upon the county to so readjust the bridge as respects its appearance at the abutments as to prevent an approaching traveler from being deceived as to the narrowness of the bridge and the consequent inability of two meeting vehicles to pass on the bridge. If any duty rested upon the county when originally constructing the bridge to so adjust it to the terrain at the ends of 'the bridge as to obviate collisions between vehicles meeting upon the bridge, no question of negligence in this respect is here presented, since it does not appear that at the time of the construction of the bridge the alleged deceptive conditions at its approach, were in existence. In fact, it affirmatively appears otherwise, as it is alleged in the petition that the bridge had “weathered to an indistinct gray that blended with the surrounding scenery and faded into the landscape.”

No duty rested upon the county to maintain any signs warning travelers as to the alleged defective condition of the bridge. Wilkes County v. Tankersley, 29 Ga. App. 624 (116 S. E. 212).

Since the plaintiff’s petition contains no allegation of negligence as against the defendant county, the demurrer interposed by the county was properly sustained and the petition properly dismissed. And since the petition alleges no cause of action against the county, the court had no jurisdiction to entertain a suit against the defendants Howze and Shupe, who were nonresidents of the county, and the demurrers interposed by them were also properly sustained.

Judgment affirmed.

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


text:
    17818.
    Lafferty Lumber Company v. Thomas.
    Attachment, 6 C. J. p. 329, n. 25; p. 330, n. 20.
    Justices of the Peace, 35 C. J. p. 655, n. 15, 19.
   Stephens, J.

1. The replevy bond provided for in eases of attachment by section 5113 of the Civil Code of 1910, obligating the defendant “to pay the plaintiff the amount of the judgment and costs” that the plaintiff may recover, is required only after the levy of the attachment, and not after judgment on the attachment against the property.

2. Where an attachment has been issued, returnable before a justice of the peace, and levied upon personal property, and judgment for the plaintiff, in default, has been rendered, and the defendant in attachment, within the statutory period after judgment, enters .an appeal to a jury in the justice’s court by giving the statutory appeal bond required under code-section 5003, and simultaneously therewith executes a replevy bond for the property as required under code-section 5113, the filing of the appeal bond operates to suspend the judgment and to present a de novo proceeding, and the replevy bond will.be considered as taking effect- only after the appeal is entered. It follows, therefore, that where both bonds are executed by the same person as surety, tlie appeal, bond is not invalid and the appeal will not be dismissed upon the ground that the surety on the appeal bond had already become obligated and constituted no additional surety. See Woodliff v. Bloodworth, 121 Ga. 456 (49 S. E. 289).

Decided September 24, 1927.

Certiorari; from Biehmond superior court—Judge A. L. Franklin. November 12, 1926.

J. S. Waihins, James S. Bussey Jr., Henry G. Howard, for plaintiff in error. John J. Jones, contra.

3. The superior court therefore erred in sustaining the certiorari from the judgment refusing to dismiss the appeal.

Judgment reversed.

Jenldns, P. J., and. BeZZ, J.,. concur.


text:
    17599.
    Harris v. Texas Company.
    Sales, 35 Cyc. p. 125, n. 42; p. 186, n. 69, 73; p. 261, n. 75; p. 615, n. 15; p. 623, n. 8; p. 632, n. 20; p. 641, n. 97, 3.
   Stephens, J.

1. Where, after a seller under an executory contract of sale has breached tlie contract by a refusal to deliver the goods at the contract price, the purchaser buys the goods from the seller at a higher price demanded, the purchaser does not thereby waive the seller’s breach of the contract, if the purchaser is unable to purchase goods of a similar character elsewhere at the contract price; and where, if the purchaser fails to purchase goods of the seller, the seller may, by the terms of another contract between him arid the purchaser, cancel the latter contract to the detriment of the purchaser’s business, and it is therefore essential to the purchaser’s business interests that lie accede to tlie seller’s demand and purchase the goods only from • tlie seller, and where at the time of paying tlie advanced price he does so under protest and asserts tlie seller’s breach of the contract, the purchaser does not by such conduct waive the seller’s breach of the contract, and the rights of the parties are still governed by the contract. Secor v. Ardsley Ice Co., 133 App. Div. 136 (117 N. Y. Supp. 414). American Brewing Co. v. City of St. Louis, 187 Mo. 367 (86 S. W. 129, 2 Ann. Cas. 821).

2. The purchaser, after having purchased from the seller at the advanced price, may sue to recover from the seller the difference between the contract price and the price at which the purchaser bought.

Decided September 28, 1927.

Action for breach of contract; from city court of Savannah— Judge Eourke. June 26, 1926.

Stephens & Stephens, for plaintiff.

Adams & Adams, for defendant.

3. The petition set out a cause of action and was improperly dismissed on demurrer.

Judgment reversed.

Jenkins, P. J., and Bell, J., conawr.


text:
    17744.
    Riley et al. v. McCauley et al.

    Judgments, 34 C. J. p. 743, n. 76; p. 855, n. 40, 41; p. 856, n. 47; p. 862, n. 99; p. 863, n. 6; p. 920, n. 67, 68; p. 921, n. 74, 78.
    Decided September 28, 1927.
   Stephens, J.

1. In a suit upon a builder’s contract, instituted by the contractor to recover of the owner the alleged balance due under the contract after the completion of the building, where the defendant pleads a failure upon the part of the plaintiff to complete the building in accordance with the terms and specifications of the contract, by alleging that under its terms the plaintiff was under obligation to so construct the basement of the building as to render it waterproof, and that the plaintiff had failed to comply with this provision of the contract, to the damage of the defendant, the pleadings and the evidence introduced thereunder put in issue the questions as to whether a duty rested upon the plaintiff under the contract to so construct the basement as to render it waterproof, and as to whether or not the plaintiff had complied with this duty. The judgment rendered in that case, finding for the plaintiff in a certain amount, adjudicated the question of such liability.

2. In a suit afterwards instituted by the plaintiff against the defendant in the municipal court of Atlanta, to recover of the defendant the costs alleged to have been incurred by the plaintiff in working upon the basement and rendering it waterproof, where the work was done prior to the institution of the former suit, although this item was not sued for in that suit, the judgment rendered in that suit is res judicata of the plaintiff’s right to recover in the present suit. The plea of res judicata was established conclusively as a matter of law, and the verdict found in the municipal court of Atlanta in behalf of the plaintiff was as a matter of law unauthorized. The judge of the superior court erred in not sustaining the certiorari brought by the defendant, excepting to the judgment of the appellate division of the municipal court affirming the judgment of the trial judge in that court overruling the defendant’s motion for a new trial.

Judgment reversed.

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

Certiorari; from Fulton superior court—Judge Howard. October 7, 1926.

Watlcins, Asbill & Watlcins, for plaintiffs in error.

Dorsey, Shelton & Dorsey, Ralph II. Pharr, contra.


author: Stepiiens, J.

text:
    17760.
    Hanover Fire Insurance Company of New York v. Hodges.
    Appeal and Error, 4 C. J. p. 969, n. 56; p. 1158, n. 19, 20, 21, 22.
    Eire Insurance, 26 O. J. p. 157, n. 98; p. 177, n. 47; p. 197, n. 26, 31, 38;’ p. 231, n. 58; p. 235, n.'24; p. 362, n. 01; p. 381, n. 75; p. 506, n. 96; p. 538, n. 70; p. 543, n. 17.
    Mortgages, 41 O. J. p. 536, n. 95.
    Trusts, 39 Cye. p. 118, n. 5; p. 119, n. 9; p. 375, n. 1.
   Stepiiens, J.

1. Where a person had purchased land and paid therefor, without taking a deed of conveyance into himself, but where the legal title thereto was, with his consent, conveyed by his vendor to the purchaser’s brother for the sole and specific purpose of being by the brother transferred to another to secure a debt of the purchaser, and where the brother had fully executed and discharged this trust by making a deed of conveyance thereunder as security for the purchaser’s debt, the entire legal and equitable interest in the property, subject to the loan deed made by the brother, became by operation of law vested in the original purchaser. A second loan deed afterwards executed by the brother, conveying the property to secure his own debt, without the knowledge or consent of the original purchaser in possession as the true owner holding the entire legal and equitable interest in the property, subject to the first loan, vested no title in the grantee to secure the second loan, where the grantee took with notice of the original imrehaser’s right, title, and interest in the property. Where, at the time of the execution by the brother of the second conveyance, the original purchaser occupied a house on the land and was in sole possession of the house, and therefore of the land upon which the house rested, this possession constituted notice to the grantee in the second loan deed of the right, title and interest of the person in possession to the house and the land upon which it rested.

2. Where, after the execution of the second conveyance by the brother, the original purchaser took out a policy of fire insurance upon the house located upon the land, such second conveyance constituted no encumbrance upon the insured’s title to the property. In a suit by the insured against the insurance company to recover under the policy for a loss-of the property insured by fire, where the • defendant denied liability upon the ground that the second conveyance constituted an encumbrance upon the property without the defendant’s knowledge and consent, in violation of the terms of the policy, a finding that the title to the property insured, at the time of the issuance of the policy, was not encumbered as alleged by the defendant, was as a matter of law demanded.

Decided September 28, 1927.

Complaint on fire policy; from city court of Sandersville— Judge Goodwin. October 21, 1926.

Statement of facts by Stephens, J.

T. S. Hodges sued the Hanover Fire Insurance Company of New York upon a policy of fire insurance covering a certain dwelling house, which was destroyed by fire. He attached to his petition a copy of the policy, and also a copy of the proof of loss presented by him to the defendant, in which the total loss was alleged to be $2225.43. The plaintiff alleged that there was concurrent insurance on the building in the sum of $300, and deducted this amount from the total loss, leaving a balance of $1,-925.43, which he sought to recover.

3. Where the policy further provides that it will be void if the insured has concealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof, a failure on the part of the insured to inform the insurer of the existence of the above-described alleged encumbrance upon the property insured is not a violation of this provision of the policy, whore the insured at the time of the issuance of the policy was ignorant of the existence of the alleged encumbrance.

4. Under the above rulings, there was no evidence to authorize an inference that the title to the property insured was not in the plaintiff at the time of the issuance of the policy, or that it was otherwise encumbered without the knowledge of the defendant. A verdict for the plaintiff was therefore demanded as a matter of law in an amount representing his loss under the policy.

5. In view of the above rulings, it is immaterial that the insured acquired from the trustee a deed of conveyance to the property after the trustee had executed the deed to secure debt which created the alleged encumbrance upon the property, and before the issuance of the policy. It follows that the admission of this deed in evidence over the defendant’s objection, upon the ground of insufficient description of the property, was, if error, harmless to the defendant.

6. The secon'd proof of loss contained in the amendment to the petition not having been filed with the defendant within the time required by the terms of the policy, was filed too late, and the amendment should . have beeix rejected. The proof of damage to the property destroyed should therefore be limited to the amount represented in the original proof of loss, which was $2225.43. The plaintiff having received $300 upon the payment of this loss from another insurance company, in which he held concurrent insurance upon the property destroyed, a verdict for the plaintiff in an amount in excess of $1925.43 is unauthorized. Since the error in allowing the amendment to the petition can be cured by writing from the principal of the verdict found in the sum of $2000 the sum of $74.57, and by writing from the interest found in the sum of $104.94 a proportionate amount, so that the verdict shall read as finding for the plaintiff in the sum of $1925.43 principal, plus the interest thereon, which will equal $104.94, less the amount of interest written off, the judgment will be affirmed upon condition that the plaintiff write off the verdict the sums indicated above at the time the remittitur from this court is made the judgment of the court below; otherwise the judgment will be reversed. Travelers Ins. Co. v. Thornton, 119 Ga. 455 (6) (46 S. E. 678).

Judgment affirmed on condition.

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

The policy was issued on December 2, 1924, for the term of one year, and the fire was alleged to have occurred on July 8, 1925. The petition alleged that at the'time of the loss and at the time of the issuance of the policy the title to the land on which the building stood was in the Federal Land Bank of Columbia, to secure a loan, and that the defendant had knowledge of the loan; that the plaintiff had contracted to purchase the hundred-acre tract of land upon which the building stood from his father, H. C. Hodges, who owned a tract of about four hundred acres, and that the plaintiff had been in possession of this hundred-acre tract for more than fifteen years; that in the fall of 1921 he agreed with his father and his brother, H. H. Hodges, that the entire four-hundred-acre tract be conveyed to H. H. Hodges for the purpose of negotiating a loan with the Federal Land Bank of Columbia; that the four hundred acres were conveyed by H. C. Hodges to H. H. Hodges on December 19, 1921, and H. H. Hodges conveyed the same property on August 12, 1922, to the Federal Land Bank of Columbia to secure a loan of $5800, of which loan the plaintiff received $500; and that on September 9, 1922, the plaintiff received from H. H. Hodges a deed to the one hundred acres, of which he had been in possession for about twelve years, the conveyance being made subject to the outstanding loan deed to the Federal Land Bank of Columbia.

The material parts of the policy sued on are as follows: “This entire policy shall be void if the insured, has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein. . . This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple. . . If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured. . . The loss shall not become payable until sixty days after the notice, ascertainment, estimate and said proof of the loss herein required have been received by this company. . . No suit or action on this 'policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.”

The defendant filed a plea denying liability.

Upon the call of the case for trial the plaintiff tendered an amendment to his petition, alleging therein that he suffered a total loss of $3601.69 in the destruction of the building, and attached to the amendment an amended proof of loss, setting up his damage in that amount. It was alleged that he was entitled to recover $2000, which was the full amount of- the insurance. To the allowance of the amendment the defendant objected, upon the ground that it did not appear that the amended proof of loss, referred to therein, was signed and sworn to by the insured, and that it did not appear that the amended proof of loss was rendered to the defendant within the time provided for in the policy, or within the time prescribed by law, and also upon the ground that no sufficient reason was shown for the submission of an amended proof of loss. The court allowed the amendment, and the case proceeded to trial. The paper designated as the amended proof of loss was admitted in evidence over the defendant's objection. The defendant, at the conclusion of the testimony for both sides, moved to dismiss the suit, upon the ground that it was prematurely brought, in that it appeared that the proposed amendment was not served upon the defendant within the time required by law, and that no suit could be maintained upon the policy until after the expiration of sixty days after proof of loss had been received by the defendant. This motion was overruled. The defendant excepted to the allowance of the amendment and to the overruling of the motion to dismiss.

The defendant introduced in evidence a loan deed from H. H. Hodges to the Warehouse & Eealty Corporation, dated January 2, 1924, and recorded February 13, 1924, conveying the entire tract of four hundred acres, to secure a loan of $1100, and reciting that the conveyance was subject to the loan deed in favor of the Federal Land Bank of Columbia. In this fóur-hundred-acre tract was included the one-hundred-acre tract claimed by the plaintiff upon which the subject of the insurance stood. H. H. Hodges admitted the execution of this deed, but his testimony was undisputed that the plaintiff had no knowledge of it. The plaintiff’s testimony was to the effect that he himself had no knowledge of the deed to the Warehouse & Eealty Corporation when the policy was issued to him. It does not appear that the insurance company knew of the existence of this deed at the time the policy was issued. It appeared from undisputed evidence that the plaintiff was living in the insured house at the time of the issuance of the policy, and that for a period of twelve or fourteen years he had been in possession of the hundred-acre tract upon which the house stood,9 as purchaser from his father, but that he had not received from his father a deed of conveyance of the property. It appeared that this hundred-acre tract occupied by the plaintiff formed a part of the four-hundred-acre tract to which H. H. Hodges had held the legal title, and that when H. H. Hodges made the deed to the Warehouse & Eealty Corporation, he and the plaintiff, though living' separately, both lived upon and occupied the four-hundred-acre tract. It was undisputed, however, that the plaintiff was in actual and exclusive possession of the insured house and the land upon which it stood. The plaintiff introduced in evidence a deed to him from H. H. Hodges, dated November 24, 1924 (not September 9, 1922, as allegéd in the petition), conveying the hundred-acre tract, which deed was recorded July 24, 1926. This deed was executed after the execution of the deed from II. H. Hodges to the Warehouse & Eealty Corporation, but prior to the issuance of the insurance policy, but it was not recorded until after the policy was issued. The plaintiff, by undisputed testimony, proved his loss in the amount stated in the amended proof of loss. The policy and the original proof of loss and the amended proof of loss, and other documentary evidence, which it is not necessary to refer to, were introduced in evidence.

To the admission in evidence of the deed from H. H. Hodges to T. S. Hodges, dated November 24, 1924, conveying the hundred-acre tract, the defendant objected, upon the ground of insufficient description. The defendant objected also to the admission in evidence of the amended proof of loss, upon the grounds urged against the allowance of the amendment to the petition.

While it does not appear from the record that the defendant specially pleaded any violation of the provisions of the policy, upon the trial the defendant insisted that the deed of Ii. H. Hodges to the Warehouse & Realty Corporation, dated January 2, 1924, and conveying the entire tract of four hundred acres, which was executed prior to the issuance of the policy, constituted an incumbrance of which the defendant had no notice, upon the property insured, and voided the policy.

Upon the conclusion of the evidence the court directed a verdict for the plaintiff for the full amount of the policy sued on. The defendant made a motion for a new trial upon the usual general grounds, and also upon the grounds that the court erred 'in directing a verdict for the plaintiff and in admitting the evidence objected to. The motion was overruled, and the defendant excepted.

Application for certiorari was denied by the Supreme Court.

Smith, Hammond & Smith, Evans & Evans, for plaintiff in error.

M. L. Gross, contra.


text:
    17806.
    United States Fidelity & Guaranty Company et al v. Hairston, administratrix.
    Costs, 15 C. J. p. 265, n. 74.
    Workmen’s Compensation Acts, C. J. p. 55, n. 21; p. 56, n. 30; p. 59, n, 55; p. 117, n. 52 New; p. 130, n. 46 New; p. 131, n. 69.
   Stephens, J.

1. The Georgia workmen’s compensation act.(Ga. L. 1920, p. 167) contemplates, that compensation awarded thereunder shall be awarded to dependents only. It follows that where compensation, payable in weekly installments under the terms of the act, has been awarded to a widow on account of the death of her husband as a result of injuries received by liim arising out of and in the course of his employment, and the widow dies before all the installments awarded her have become due and payable, the installments becoming due and payable after her death are not payable to her estate.

Decided September 28, 1927.

Appeal; from Fulton superior court—Judge Howard. October 29, 192G.

Application for certiorari was denied by the Supreme Court.

Bryan & Middlebroohs, for plaintiffs in error.

Hugh Howell, John 1. Hynds, contra.

2. Where, after the death of the widow, an administratrix is appointed for her estate and the original award of compensation is by the industrial commission amended by an order which recites the death of the widow as claimant, and which provides that the “compensation due” the claimant “is now due and payable to” the administratrix, this amended order of the industrial commission, in so far as it provides that the compensation shall be payable to the administratrix, will not be construed as making an illegal award to the administratrix of all the remaining installments accruing and becoming due after the death of the claimant.

3. Where the administratrix brings a suit in the superior court wherein she seeks to have the award of the industrial commission made the judgment of the superior court, as provided in section 60 of the workmen’s compensation act (Ga. L. 1920; p. 167, 200), and prays for a judgment of the superior court awarding to her as administratrix the remaining installments becoming due and payable after the death of the widow, the petition fails to set out any right of action in the administratrix to recover. The court erred in not sustaining the demurrers to the petition.

4. The demurrer having been overruled and the only evidence introduced in suppoi't of the petition being a certified copy of the order of the industrial commission which the petitioner sought to have made the judgment of the superior court, the parts of the record specified in specifications 1, 2, and 3 of the bill of exceptions, to wit, the entire record on appeal from the original award to Eulton superior court, the proceedings in the superior court upon that appeal, the copy 'of the bill of exceptions excepting to the judgment of the superior court on that appeal, and the copy of the remittitur from the Court of Appeals in that case, were not material to a clear understanding of the errors complained of, but amounted to an unnecessary encumbrance of the record and entailed costs which were unnecessary and which should not be taxed against the defendant in error. It is therefore ordered that the costs of copying and transmitting to this court the parts of the record referred to as being unnecessary be taxed against the plaintiffs in error.

Judgment reversed, until direction.

Jenltins, P. J., and Bell, J., concur.


text:
    17614.
    Nashville, Chattanooga & Saint Louis Railway v. Mooneyham.
    Carriers, 10 C. J. p. 772, n. 69; p. 773, n. 70; p. 855, n. 81; p. 916, n. 54; p. 921, n. 89; p. 922, n. 93; p. 987, n. 40; p. 1056, n. 32; p. 1057, n. 33; p. 1059, n. 52; p. 1083, n. 71.
    Decided September 29, 1927.
    Damages; from Floyd superior court—Judge Maddox. July 13, 1926.
   Stephens, J.

1. The diligence which a railroad company owes to a passenger as respects Eis convenience and comfort at a station while waiting for a train is ordinary diligence. Central R. &c. Co. v. Perry, 58 Ga. 461. In a suit against a railroad company to recover damages for an alleged unlawful eviction of the plaintiff from a waiting-room of the defendant at night at a station where, the plaintiff was waiting as a through passenger to take a connecting train, where there was evidence to the effect that the defendant refused to keep open the waiting-room for the plaintiff’s convenience and comfort, a charge to the jury that the defendant owed to the plaintiff the duty of exercising extraordinary diligence for his convenience and comfort at the station was error.

2. There being evidence from which it could be inferred that the plaintiff was intentionally and wilfully evicted by the defendant’s agent from the defendant’s waiting room and turned out of doors during a cold spell of weather when sleet was falling, the court properly charged the jury that they were authorized to End punitive damages. Head v. Georgia Pacific Ry. Co., 79 Ga. 358 (7 S. E. 217); Mabry v. City Electric Ry. Co., 116 Ga. 624 (42 S. E. 1025, 59 L. R. A. 590, 94 Am. St. R. 141); Georgia Railroad v. Homer, 73 Ga. 251 (2).

3. Where the plaintiff in his petition alleged that his ticket called for immediate and continuous passage upon the next train leaving from the junction point to the point of destination, and this allegation was not stricken, and where in the brief of evidence coming to this court there was attached, in lieu of a copy of the ticket, a blank form of ticket issued by the defendant railway company, with an agreement of counsel that “the blank form of ticket is a correct copy of the original ticket, except the . . dates need to be inserted therein, which we agree is as contended by the plaintiff,” the evidence will be taken as establishing the fact that the plaintiff’s ticket called for immediate and continuous passage to the point of destination.

4. Quaere: Is the evidence sufficient to authorize the inference that the defendant maintained a waiting-room at the station, which was a junction point, for the accommodation of through passengers waiting between arriving and departing trains? See the rulings on the demurrer to the petition, Mooneyham v. N. C. & St. L. Ry., 33 Ga. App. 406 (126 S. E. 736); St. Louis Southwestern Ry. Co. v. Foster (Tex. Civ. App.), 112 S. W. 797.

Judgment rev&'sed.

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

Tye, Peeples & Tye, L. A. Dean, Lamar Camp, for plaintiff in error.

Porter & Mebane, contra.


text:
    17644.
    Thompson v. Swain.
    Appeal and Error, 4 C. J. p. 1029, n. 30; p. 1032, n. 36.
    Executions, 23 C. J. p. 605, n. 72, 73.
    Husband and Wife, 30 C. J. p. 825, n. 88; p. 827, n. 3.
    New Trial, 29 Cyc. p. 786, n. 87.
    Trial, 38 Oye. p.,1617, n. 34; p. 1618, n. 36; p. 1810, n. 17; p. 1910, n. 23, 24; p. 1911, n. 25.
   Stephens, J.

1. Upon the trial of a wife’s claim to crops grown upon the lands of her husband and levied upon for his debt, where the issue presented by the evidence adduced to establish title in either the husband or the wife was whether the crops,, which were made as a result of the manual labor of the husband and his minor children working under the supervision of the wife, who had taken 'over from the husband the management and supervision of the farm after he had become insolvent and had eng'aged in other work, were made by the wife for herself, or by her as agent for her husband, and where the only evidence of any transfer of title by the husband to the wife was a conveyance of the land upon which the crops were made, which conveyance was made after the crops had been levied on and the claim of title to the crops filed, no issue as to any fraudulent conveyance made by the husband to defeat creditors, affecting the title to the property levied upon, was presented, and the court erred, to the prejudice of the claimant, in charging the jury the law in reference to the conveyance of real and personal estate in fraud of creditors. Georgia National Bank v. Wall, 36 Ga. App. 564 (137 S. E. 129).

2. No issue is presented as to whether the arrangement entered into between the husband and the wife as to the cultivation of the land was a scheme or transaction in fraud of the husband’s creditors, since it does not appear that the creditor, who extended the credit to the husband during the year preceding that in which the crops were made but subsequent to such arrangement between the husband and the wife, was fraudulently induced to extend credit to the husband upon the belief that he was cultivating the land and was the owner of the crops made thereon. The court erred in submitting such issue to the jury.

3. Under the issues as presented by the evidence, the court did not err in charging the jury that the earnings of the wife, in the absence of any express agreement otherwise between her and her husband, belonged to the husband. '

4. Although it appears from the evidence that the labor of the husband contributed toward the making of the crops levied upon, the charge to the jury to the effect that the claimant contended that the husband performed no service in making tlie crops was inaccurate and not adjusted to the evidence. This error, however, is harmless and insufficient as a ground for reversal.

Decided September 29, 1927.

Claim; from city court of Sylvester—Judge Monk. August 23, 1926.

B. B. Williamson, for plaintiff in error.

Passmore,-Forehand & Ford, contra.

5. The court committed reversible error as indicated in paragraphs 1 and 2. As a verdict was rendered for the plaintiff in fi. fa., the court erred in overruling the claimant’s motion for a new trial.

Judgment reversed.

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


text:
    17686.
    Employers Liability Assurance Corporation Limited et al. v. Henderson.
    Workmen’s Compensation Acts, C. J. p. 48, n. 50; p. 49, n. 52; p. 54-, n. 97; p. 72, n. 69; p. 79, n. 11; p. 83, n. 50, 56; p. 86, n. 72.
   Stephens, J.

1. This being a suit by a policeman of a city against an insurance carrier, to recover compensation, and it appearing from parol evidence unobjected to as being secondary evidence that the defendant insurance company, in its policy insuring- the city under the workmen’s compensation act, expressly covered policemen employed by the city, and the salaries of the policemen were taken into consideration in fixing tlie premium on the policy, the policemen of the city, in so far as the insurance company is concerned, are to be regarded as employees of the city and entitled to compensation from the insurance company under the policy. Maryland Casualty Co. v. Wells, 35 Ga. App. 759 (134 S. E. 788), and cit.

2. Although the plaintiff policeman may not have elected to come under the workmen’s compensation act, such election is immaterial to his right to recover compensation 'as against the insurance carrier, since tlie insurance carrier, in issuing the policy, regards him as an employee, and it is not necessary for employees of a municipality to elect to come under the act in order to be entitled to compensation. See section 2 of the workmen’s compensation act (Ga. L. 1920, p. 167).

3. A city policeman, whose duty it is to patrol a beat and to perform police duties in the city, which duties he performs during a specified number of hours, may still be on duty and in the performance of his duties during that period of time while in his own home, where he has gone for the purpose of eating supper, intending to return after-wards to'his beat;'and since it may be his duty to carry a gun furnished to him by the city and to keep the gun in good condition, he may be in the discharge of his duty while wiping die gun when at home on the occasion of his going there for supper. If the policeman is injured by tile discharge of the gun under the above circumstances, the industrial commission, in considering his application for compensation, is authorized to find that the injury received by him arose out of and in the course of his employment as a police officer of the city.

Decided September 29, 1927.

Rehearing denied September 30, 1927.

Appeal; from Haralson superior court—Judge Irwin. August 28, 1926. •

Application for certiorari was made to tlie Supreme Court.

Bryan & Middlebrooks, for plaintiff in error.

J. M. McBride, M. J. Head, contra.

4. The superior court did not err in affirming the award of compensation.

Judgment affirmed.

Jcnkins, P. J., and Bell, J., concur.


text:
    17583.
    Smith v. Marbut-Williams Lumber Company.
    Appeal and Error, 4 C. J. p. 649, n. 36; p..650, n. 37; p. 972, n. 70.
    Evidence, 22 O. J. p. 299, n. 32; p. 308, n. 76; p. 310, n. 77; p. 458, n. 82.
    Frauds, Statute of, 27 O. J. p. 368, n. 10; p. 369, n. 13.
    Husband and Wife, 30 O. J. p. 619, n. 90; p. 851, n. 52, 53, 59, 61, 62.
    Trial, 3S Cyc. p. 1756, n. 8S, 89.
   Stephens, J.

1. Upon the trial of a suit against a married woman to recover for the purchase price of building materials alleged to have been purchased by her through her husband as agent, where she denies that she purchased the materials, and alleges that the debt was the debt of her husband, and there is evidence to authorize the inference that the husband purchased the materials upon his own account and not as agent for his wife, and the wife afterwards promises to pay the debt, she can not, in the absence of a plea setting up the statute of frauds, deny liability upon the ground that the promise, if made by her, was to pay the debt of another and was not in writing. A request to submit this issue to the jury was properly denied.

2. While, as was held in Herrington v. Garlick, 27 Ga. App. 368 (108 S. E. 304), only slight evidence as to the husband’s agency in contracting a debt for and in behalf of his wife is sufficient to authorize a jury to find in favor of the existence of such agency, where all the consideration of the debt reaches the wife as an accession to her separate estate, it is nevertheless necessary, in a suit against the wife, where her liability is dependent upon the establishment of the fact of the agency on the part of the husband, to establish the agency by a preponderance of the evidence. A charge to the jury that under the conditions referred to, “only slight evidence of the husband’s agency in contracting the debt is required to charge her,” is calculated to impress upon the jury that any evidence tending to establish the husband’s agency, however slight, is sufficient to establish his agency and to authorize a verdict against the wife, although the preponderance of the evidence may be otherwise. See Ga. Ry. & Power Co. v. Shaw, 25 Ga. App. 146 (1a) (102 S. E. 904); Hines v. Owens, 27 Ga. App. 373 (2) (108 S. E. 478).

Decided September 30, 1927.

Complaint; from Fulton superior court—Judge Pomeroy. June 26, 1926.

Burress & Dillard, for plaintiff in error.

McDlrealh & Scott, contra.

3. Upon the trial of the suit against the wife to recover for materials furnished to the husband and applied to her benefit by the improvement of her separate estate, where there had been admitted in evidence a statement afterwards made by her to the plaintiff that she would pay for the materials if she could obtain a loan upon certain property in a certain amount, evidence that she had since obtained a loan in an amount larger than the amount of the indebtedness sued for was irrelevant and had no value as tending to establish the wife’s liability, and, when considered in connection with the antecedent promise made by her to pay the debt, was calculated to prejudice and unduly influence the jury against her.

4. An offer made by the wife to the plaintiff, to pay for the materials which had been furnished, at a sum less than that claimed by the plaintiff, which offer was not accompanied by any statement by the wife admitting liability, was an offer to compromise, and evidence as to such offer was improperly admitted over objection. Malsby v. Widincamp, 24 Ga. App. 737 (7) (102 S. E. 178); Georgia Ry. & Electric Co. v. Wallace, 122 Ga. 547 (1) (50 S. E. 478).

5. It being material whether, when the husband purchased the materials from the plaintiff, he did so upon his own account or as agent for his wife, the entries on the plaintiff’s ledger, made at the time, showing that the materials were charged in the name of the husband for his wife, were admissible in evidence as a part of the res gestee of the transaction.

6. Since the case is to be retried, it is unnecessary to pass upon any other assignment of error than those dealt with above.

Judgment reversed.

Jenloims, P. J., and Bell, J., concur.


text:
    17636.
    Scott v. Gidelight Manufacturing Company.
    Appeal and Error, 4 O. J. p. 975, n. 88.
    Partnership, 30 Cyc. p. 411, n. 97.
    Trial, 38 Oye. p. 1393, n. 39; p. 1400, n. 91; p. 1518, n. 69; p. 1703, n. 75; p. 1704, n. 76; p. 1724, n. 88; p. 1727, n. 28.
    Witnesses, 40 Cyc. p. 2448, n. 70; p. 2451, n. 89; p. 2452, n. 98; p. 2453, n. 2; p. 2454, n, 4; p. 2465, n. 75.
   Stephens, J.

1. “A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper.” Civil Code (1910), § 5873. Where the witness testified that he had an interview with one of the defendants, and that immediately afterwards he reduced the interview to writing, and where, with the written memorandum before him to refresh his recollection, he testified as follows, he spoke from his recollection as thus refreshed: “He claimed to be a partner . . I don’t recall his exact words, except that he admitted being a partner in the Standard Specialties Company. . . From referring to that report and refreshing my memory, I say that Mr. Scott claimed to be a partner in the business. From refreshing my memory, that first sentence in the report expresses the truth, so far as I know.” This is true although the witness may have further testified that as to whether or not he had any independent recollection outside of the report he would not be positive, that only from the report did he know that the defendant told him that the defendant was a member of the partnership. The testimony of the witness was admissible, under section 5873 of the Civil Code (1910), and its probative value was for the jury.

2. Where only that part of this memorandum used by the witness to refresh his recollection which contained the statement made by the defendant with reference to the partnership was admitted in evidence at the instance of the party who offered the witness, over objection urged by the opposite party that it was inadmissible, the putting in evidence later by the latter party of the remainder of the memorandum amounted to a waiver of the objection urged by him to the admission of that part of the memorandum with reference to the partnership. Stephens, J., dissenting.

3. Section 5873 of the Civil Code (1910), quoted above, prescribes a rule as to the admissibility of testimony, and not a rule for the determination of its probative value. It was not error to fail to give this section or the substance thereof in charge to the jury.

4. In a suit brought jointly against a partnership and the individual members thereof to recover for goods alleged to have been sold and delivered to the partnership by the plaintiff, where one of the defendants files a plea denying the indebtedness and also files a plea of no partnership, telegrams filed in the office of a telegraph company, directed to the plaintiff and signed in the name of the partnership ordering the goods sued for, copies of which had been received by the plaintiff, where the execution by the partnership, or by some one with its authority, was not proved, were improperly admitted in evidence over objection. But since there were admitted in evidence, without objection, certain express and parcel-post receipts purporting to be signed by the defendant partnership, acknowledging- receipt by the partnership of the goods ordered and referred to in the telegrams and shipped by the plaintiff to the partnership, the error in admitting in evidence the telegrams was cured.

5. “In a ease where the admissions of a defendant who has filed a plea of no partnership are offered in evidence against him, it is error for the court to refuse a timely written request to charge the jury that admissions should be scanned with care.” Mims v. Brook, 3 Ga. App. 247 (3) (59 S. E. 711). This error requires the grant of a new trial.

Decided September 30, 1927.

Complaint; from Fulton superior court—Judge E. D. Thomas. July 27, 1926.

Dorsey, Howell & Hey man, Charles G. Reynolds, for plaintiff in error.

Wright, Cox & Johnson, A. W. Long, contra.

6. Since, as respects the defendant filing a plea of no partnership, there is evidence tending to establish his membership in the partnership, a letterhead of the partnership, containing the defendant’s name thereon as a partner, which was used by the alleged copartner in the name of the partnership in correspondence with the plaintiff prior to the shipment to the partnership of the goods sued for, was properly admitted in evidence as a circumstance tending to establish the defendant’s mem-

. bersliip in the partnership; and the court did not err in instructing the jury that letterheads could be considered upon the question as to whether or not the defendant filing the plea of no partnership was in fact a member of the defendant partnership, or whether he held himself out to the plaintiff as a member of the partnership. Mims v. Brook, supra.

7. The charge of the court as to what constitutes partnership, and also as to the liability of an ostensible partner, correctly stated the law and was adjusted to the evidence.

Judgement recersed.

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


text:
    17668.
    Davis v. Gavalas et al.

    Appeal and Error, 4 C. J. p. 1183, n. 37.
    Infants, 31 O. J. p. 1094, n. 70.
    Parent and Child, 29 Oye. p. 1GGG, n. 9.
   Stephens, J.

1. In a suit against the parents of a child for personal injuries alleged to have been received by the plaintiff as a result of being run into by the child, who at the time was' five years of 'age, while the child was riding a velocipede upon a public sidewalk at night, allegations to the effect that the parents furnished the velocipede to'the child and knowingly permitted him to ride it upon the sidewalk und'er the circumstances indicated, and that the child, who on account of his tender years was irresponsible, incompetent, and unqualified to use the velocipede with such care and diligence as not to injure the plaintiff, used the velocipede and negligently collided with the plaintiff, were equivalent to alleging that the parents were negligent in knowingly permitting a child of such age to use the velocipede in the manner stated, and charged actionable negligence on the part of the parents.

2. Where the petition alleged that the child was, on account of his tender years, incapable of committing negligence, no cause of action against the child was set out.

Decided September 30, 1927.

Action for damages; from Richmond superior court—Judge A. L. Franklin. September 2, 1926.

W. D. Lanier, for plaintiff. W. Inman Gurry, for defendants.

3. This being a suit by the person injured against the parents and the child jointly, to recover damages for the injuries received by the plaintiff, the petition sets out a cause of action against. the parents, but fails to set out a cause of action against the child.

Judgment reversed m part and affirmed in part.

Jenhins, P. J., and Bell, J., concur.


text:
    17722.
    American Disinfecting Company v. Wheeler County.
    Counties, 15 C. J. p. 540, n. 93; p. 541, n. 99; p. 542, n. 7; p. 544, n. 29; p. 586, n. 5, 6; p. 668, n. 37. Officers, 29 Cyc. p. 1432, n. 13.
    Decided September 30, 1927.
    Complaint; from Wheeler superior court—Judge Graham. September 14, 1926. '
    ' J. Wade Johnson, for plaintiff. J. L. Ilaiiaway, for defendant.
   Stepiiens, J.

1. Persons dealing with public officers must take notice of the limitations upon their powers. Decatur County v. Roberts, 159 Ga. 528 (2) (126 S. E. 460); Faver v. Mayor &c. of Washington, 159 Ga. 508, 579 (126 S. E. 464).

2. Where a resolution of the board of county commissioners provides that all purchases in amounts exceeding $100, made for and in behalf of the county, must be purchased by the consent of the entire board of county commissioners, “provided the warden should have authority to make small purchases for necessities that might arise between regular meetings,” it -follows that the sheriff of the county has no authority to bind the county by a contract of purchase, and that the warden has no authority to bind the county by a contract of purchase in an amount exceeding $100.

3. This being a suit against the county to recover upon two items, one representing articles bought by the sheriff of the county and 'the other representing articles in a sum in excess of $100, to wit $210, in one purchase made by the warden of the county, all of which were bought for and in behalf of the county without the consent of the board of county commissioners, the verdict directed for the defendant was demanded. Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.


text:
    17735.
    Rome Railway and Light Company v. Jones.
    Death, 17 O. J. p. 1313, n. 66; p. 1314, n. 75.
    Electricity, 20 O. J. p. 341, n. 68; p. 345, n. 7; p. 346, n. 11; p. 355, n. 87, 88; p. 367, n. 9; p. 370, n. 18, 22; p. 371, n. 24, 25; p. 386, n. 49; p. 387, n. 54; p. 388, n. 56; p. 395, n. 1; p. 397, n. 6.
    Trial, 38 Cyc. p. 1711, n. 19.
   Stephens, J.

1. This being a suit to recover damages for the homicide of the plaintiff’s husband, alleged to have resulted from his having come in contact with a current of electricity transmitted from defectively insulated overhead wires maintained by the defendant light company through a .cable attached to a derrick, at the end of which cable the husband was engaged in disconnecting steel beams which were being swung from one place to another by the derrick, and it being alleged that his death resulted from the negligence of the defendant in maintaining the wires in a defectively insulated condition in close proximity to the derrick, which was operated by an independent agency, and which swung around and came in contact with the wires, and the court, in the charge to the jury, having clearly instructed them that the suit was predicated upon the alleged negligence of the defendant in maintaining the wires in the alleged defective condition, the charge of the court that before the plaintiff could recover it must appear that the defendant light company was negligent, and that such negligence “was the direct and proximate cause of the death of said deceased, or that if the death of the deceased was caused by a separate, independent agency, that that agency could have reasonably been anticipated or foreseen by the defendant,” is not subject to the objection that the jury was thereby instructed that there could be a recovery against the defendant in the absence of any negligence upon its part, provided the defendant could have reasonably anticipated or foreseen that the derrick would come in contact with the defendant’s wires.

2. Although the derrick, when first set up and put into operation, was at a safe distance from the defendant’s charged wires, yet where it was, with the knowledge of the defendant, being operated in moving from one place to another heavy steel beams, which were being used in the construction of a large building in proximity to the defendant’s wires, the defendant might reasonably have anticipated that the derrick might, in the course of the work in which it was employed, be moved from place to place and would come in closer and more dangerous proximity to the defendant’s wires, and that a derrick having a longer boom might be used, thus increasing the danger and probability of the derrick’s coming in contact with the defendant’s wires. The fact that when the derrick was first located at a safe distance from the defendant’s wires the person in charge of the operation of the derrick, which was being operated by an agency independent of the defendant, promised to notify the defendant of any changed conditions in the operation of the derrick, which would render the proximity of the defendant’s wires dangerous to the workmen operating the derrick, would not relieve the defendant of the duty to anticipate that this notice might not be given, and that tlie conditions under which the derrick was operated might be changed and rendered more hazardous without notice to the defendant.

Decided September 30, 1927.

Damages; from Floyd superior court—Judge Maddox. October 14, 1926.

Application for certiorari was made to the Supreme Court.

L. A. Dean, Lamar Camp, G. D. Maddox, for plainti.EE in error.

Willingham, Wright & Covington, Porter '& Mebane, contra.

3. The court clearly instructed the jury that the plaintiff could not recover if her husband failed to exercise ordinary care to prevent his death, or if he failed to exercise ordinary care to avoid the consequences of the defendant’s negligence.

4. The court having clearly instructed the jury that the plaintiff was suing for the value of her husband’s life, and having also fully and properly instructed the jury upon the use of the mortality tables and how to arrive at the value of her husband’s life, the charge is not subject to the exception that the court failed to instruct the’jury as to the measure of damages recoverable.

5. The charge, fairly to the defendant, submitted to the jury the contentions of both parties and the issues presented under the pleadings and the evidence.

6. The court did not err in refusing to give in charge the special instruction requested in writing by the defendant,’ as the matters contained therein which were pertinent and applicable to the issues presented were covered by the charge given.

7. The evidence does not demand the inference that the negligence of those operating the derrick was the proximate cause of the death of the plaintiff’s husband, but authorizes the inference that his death proximately resulted from the negligence of the defendant. The verdict for the plaintiff was authorized and no error of law appears.

8. See Rome Railway & Light Co. v. Jones, 33 Ga. App. 617 (127 S. E. 786). Judgment affirmed.

Jenhms, P. J., and Bell, J.; concur.


text:
    17807.
    James, administrator, v. Hudson.
    Bankruptcy, 7 0. J. p. 185, n. 35; p. 192, n. 66; p. 193, n. 69, 70; p. 2S3, n. 47; p. 284, n. 49, 50; p. 286, n. 64; p. 337, n. 24; p. 338, n. 26; p. 410, n. 1, 3; p. 412, n. 21, 22.
   Stephens, J.

1. Where a proof of debt is filed by a creditor in bankruptcy which follows form number 32 prescribed for proof of a secured debt, which recites that the debt was secured by described property not sufficient in value to satisfy the debt, and which further recites that in a suit to recover on the debt the creditor obtained a general judgment against the debtor in a named court on a.certain date, which was more than four months prior to the date on which the debtor .’was adjudicated a bankrupt, that the amount of the judgment constitutes a lien upon all the property of the debtor, that the execution that issued upon the judgment has been levied upon certain described land of the bankrupt, and that this land is subject to the lien of the execution, the proof of debt preserves the creditor’s judgment lien upon the described land of the bankrupt. If the filing of a proof of a secured debt by a creditor could under any circumstances amount to a waiver of the lien, the proof - of debt here filed, preserving the lien, does not amount to a waiver by the creditor of his judgment lien upon the described land.

Decided September 30, 1927.

Illegality of execution; from Douglas superior court—Judge-Irwin. September 28, 1926.

IF. A. James, L. 8. James, G. M. James, for plaintiff.

Aslor Merritt, for defendant.

2. The creditor not having waived his lien by filing a proof of debt in the bankruptcy court, the debtor’s discharge in bankruptcy will not operate to discharge the lien of the judgment. McBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004); McCall v. Herring, 116 Ga. 235 (2) (42 S. E. 468); 7 C. J. 284, 337, 410, 412.

3. Where the land was levied upon under the execution, and the debtor filed an affidavit of illegality to the levy, upon the sole ground that the debt represented by the 'judgment was discharged by the debtor’s discharge in bankruptcy, and where upon the trial it appeared that the land levied on was not administered in the bankrupt court, the judgment sustaining the affidavit of illegality and dismissing the levy was error. Judgment reversed.

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