text:
    15479.
    Greene v. Lombard.
    Decided February 26, 1925.
    Attachment; from city court of Richmond county—Judge Black. February 20, 1924. '

      B. B. McCowen, for plaintiff in error.

      I. S. Peebles Jr., contra.
   Stephens, J.

1. It is not essential to tlie validity of an affidavit that tlie body thereof shall contain a recital that the facts stated therein are sworn to. It is sufficient if it appears from the jurat of the attesting officer that the facts stated are sworn to. Where the jurat of the attesting officer is in the following language: “Sworn to and subscribed before me,” and is dated and duly signed by him in his official capacity, and where the officer acted within his jurisdiction, and the name appearing in the body of the instrument as that of the affiant is subscribed thereto, all categorical statements therein purporting to be made by the affiant will be regarded as sworn to.

2. An affidavit, as the basis of the institution of an attachment, will be regarded as containing a sworn statement that the affiant is agent for the creditor therein named when the affidavit contains the following language: “State of Georgia, Richmond Countjr. Personally appeared before me, the undersigned justice of the peace in and for said county, II. 0. Bryson. He is agent for Geo. S. Lombard, who, being duly sworn, on oath s_ays that A. F. Greene is justly indebted to Geo. S. Lombard,” etc.

3. Where it appears only from the affidavit, as the basis of the issuance of an attachment, that the affiant is agent for the creditor named in the affidavit, the accompanying bond, executed in the name of the creditor “per” the affiant, without any descriptive word as to agency, sufficiently appears to be executed by the agent of the creditor having authority so to do, which authority is conferred by the Civil Code (1910), § 5057.

4. A declaration in attachment may be filed at any time during the term to which the attachment is returnable. Sutton v. Gunn, 86 Ga. 652 (12 S. E. 979). Where an attachment was made returnable to the October term, 1923, of the city court of Richmond county, and was returned during that term, although after the first day of the term, it was not subject to dismissal upon the ground that it was returned too late. Where the declaration in attachment was filed on the same date, neither the declaration nor the attachment was subject to dismissal upon the ground that the declaration was filed too late.

5. The court did not err in overruling the motion to dismiss the attach-

ment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    15646.
    Buckeye Cotton Oil Co. v. Malone et al.

   Stephens, J.

1. An ordinary promissory note in which the consideration is recited only as “value received,” and which contains no provision imposing any obligation upon the payee, “does not purport to contain all of the stipulations of the contract” relative to the subject-matter for which the note is given. Where the terms and stipulations of such a contract rest in parol agreements and understandings between the parties, and do not in any way contradict the terms of the nóte, they may be established as part of the contract. Civil Code (1910), §§ 5791, 4268; Burke v. Napier, 106 Ga. 327 (32 S. E. 134); Anderson v. Brown, 72 Ga. 713; Camp v. Matthews, 143 Ga. 393 (1) (85 S. E. 196).

2. Where an indebtedness is secured by a pledge of personal property, the value of which has shrunk and become considerably less than the debt, and concerning which the creditor is asserting a right to sell before a certain date,-—as April 1st,—and convert it into money to be applied upon the indebtedness, and where, before the arrival of that date, it is agreed between the creditor and the debtor that the debtor shall execute a promissory note to the creditor, which the debtor does, in an amount estimated and agreed upon as representing the difference between the value of the pledged property on the date of the execution of the note and the original indebtedness, and the note contains no provision imposing any obligation upon the creditor, and therefore does not purport to contain all the stipulations of the contract, and it matures beyond the time within which the creditor asserts the right to sell the property pledged,—as October 1st next thereafter,—a parol agreement between the debtor and the creditor, entered into contemporaneously with the execution of the note, by the terms of which the creditor agrees to defer until the latter date the assertion of his right to sell the pledged property in no wise contradicts the terms of the note, and may be established as a part of the contract.

3. Where the note by its terms as executed in fact matures upon the 1st of April, and not on the 1st of October, and where an agreement in writing is made contemporaneously therewith as a condition upon which the payee executes the note, by the terms of which the creditor agrees to extend the time of payment until October 1st provided the maker is financially unable to meet the note on April 1st, and which recites that “this is given as margin on [property pledged],” the agreement amounts to no more than an alteration of the maturity date of the note, by the consent of the parties, and therefore does not purport to constitute the entire agreement between them, and the agreement and the note may be supplemented by a consistent and unconilicting contemporaneous parol agreement between the parties, made at the time.

4. In a suit by the creditor against the debtor, to recover both upon the note and for an alleged balance claimed as due upon the original indebtedness, the defendant may establish the contract as alleged by him in parol.

5. Where such a contract obligated the plaintiff to wait until October 1st to sell the property pledged and apply the proceeds of the sale upon the indebtedness, a conversion by the plaintiff of the property to its own use, by crediting the value of' the property upon the account in April prior thereto, amounted to a breach of the contract, and the defendant was entitled to recover of the plaintiff, by way of recoupment, the difference between the value of the property at the time of the conversion and its increased value on October-1st.

Decided February 26, 1925.

Complaint; from city court of Dublin—Judge Sturgis. April 31, 1924.

Burch & Daley, Brock, Sparks £ Russell, for plaintiff.

J. S. Adams, for defendants.

6. Since admissions are not proof, but are only a means of proof, having evidentiary value to be considered by the jury, certain communications made by the debtor to the creditor prior to April 1st, -which seem to concede the creditor’s right to sell the property pledged before that date, although undisputed, can not establish as a matter of law the existence of the terms of the contract as contended by the creditor.

7. Nor can such communications made to the creditor and known to both contracting parties establish a departure from the contract as contended for by the creditor, and thereby establish the contract in accordance with the creditor’s contention, since the creditor, if he acted upon them, did not do so to his disadvantage. He did not sell the property, but only credited the value of the property on April 1st on the account due by the debtor. Civil Code (1910), §§ 4227, 4207.

8. The evidence authorizes the inference that the plaintiff, to the defendant’s damage in the amount sued for, breached the contract as contended for by the defendant; and the verdict found for the defendant was therefore authorized.

Judgment affirmed.

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


text:
    15692.
    Farmers and Merchants Bank v. Willie, executrix.
   Stephens, J.

1. Since any one of the eoexeeutors of an estate has the right to collect the assets of the estate, it follows that where a certificate of deposit is issued by a bank to coexecutors of an estate for funds belonging to the estate and deposited with the bank by one of the executors, although the bank has knowledge or is chargeable with knowledge of such fiduciary character of the funds, the bank may, in the absence of any protest from the other executor, pay the funds to the executor to whom the certificate of deposit has been delivered, upon its presentation by him and surrender to the bank. Civil Code (1910), § 3893. See, in this connection, Munnerlyn v. Augusta Savings Bank, 88 Ga. 333 (14 S. E. 554, 30 Am. St. Rep. 159); 11 R. C. L. 406; Mackay v. St. Mary’s Church, 15 R. I. (1885) 121 (23 A. 108, 2 Am. St. Rep. 881).

2. The fact that the certificate of deposit which was issued in the name of the two persons who were in fact executors of the particular estate to which the funds in fact belonged described them solely as “executors” is a circumstance which may be considered by the jury as tending to establish knowledge by the bank that the funds were trust funds, but it does not as a matter of law conclusively establish such knowledge. See, in this connection, American National Bank v. Fidelity & Deposit Co., 120 Ga. 126.

Decided February 26, 1925.

Certiorari; from Graciy superior court—Judge Custer. March 19, 1924.

Jeff A. Pope, 8. P. Cain, for plaintiff in error.

Ira Carlisle, contra.

3. Where the executor who withdrew the funds from the bank died, and the sole surviving executrix representing the estate brought a suit against 'the bank to recover as funds belonging to the estate the funds represented by the certificate of deposit, and where it did not appear conclusively and without dispute that the defendant bank know that the funds were trust funds and participated in their conversion, if there was any, by the executor who withdrew the funds from the bank, the evidence did not as a matter of law demand a verdict for the plaintiff.

4. The verdict directed for the plaintiff not being as a matter of law demanded, the superior court erred in overruling the defendant’s certiorari.

5. Whether, if the bank had knowledge that the funds represented by the certificate of deposit were trust funds, it is to be treated as having participated in a conversion when it made a loan to one of the persons named in the certificate of deposit as “executor,” and took his individual note therefor and a pledge by him of the certificate of deposit as security therefor, or whether the pledge of the certificate of deposit by the executor under the circumstances was void and passed no title thereto to the bank, is not decided.

Judgment reversed.

Jenkins, P. J., concurs. Bell, J., disqualified.


text:
    15735.
    Holmes v. Whaley.
   Stephens, J.

1. A wife receives a legal benefit in a life-insurance policy issued to her husband in which she is named as beneficiary, although under its terms the insured may change the beneficiary at will.

2. Where a husband signs an application for a policy of life-insurance in which he designates his wife as the beneficiary, and reserves the right of revocation without her consent, and where the policy is afterwards delivered to her, and coincident with such delivery she executes a joint note with him, payable personally to the agent to whom the application has been given in payment of the first year’s premium, the obligation to pay such premium is the debt of the wife, and she in executing such note does not do so as surety.

3. Neither the terms of the policy other than referred to in paragraph 1 above, nor the fact that the policy was issued and delivered to the agent before its delivery by him to the wife when she executed the note, is material.

Decided February 26, 1925.

Complaint; from DeKalb superior court—Judge Hutcheson. Majr 29, 1924.

Walter A. Sims, J. E. Berman, for plaintiff in error.

D. K. Johnston, contra. ,

4. It was not error for the court to allow a witness, who had been “put under the rule” and sent from the court-room, to testify before receiving testimony from the plaintiff, who had been allowed to remain in the • x’oom.

5. In a suit by the payee of the note, against the wife as maker, the verdict found for the plaintiff was authorized, and no error of law appears.

Judgment affirmed.

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


text:
    14745.
    Ætna Life Insurance Company v. Palmer.
    Decided February 27, 1925.
    Action on insurance policy; from city court of Camilla—Judge Burson. June 6, 1923.

      E. E. Cox, for plaintiff in error.

      M. A. Warren, E. M. Davis, contra.
   Stephens, J.

1. This being a suit by the insured to recover of the insurer certain indemnities claimed as due the insured for permanent disability, under a policy of life-insurance providing for the payment of certain indemnities and for the waiver of premiums upon the in- , sured becoming totally disabled, the verdict found for the plaintiff was, upon an application of the rulings of the Supreme Court in answer to certified questions propounded in this case (159 Ga. 371), authorized.

2. Certain correspondence from attorneys of the insured to the insurer, while containing much irrelevant matter, was nevertheless relevant as showing the required notice to the insurer and a denial by the insurer of liability under the policy, and tliex-efore as showing no necessity of further proof under the policy.

3. Certain testimony as to the plaintiff’s physical condition, including an answer of a witness to a hypothetical question, was relevant to the issues made under the pleadings.

4. Other assignments of error, excepting to the charge of the court and to the refusal of a request to charge, are without merit, under the rulings of the Supreme Court in answer to the certified questions.

5. The court did not err in striking a cei-tain paragraph in the defendant’s plea. The petition set out a cause of action, and the evidence authorized the verdict for the plaintiff.

Judgment affirmed.

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


text:
    15535.
    McClure Ten Cent Co. v. Humphries.
   Stephens, J.

1. This being a suit in which the plaintiff seeks to recover for physical injuries, wounded feelings, mortification, etc., alleged to have been suffered by her as a result of an assault and battery and a false arrest, alleged to have been committed by the authorized agents of the defendant acting within the' scope of their employment, while the plaintiff was rightfully in the defendant’s store, where she had gone to make a purchase, which tortious acts are alleged to have been accompanied by a false charge of larceny publicly made against the plaintiff before a large crowd of people present by the defendant, the evidence admitted, being in support of such allegations, was relevant and material; and it appearing that the evidence sustained the allegations in every particular, a verdict finding punitive damages for the plaintiff was authorized.

2. Where it appears, from the evidence, that the plaintiff, while in the defendant’s store, was accosted by a female detective, who accused the plaintiff of larceny and invited the plaintiff to accompany her, which invitation an employee of the defendant, who had in the meantime come up, concurred in, by ordering the plaintiff to accompany the female detective, and in support of the invitation laid hands upon the plaintiff and forced her to accompany him against her will and resistance, the inference is authorized that, whether the female detective was acting in the interest of the defendant or of some other mercantile establishment, such employee of the defendant participated in the transaction in the interest of the defendant, and the inference is authorized that such employee, in aiding in the apprehension of the plaintiff and treating her as having stolen from the defendant, acted within the scope of his authority as agent for the defendant.

3. While the suit is not predicated upon a violation-by the defendant of any duty to afford the plaintiff protection from assault and insult while in the defendant’s store, yet the fact that the occurrence complained of took place in a part of the store within the defendant’s control was relevant as tending to show that the alleged agents of the defendant, participating in the transaction, were, by reason of being upon the property of the defendant, acting within the scope of their authority as agents of the defendant.

4. The court properly instructed the jury that there could be no recovery against the defendant based upon any failure of the defendant to afford the plaintiff protection from assault and insult while she was upon the defendant’s premises.

5. The court properly and fairly to the defendant stated all of the contentions of the plaintiff as set out in the petition, including a statement by the court that the plaintiff contended that the female detective who assaulted her was employed by the defendant. Whatever construction in this respect may have been placed upon this petition in McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (116 S. E. 54), this statement of the trial judge was not error, in view of the amendment afterwards made by which the plaintiff struck from the petition certain allegations to the effect that the alleged female detective was employed by an association known as the Atlanta Retail Merchants’ Association, anil in view of the precise language of paragraph 12 of the petition, which alleges that the alleged female detective and a man whose name is unknown to the plaintiff “were employed by both defendants herein for the purpose of watching and apprehending petty thieves.”

Decided February 27, 1925.

Damages; from Fulton superior court—Judge Ellis. February 15, 1924.

Application for certiorari was denied by the Supreme Court.

Philip Wellner, Ellioll Cheatham, for plaintiff in- error.

Arminius Wright, contra.

G. A statement by the’ court to the effect that one of the contentions of the defendant was that the defendant’s • agent “simply separated these parties [meaning the plaintiff and the female detective] in an effort to preserve peace in the store, which they had a right to do,” while inaccurate, in that it is not borne out by the record, was nevertheless harmless to the defendant, since it was favorable to the defendant, and since it does not state that the defendant, in separating the parties, laid hands upon the plaintiff or assaulted the plaintiff, and since the defendant admits having assisted the plaintiff to the basement of the store, and since one of the defendant’s employees, who participated in the transaction, testified that he took hold of the plaintiff’s arm to so assist her.

7. The court did not, upon the theory that the female detective was not employed by the defendant or acting in the defendant’s interest, err in admitting in evidence what she said to the plaintiff when accosting her as indicated. Sucli evidence was clearly admissible, as it was inferable that her statement was made in the presence of the authorized agents of the defendant and was part of the res geste.

8. The plaintiff’s innocence of the criminal charge against her being material and being a fact in aggravation of damages, and 'her protestations of innocence, made at the time of the alleged assault and arrest, being part of the res gestee, the court did not err in admitting any of the evidence relative to the plaintiff’s innocence of the charge.

9. It being undisputed that the female detective was at that time in the employ of the Atlanta Retail Merchants’ Association, and that she followed the plaintiff into the defendant’s store from another store, it is immaterial that the court excluded evidence to the effect that she was told by an officer of that association, at the other store, to follow the plaintiff.

10. In view of all the circumstances as narrated by the plaintiff, which the jury were authorized to believe, this court can not say that the verdict found for the plaintiff, in the amount of $5000, was excessive.

11. The court ruled fairly to the defendant upon the admission and rejec- - tion of testimony. Any requests which were applicable were covered by the charge given. The verdict found for the plaintiff was authorized by the evidence, and no error of law appears.

Judgment affirmed.

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


text:
    15354.
    POSTAL TELEGRAPH-CABLE COMPANY v. TUCKER.
    Where tlie owner of an automobile-truck is employed by the day to operate it in hauling men and materials, and performs all the duties incident to the employment under the direction of the employer, the employee is, when operating the truck pursuant to the employment, the servant .of the employer, and is not an independent contractor.
    Decided February 28, 1925.
    Certiorari; from Pulton superior court—-Judge Humphries. December 3, 1923.
    Wood, the owner of an automobile-truck, contracted with the Postal Telegraph-Cable Company to use the truck in doing certain hauling for the company, for which the company was to pay him $10 per day, and to furnish gasoline and oil and pay all the expenses. His duties were to drive the truck and haul men and material from place to place along the route of the Georgia Railroad under the direction of the employer’s foreman, while servants of the employer loaded and unloaded the truck, and were transported on the truck for such purposes. He had no other duty to perform than operating the truck when directed by the foreman. He w'ent nowhere of his own volition, but “did everything under orders” of the Postal Telegraph-Cable Company. While the truck was being operated from Conyers to Ingleside, “under the direction of the foreman, to get some poles,” it ran into and demolished a plate-glass window in the garage of C. J. Tucker Motor Company at Litlionia, on the Stone-Mountain road leading to Ingleside, where Wood had stopped for the purpose of procuring an attachment for the truck. Tucker, doing business as .the C. J. Tucker Motor Company, brought suit in the municipal court of Atlanta against the Postal Telegraph-Cable Company, to recover the value of the plate-glass window, alleging that it had been destroyed as a result of negligent operation of the truck by Wood as the defendant’s servant. A verdict was rendered for the plaintiff. The defendant sued out certiorari, the certiorari was overruled, and the defendant excepted. It is conceded by the plaintiff in error that the sole question for determination is whether Wood, at the time of the occurrence complained of, was a servant of the defendant, or was an independent contractor.
    Anderson, Bountree & Qrenshaw, for plaintiff in error.

      Bond Almandj contra.
   Stephens, J.

(After stating the foregoing facts.) It appears, from the evidence of the driver of the truck, who was employed by the day, that he, in the discharge of the duties of his employment, went from place to place under the direction of the foreman of the employer, and did everything in accordance with orders given him by the employer, and did nothing of his own volition. The evidence authorizes the inference that the employee was not employed to produce a general result without any interfering directions from the employer, but that the employer retained the right “to direct or control the time and manner of executing the work,” and that therefore the employee, while engaged in operating the truck when the damage sued for occurred, was a servant of the employer and was not an independent contractor.

The verdict for the plaintiff was authorized, and the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: Pee Curiam. Stephens, J.,

text:
    15367.
    BAILEY v. GEORGIA RAILROAD.
    Decided February 28, 1925.
    Complaint; from Newton superior court—Judge Hutcheson. December 15, 1923.
   Pee Curiam.

1. “If the consignee rejects the goods, the carrier’s liability as to such ceases, and he becomes liable as warehouseman. As such warehouseman he is chargeable with the duty of notifying the consignor of the consignee’s refusal to accept the goods, and with the further duty of holding' the same subject to the order of the consignor.” Ala. R. Co. v. McKenzie, 139 Ga. 410, 412 (77 S. E. 647, 45 L. R. A. (N. S.) 18); American Sugar Refining Co. v. McGhee, 96 Ga. 27 (1) (21 S. E. 383).

2. But where, under a contract of purchase and sale, goods are shipped in a single lot to the vendee, who accepts them, pays the freight, and actually removes and retains a portion thereof, but afterwards returns to the carrier a part of the goods so removed, and, with himself designated as consignor, returns all the unused portion of the shipment to the vendor, he is liable to the carrier for storage charges which accrued on the goods after their acceptance by him and pending his' negotiations with the vendor for their acceptance and return, irrespective of any equities which might exist as between himself and the vendor. The court therefore did not err in directing a verdict against the defendant vendee for the storage charges sued for.

Judgment affirmed.

Jenkins, P. J.,‘and Bell, J., coneur. Stephens, J., dissents.

0. 0. King, for plaintiff in error.

Miles W. Lewis, Reuben M. Tuclc, contra.

Stephens, J.,

dissenting. This is a suit by the Georgia Railroad against W. B. Bailey, to recover the storage charges upon a shipment of a certain lot of flour, shipped by I. Jacobs of Atlanta over the plaintiff’s railroad and consigned to the defendant at Covington, Georgia. The depot agent of the plaintiff at Covington testified: that the flour arrived at Covington on June 9; that the freight charges were promptly paid when it arrived but before the defendant had seen the flour; that after the freight charges were paid and the defendant had removed some of the flour, “he came back and said the flour was not what he bought, and that he was not going to take it. I don’t remember how many sacks he had got, and he said that he was going to bring that back; his customers had returned it to him; that he had bought one grade of flour and could not use it. I told him then that he had better take it up with the shippers, because the storage would accrue on it if it stayed here over a specified time, which was 48 hours after 7 o’clock the next morning. It stayed there over the 48 hours; it stayed there until June 22; that was eleven days exceeding the 48 hours; it arrived on the 9th, and it stayed two days without storage charges, and the storage started on the 12th. . . He did not tell me to hold it; he did not tell me anything. . . I finally got instructions about shipping it in the 22d day of June. I sent it back to Atlanta; at least my freight clerk sent it to Atlanta, and omitted the storage.” The witness further testified: “It was the 9th day of June, whenever that was, it was my recollection, I went to the First National Bank and got the freight before I saw Mr. Bailey at all, but I am not positive about that, because I collected some bills from there, and sometimes he came to the office and paid himself. He gave me orders, such bills as he hadn’t paid, when he sent for freight, for me to take them to the First National Bank, and they would pay them, and the bank always paid them. I don’t think the flour was brought back the next day or the day after that. I don’t recall whether I was there when the flour was brought back or not. I talked with Mr. Bailey about the flour a few. days after that; I don’t know whether I talked to him in the office or up town; I talked to him about it though. He said the flour was not what he bought and he wasn’t going to accept it; he did not tell me to send it back; lie didn’t tell me anything about sending it back; he said he was taking it up with the shippers; he told me he was not going to take it, but that’s not orders to send it back; said he was going to handle it with him over long-distance phone; told me the flour was not what he bought. . . Mr. Bailey was the one that told me to send it back about 14 days afterwards. . . I don’t recall whether he brought any of that [referring to the flour which the defendant had actually taken out] back or not, but I think he did.” The defendant testified that the freight was paid before he knew the flour had arrived; that the first he knew about the flour was. about six o’clock Saturday night, that customers began to complain about it; that he told the depot agent of the plaintiff that he was not going to take the flour, and that the depot agent told him to take it up with the shipper and see what the shipper would do about it, and that later he told the depot agent to ship the flour back, that the shipper had told him to have it shipped back. It appears, from the evidence of the plaintiff’s depot agent, that this shipment was an open shipment. There was introduced in evidence a “memorandum bill of lading dated June 22, 1922, from W. B. Bailey to I. Jacobs, of Atlanta.” The consignee stated that he “got a bill of lading.” It was not disputed that the storage charges sued for had accrued. The court directed a verdict for the plaintiff, and the defendant moved for a new trial.

Where a shipment of goods is refused by the consignee, the carrier afterwards holds them for the benefit of the consignor. Alabama Great Southern Railroad v. McKenzie, 139 Ga. 410 (77 S. E. 647, 45 L. R. A. (N. S.) 18); Southern Railway Co. v. Born Steel Range Co., 126 Ga. 527 (55 S. E. 173); American Sugar Refining Co. v. McGhee, 96 Ga. 27 (21 S. E. 383); 10 C. J. 269 et seq. Whatever implied contractual obligation may, under certain circumstances, rest upon the consignee to pay the freight charges upon the property shipped, no such obligation rests upon the consignee where the carrier, at the time of the receipt of the property from the consignor, has notice that the property does not belong to the consignee. 2 Hutchinson on Carriers (3d ed.), § 809. It would seem, therefore, that, where the consignee rejects a shipment and at the same time notifies the carrier that the property does not belong to the consignee, hut belongs to the consignor, no implied obligation would rest upon the consignee to pay any subsequently accruing warehouse charges upon the goods in the possession of the carrier. A notice to the carrier by the consignee, when rejecting the goods and refusing to accept them, that the goods are refused because they are not in accordance with the consignee’s contract with the consignor from whom the consignee purchased the goods is. equivalent to a notice to the carrier that the goods do not belong to the consignee. Any reshipment afterwards by the consignee to the consignor is as agent for the consignor, which agency is known to the carrier.

An acceptance of goods from the carrier by the consignee, which the carrier holds without notice as to the title, and which therefore presumably belong to the consignee, would-perhaps render the consignee liable upon an implied obligation to pay all charges arising incident to the shipment. While an acceptance, as the basis for such an implied obligation, might arise where the consignee does not actually acquire physical possession of the goods from the carrier, but only agrees to accept them and engages the carrier to hold the goods for the consignee’s benefit, there can be no such acceptance where the consignee, after the arrival of the goods at the point of destination and before he has had a reasonable time to remove them from the carrier’s possession, refuses to accept them and throws them back upon the carrier with the statement that the goods are defective and are not in accordance with the consignee’s contract with the consignor.

The payment by the consignee of the freight charges upon the entire shipment and a receipt by him from the carrier of a part of the goods shipped, and leaving the balance in the possession of the carrier, althoirgh the consignee intends subsequently to remove them, does not, when he afterwards refuses to remove the remainder of the goods from the possession of the carrier and authorizes the carrier to return.them to the consignor, in my opinion, amount to an acceptance of the entire shipment.

The consignee’s act fourteen days afterwards, and after the storage charges had accrued, in telling the depot agent of the. carrier to reship the goods to the consignor, amounted to no more than a reaffirmation of the consignee’s repudiation of the shipment in the first instance and throwing it back upon the carrier. It certainly is not inconsistent with this former act of the consignee. The carrier at the time had already become under a duty to reship the goods to the consignor if the consignor had so directed. In any event the carrier had become under a duty to hold the goods for the benefit of the consignor and not for the benefit of the consignee. Such a statement by the consignee amounted to no more than the consignee’s telling the carrier that which the consignee believed to be the carrier’s duty to do under the circumstances. Be that as it may, this statement by the consignee, made about fourteen days after the rejection of the shipment, did not demand the inference that he intended thereby to abandon his rejection of the shipment and to assume jurisdiction over it as owner or as one having a right to control it, or that the agent of the carrier so understood the consignee. Nor does the fact that the consignee accepted from the carrier the bill of lading under which the goods were reshipped to the consignor demand such an inference.

If the consignee, who had accepted and taken part of tire goods from the carrier, had, after having refused to accept the remainder of the goods in the carrier’s possession, returned to the carrier some of the goods which he had actually taken, the return of such goods was an act perfectly consistent with the consignee’s refusal to accept the goods remaining in the carrier’s possession. An acceptance by the carrier of the goods so returned (which the carrier was under no duty to accept) amounted to no more than an agreement between the carrier and the consignee to augment the goods rejected, by the addition of those returned, and thereby place the returned goods in the same status with those which had never been delivered, but which had been rejected, and as treating all the goods, including the returned goods, as having been rejected by the consignee.

I am therefore of the opinion that the carrier was not entitled to recover of the consignee the storage charges which accrued after he had refused to accept the goods. The evidence certainly did not as a matter of law establish such a right. I am of the opinion that the verdict for the plaintiff carrier was improperly directed, and I can not therefore concur in the opinion of the majority of the court or in the judgment of affirmance.


author: Peb Curiam.

text:
    15381.
    Allen v. Floyd.
    Decided February 28, 1925.
    Action for breach of contract; from Hart superior court—Judge W. L. Hodges. January 11, 1924.

      Z. B. Rogers, for plaintiff.

      A. S. Richardson, for defendant.
   Peb Curiam.

1. A provision in a contract for the sale of manure to be used as a fertilizer, that the seller is to deliver to the purchaser the best grade of manure that the seller can obtain “from the government corrals, as nearly free from foreign matter and moisture as possible,” obligates the seller only to furnish a manure as nearly free from foreign matter and moisture as it is possible to obtain from the government corrals, but such a contract was not complied with by furnishing a substance wholly worthless as manure because it consisted only of “mud and water and other foreign matter” and was not of “such a nature as to increase agricultural yield.” The contract, in describing the substance sold as “manure,” warranted that it should be such substance as would answer that description. If the commodity furnished did not comply with this warranty, the purchaser was not required to accept and pay for it, though it may have been as nearly free from foreign matter and moisture as it was possible to obtain from the government corrals. Mayor &c. of Savannah v. U. S. Fuel Corporation, 29 Ga. App. 573 (2) (116 S. E. 218), and cases cited.

2. Applying the foregoing ruling, the plea set forth a good defense, the evidence objected to was admissible to prove the same, and the verdict rendered for the defendant was authorized.

3. The plaintiff was not bound to furnish manure as free from moisture and other foreign matter as it was possible to obtain anywhere, as might possibly have been implied from an instruction that, if the jury believed that “on account of moisture and other foreign matter, it [the commodity tendered] was not the best grade of manure,” the plaintiff could not recover; but it is unnecessary to determine whether the charge was susceptible of such construction or not, since the exception thereto is confined to the complaint that it was error because all warranties were excluded except that the commodity would be furnished from the government corrals and be as nearly free from moisture and other foreign matter as any to be obtained from that source, which exception, under the ruling of paragraph 1 above, is without merit. Other exceptions to the charge of the court are controlled by the same ruling.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur. Stephens, J., concurs specially.


text:
    15435.
    Southern Railway Company v. Eichelberger.
    Decided February 28, 1925.
   Stephens, J.

1. In the rules of tlie interstate-commerce commission, regulating the handling by carriers in interstate commerce of packages containing explosives accepted for transportation, it is provided that “In handling packages of explosives at stations,- and in transferring them to and from ears, the greatest care must be taken, and shocks or falls liable to injure the containing package must be avoided,” that “careful men must be chosen to handle” explosives, and that it is the duty of carriers to thoroughly instruct their employees in relation to those regulations.

2. Where boxes in which were aeroplane flares,—mechanisms containing explosives,—and on the outside of which were markings in letters and characters as required by the regulations of the interstate-commerce commission, indicating that the boxes contained dangerous explosives which under the regulations should be handled with the greatest care, were received by a carrier from employees of a United States arsenal for transportation in interstate commerce, it is inferable that the carrier had notice that the boxes contained explosives which should be handled in accordance with the above-mentioned regulations of the interstate-commerce commission; and it is evidence of negligence and a lack of due care on the part of the carrier, and a violation of the above regulations, that the carrier allowed one of the boxes, which weighed about 180 or 200 pounds, to be handled upon the platform, preparatory to loading into a car, by an employee detailed to handle it who could not read and who had not been instructed as to the character of its contents and of the necessity of handling it with any great degree of care, and who handled it by “walking” it across the platform,—that is, by moving it along the platform upon first one corner and then another, in the manner in which trunks are moved, and picking it up alone and struggling with it and placing it upon a float without assistance.

3. Where it appears that the flares contained in the boxes shipped, which were devices designed to become automatically ignited by the contact of two chemicals and cause an illumination over an expanse of territory when released and dropped from an aeroplane in flight, were so constructed, by reason of their having been manufactured for experimental purposes, that the chemicals therein were not securely placed and could easily be dislodged by slight jars and thereby caused to come together and cause ignition, it is inferable from the evidence that the handling of the box containing one of such flares in the manner indicated ' would cause a dislodgment and a coming together of the chemicals, and thereby produce an explosion.

4. Where the box containing the explosive, while being handled as indicated above, exploded and injured one of the carrier’s servants standing near by, the evidence authorized the inference that the injury was caused by the carrier’s negligence. In a suit by the injured person against the carrier to recover for such injuries, the verdict found for the plaintiff was authorized.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonour.

-Action for damages; from Biclimond superior court—Judge Franklin. February 15, 1924.

Gumming & Iiarper, for plaintiff in error.

0. Vernon ElUott, A. B. Williamson, contra.


text:
    15442.
    Burton v. Georgia & Alabama Warehouse Co.
    Decided February 28, 1925.
   Stephens, J.

1. In a suit by a corporation to recover the amount of a subscription to its capital stock, where the subscription was made upon the condition that a certain amount in capital stock should be subscribed, it was not necessary, in alleging that the amount to be subscribed had been subscribed, to attach a full list showing the names of the subscribers or the amount subscribed by each.

2. That part of a plea in defense to such a suit, which alleges that the amount of the subscription which was a condition precedent to liability was never obtained, in that “many of the subscriptions actually taken . . 'were at the time worthless, uncollectible, and of no value, . . ' were from people who were insolvent and unable to pay their obligations, . . were given by minors and corporations, . . and for the reasons' above stated the subscription made by this defendant was never legally binding upon him and can not now legally be enforced,” is insufficient as against a special demurrer, in that it does not set out the names of the minors or of the corporations subscribing, or what subscriptions were invalid, or the amount of the subscriptions made by insolvent persons or by minors.

3. Also, that part of a plea which alleges that the objects of the corporation have been wholly abandoned, and that the corporation, out of the proceeds of the payments made by the subscribers, purchased land wholly unnecessary for the purposes of the corporation, and otherwise disposed of the proceeds so derived, for purposes beyond the power of the' corporation, sets forth no legal defense, in that it does not show that the corporation in so doing was acting beyond its corporate powers. Bunn v. Farmers Warehouse Co., 18 Ga. App. 567 (90 S. E. 78).

4. That part of a plea v'hieh alleges, that, after committing the acts nanated above, it was determined, at a meeting of the stockholders and directors of the corporation, that only three fourths in amount of the capital stock should be called for, and that the remaining fourth in amount of the subscriptions was released, and that this act was after-wards ratified and approved by the corporation, through its proper officers and agents, by accepting the three fourths in amount of the subscriptions, issuing stock-certificates therefor to the subscribers who had actually paid the three fourths as agreed, and receiving the proceeds of this new agreement and accepting whatever benefits may have resulted therefrom, sets out a legal defense, and is good as against the demurrer.

5. Eor the reason set out in paragraph 4 above, the court erred in striking one of the defenses, upon the demurrer interposed.

Judgment reversed.

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

Complaint; from city court of Floyd county—Judge Bale. February 8, 1924.

C. I. Carey, for plaintiff in error.

Denny & Wright, contra.


text:
    15447, 15448.
    Norman & Griffin v. Shealey; and vice versa.

   Stephens, J.

1. A contract to purchase the standing timber upon described land, to be sawed into lumber by the purchaser and sold, and a certain percentage of the proceeds paid to the owner of the land as compensation for the timber, is a sale of an interest in land, and, under the statute of frauds, is required to be in writing'.

2. Where such a contract, which was in parol, further provided that the purchaser was to move a sawmill upon the premises, to be used by him for the purpose of performing the contract, an installation of a sawmill thereon by the purchaser, in accordance with the terms of the contract, and a preparation to perform the contract, by building upon the land a number of houses for the purpose of housing the laborers in and about the sawmill, and erecting barns for live stock, to be used in the performance of the contract, and digging several wells upon the land, for the purpose of supplying water to the sawmill, the laborers, and the live stock engaged in the performance of the contract, moving the laborers into the houses, and the building upon the land of a residence to be occupied by the superintendent of the mill, all to the expense of $2,000 to the purchaser, and the cutting by the purchaser of about one half of the timber on the lands and manufacturing' the same into lumber as provided in the contract, and paying to the seller more than $8,000 as the seller’s part of the purchase price, constitute such part performance of the contract as may, under section 3223 (3) of the Civil Code (1910), take the contract without the statute of frauds. In that the purchaser made valuable expenditures, such as erecting houses and digging wells upon the land and improving the timber by converting it to lumber, and selling, for the benefit of the owner, under the terms of the contract, the timber actually cut, this ease is distinguishable from Baucom v. Pioneer Land Co., 148 Ga. 633 (97 S. E. 671).

3. In such a case the purchaser’s measure of damages for a breach by the seller in ousting him from the lands and preventing further performance was the purchaser’s profits inhering in the contract (Civil Code, § 4394; Anderson v. Hilton &c. Lumber Co., 121 Ga. 688, 49 S. E. 725), which is the difference between the cost of converting the standing timber into merchantable lumber under tne terms of the contract and the market value of the finished product, less the percentage of such difference contracted to be paid to the owner.

4. While profits inhering in an unperformed contract can not be recovered unless capable of being definitely ascertained, yet where the above-mentioned elements in the determination of the profits inhering in the contract can be determined by competent evidence, the damages, although more or less speculative, are nevertheless computable.

Decided February 28, 1925.

Action for breach of contract; from Colquitt superior court— Judge W. E. Thomas. February 19, 1924.

Application for certiorari was denied by the Supreme Court.

C. E. Hay, Askew & Mather, for plaintiffs in error in main bill of exceptions.

John P. Coyle, James L. Bowling, contra.

5. In a suit by the purchaser against the seller to recover damages to be measured by the profits inhering in the unperformed contract, the petition set out a.cause of action, and the court did not err in overruling the defendant’s demurrer, based upon the ground that the contract sued upon was unenforceable under the statute of frauds, but did err in sustaining the defendant’s demurrer to the measure of damages as set out in the petition.

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

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


text:
    15562.
    Georgia Railway & Power Co. v. Simms.
   Stephens, J.

1. Where two street-cars are at the _ terminus of the line, in a public street, standing tandem, with a space between them of about seven or eight feet, a person who goes between them does not thereby become either a trespasser or a volunteer, since he is in a public street where he has a right to be. Going between the ears may, however, under the circumstances, amount to negligence- If he, without authority, after placing- himself between the cars, intermeddles with the mechanism of one of them by adjusting its trolley and thereby preparing the ear for a return trip, he does not by so intermeddling, or by going between the ears solely for that purpose, deprive himself of the status of one lawfully between the cars. If he thereby becomes a volunteer, he is a volunteer only as to the act of adjusting the trolley.

2. A volunteer is deprived of a right to recover for any injury received while he is occupying the status of a volunteer only because the fact of his being a volunteer is a contributory cause of the injury and without it the injury would not have occurred. Where, in such a case as that stated above in paragraph 1, the person acting as a volunteer in adjusting the trolley of one of the cars is injured by the other car rolling-down the track and coming upon him and crushing him between the cars, he is not debarred from a recovery against the street-car company owning and operating the cars, where the injury is proximately caused by the negligence of the company in permitting the car to roll down upon him, and where his voluntary act in adjusting the trolley is in no wise a proximately contributing cause of the injury. Davis v. Savannah Lumber Co., 11 Ga. App. 610 (75 S. E. 986).

3. Although the agents of the street-ear company, in charge of the car upon which the injured person was adjusting the trolley, may have' had no authority to permit him to adjust it, and although evidence of such permission by any of the motormen or conductors operating cars which turned back at this point may be irrelevant, as tending to destroy tlie injured person’s character as a volunteer in this respect, nevertheless, evidence that the injured person and others, who frequently boarded street-cars at this point, had, for some time immediately prior thereto, been accustomed, with the consent and knowledge of the motormen and conductors of the street-cars, to run out and assist such employees in adjusting the trolleys and preparing the cars to make return trips, is, in a suit by tlie injured person against the street-ear company to recover for such injuries, relevant as tending to establish a duty upon the part of the street-car company, through its agents operating the ears, to anticipate the dangerous situation of the plaintiff, and .also as tending to show negligence on its part under all the circumstances. Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592); Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060).

4. There being evidence that the plaintiff had worked prior to the injury and received certain compensation therefor, and therefore evidence as to his earning capacity, the admission in evidence of the annuity tables, and the charge of the court thereon, were not error upon the ground that the plaintiff was a youth at school and had not adopted a trade or profession.

5. A charge to the jury as to a contention not supported by the evidence is not necessarily error. It was not error to state, as one of the contentions of the plaintiff made in the petition, that the -defendant’s servants were negligent in failing for a time, after the injury, to stop the flow of blood from the plaintiff’s wounds, although there may have been no evidence to substantiate such allegation of negligence. Matthews v. Seaboard Air-Line Railway, 17 Ga. App. 664 (87 S. E. 1097).

6. The court did not err in admitting evidence that the motorman who operated the car that rolled down upon the plaintiff was an extra motorman and had been with the defendant company about seven-or eight weeks, and evidence that another motorman, the day before the injury, had trouble as respects the operation of the brakes upon this particular car, such evidence being relevant as tending to show inefficiency or lack of experience on the part of the first motorman in control of the car, and to establish negligence on the part of the defendant as charged by the petition.

7. The statement which the motorman of the car which rolled down upon .the plaintiff and caused the injury was heard -to make, to the effect that his “brakes would not work,” and that he tried to reverse the car and “it would not work,” was made immediately after the impact which injured the plaintiff, and was properly admitted as a part of the res gestaj.

8. Evidence of a motorman who had operated the car which ran down upon the plaintiff, to the effect that if the air-brakes on this ear had been good brakes and had been properly set up, they would have held tlie car, was not objectionable as being a conclusion. The condition •stated was so manifestly pregnant with the conclusion stated that the admission in evidence of the conclusion of the witness was not error.

Decided February 28, 1925.

Action for damages; from DeKalb superior court—Judge Hutcheson. March 10, 1924.

Application for certiorari was denied by the Supreme Court.

Colquitt & Conyers, for plaintiff in error.

Alston, Alston, Foster & Moise, Branch & Hoiuard, contra.

9. A statement made by one of the street-ear motormen, that the air-brakes upon the ear which ran against the plaintiff leaked, and that the car “took a lit and ran away,” was not subject to the objection that it was a conclusion.

10. An extrajudicial statement, which the motorman who on the day before the injury operated the car that ran upon the plaintiff made when referring to the occurrence, that the air-brakes on that car leaked, and that the car “took a fit and ran away,” was relevant as tending to impeach this motorman’s testimony, previously given, wherein he had denied making such a statement. The testimony wherein he had denied making the statement relative to the air-brakes leaking and the car running away was relevant.as tending to impeach the testimony which he had delivered to the effect that when he ran the car he had no trouble with the brakes, and that he did not know what caused the car to run away.

11. A remark made by counsel for the plaintiff, to the effect that the witness could come down if counsel for the defendant objected to certain testimony from the witness, was not objectionable as putting the defendant in the unfavorable light before the jury of attempting to suppress evidence. It was not error for the court^ to overrule the defendant’s motion for a mistrial upon that ground.

12. The verdict found in the sum of $37,500 can not, as a matter of law, be regarded as excessive, in view of the fact that the plaintiff, who was a youth eighteen years of age, with a long expectancy in life, was so injured that his leg had to be amputated above the knee, and that he lingered for a long time in a hospital, undergoing numerojis dangerous and painful operations necessitated by the injury, and will go through life suffering pain and the mortification of being disabled and disfigured, and with impaired earning capacity.

13. The charge was in all respects fair to the defendant, and was not subject to the objection that the court anywhere therein expressed an opinion on the facts.

14. There was evidence from which it could be inferred that the injuries received by the plaintiff were proximately caused by the negligence of the defendant in permitting one of its cars, by reason of insecure or defective brakes, to run down upon him, and not by the act of the plaintiff in going between the cars or by his act in adjusting the trolley.

15. The verdict found for the plaintiff was authorized, and no error of law appears.

Judgment affirmed.

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


text:
    15691.
    Southern Railway Company v. Powell, administratrix.
    Decided February 28, 1925.
    Action for damages; from Richmond superior court—Judge A. L. Franklin. May 10, 1924.

      Gumming & Harper, for plaintiff in error.

      Isaac 8. Peebles Jr., William M. Howard, contra.
   Stephens, J.

It appearing that the plaintiff’s intestate, who, while an employee of the defendant railroad, in the discharge of his duty, received injuries from a second explosion in the defendant’s freight-depot, where he was employed as a clerk, which occurred about ten or fifteen minutes after the explosion referred to in the case of Southern Railway Co. v. Eichelberger, ante, 532 (126 S. E. 912), and after.the plaintiff, in compliance with an order from an agent of the defendant, in general charge of the depot and the men working there, had gone back into the building for the purpose of rescuing some of the employees injured in the first explosion, and it being inferable that the second explosion was but a continuance of the first explosion, and that the first explosion was caused by the negligence of the defendant, in the manner in which certain explosives it had received for shipment were handled, a verdict for the plaintiff was authorized.

Judgment affirmed.

Jenkms, P. J., and Bell, J., concur.


author: ■Stephens, J.

text:
    15728.
    Crawford v. Jackson.
    Decided February 28, 1925.
    Attachment; from Fulton superior court—Judge E. D. Thomas. May 30, 1924.

      Walter A. Sims, J. E. Berman, for plaintiff in error.

      H. B. Moss, Neufville & Neufville, contra.
   ■Stephens, J.

The evidence authorized the inference that the clerk of the superior court inadvertently failed to enter the date of filing on the declaration in attachment, which was filed within the time allowed by law; and the court did not err in ordering the clerk to make a nunc pro tunc entry of the true date of filing" and in overruling the motion to dismiss the dec]aration in attachment.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
      15767.

    Alliance Insurance Co. v. Williamson et al.

    Decided March 3, 1925.
   Bloodwobth, J.

At the first term of court after this suit was filed the defendant, under the provisions of § 5560 of the Civil Code of 1910, traversed the return of service. The deputy sheriff who made the entry of service and the sheriff were made parties to the traverse and acknowledged service. Until legal service on the defendant, the court had no jurisdiction to pass any order in the case, unless it was an order to dismiss the case for lack of service. The issue qf fact raised by the traverse should have been disposed of by a trial. Dozier v. Lamb, 59 Ga. 461 (1), 462 (1); Parker v. Rosenheim, 97 Ga. 770 (2) (25 S. E. 763). The court erred in striking the traverse, and the further proceedings were nugatory.

However, it is conceded by both parties that the copy of the declaration which was served upon the defendant did not have attached to it a copy of the insurance policy sued on; and as it appears that the petition, without such copy attached, would be subject to the special demurrer filed upon this ground, the only legal result that would follow a trial of the traverse would be to find that the defendant had not properly been served. Therefore, in the interest of time and expense, and under the broad powers given this court, it is ordered that at the first term after the remittitur is filed in the lower court, that court enter an order declaring that no proper service has been perfected on the defendant, and directing the clerk of the city court of Richmond county to make a copy of the original petition, including a copy of the policy of insurance attached thereto, and that the sheriff serve the defendant with said copy, and that the next term of said court after said service stand as the trial term of the case.

Judgment reversed, with direction.

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

••Action on insurance policy; from city court of Richmond county —Judge Black. May 23, 1924.

Smith, Hammond & Smith, Hull & Barrett, for plaintiff in ■ error.

W. Inman Curry, contra.


author: Bloodworti-i, J.

text:
    15780.
    Cohen v. Galbraith.
    Decided March 3, 1925.
    Damages; from city court of Atlanta—Judge Reid. May 24, 1924.

      Carl B. Copeland, for plaintiff in error.
    Harwell, Fair-man & Barrett, contra.
   Bloodworti-i, J.

This is a companion case to that of Cohen v. Phipps, ante, 431 (126 S. E. 881); similar questions are involved, and it is controlled by the opinion in that case.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    15813.
    HOME ACCIDENT INSURANCE CO. et al. v. WILLIAMS et al.

    When a case arising under the Georgia workmen’s compensation act is pending on review before the full commission, as is provided by section 58 of the act (Ga. L. 1920, p. 198), the power of the commission is limited by the provisions of that section, and it has no authority to remand a case to one of the commissioners for the purpose of taking-additional testimony and making a new award.
    Decided March 3, 1925.
    Appeal; from Macon superior court—Judge Littlejohn. June 17, 1924.
    Bill Williams lost his life while working as an employee of Brasington Lumber Company at a sawmill in Macon county, Georgia. The Brasington Lumber Company had qualified as an insurance carrier under the terms of the workmen’s compensation act by taking out a policy of insurance with the Home Accident Insurance Company. Albert and Mattie Williams appeared as claimants, asserting that they were the parents of Bill Williams and were dependent upon his wages, and that he had contributed substantially to tlieir support. The case was heard before Commissioner Ehlburn, who passed an order in which he held that no dependency or contribution was proved. He rendered an award in favor of the claimants for medical and funeral expenses, but in every other respect their claim was disallowed. The claimants filed an appeal to the full commission. When the case came before that body the following order was passed:' “This case came before the Industrial Commission for review, upon application of the claimants. After carefully considering this matter the Industrial Commission decided to remand this case for the purpose of taking testimony with respect to the value of the labor of the deceased to Albert and Mattie Williams while working for them upon the farm. When this fact has been established, the commissioner hearing this case will write a new award, taking into account the evidence already brought out and additional evidence relative to the value of the service of this boy to his father and mother as a farmhand.” From this order the employer and the insurance carrier appealed to the superior court of Macon county, contending that “the Industrial Commission of Georgia has no power or jurisdiction to order a new trial on the facts in such cases, and has no power or jurisdiction to order a rehearing in said case; and that the Industrial Commission of Georgia has no power or jurisdiction to enter an order on an appeal in such a case, except an order awarding or denying compensation to the claimant on the evidence presented to the commission as a whole on the hearing of said appeal; and . . further . . that the order and decree of said commission is contrary to law.” On the hearing of this appeal the presiding judge entered an order approving the finding of the full commission in remanding the case for the purpose of taking additional testimony; and the employer and the insurance carrier sued out a bill of exceptions.

      Brock, Sparks & Bussell, for plaintiff in error.

      John M. Greer, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

Section 58 of the Georgia workmen’s compensation act (Ga. L. 1920, pp. 167, 198) provides that when a case reaches the commission on appeal, “the full commission shall review the evidence, or, if deemed advisable, as soon as practicable, hear the parties at issue, their representatives and witnesses, and shall make an award and file the same in like manner as specified in the foregoing section, together with its rulings of law in the premises.” It is clear that this section means that when a case reaches the full commission for review, it is for a hearing, on its merits, a de novo investigation, with full power in the commission to “hear the parties, their representatives and witnesses,” and to make an award covering the entire case. The Industrial Commission is a body created by the legislature to administer the provisions of the workmen’s comjfensation act, and has no power or authority other than that given it by the act creating it, or such as arises therefrom by necessary implication, to carry out the full and complete exercise of the powers granted. It has a procedure which was provided for by the legislature of the State. See Gravitt v. Georgia Casualty Co., 158 Ga. 613 (123 S. E. 897). What the full commission can do when a case is before it on appeal is absolutely settled by section 58, and this section gives the full commission no authority whatever to. remand a case to one of the commissioners for the purpose of taking additional testimony and making a new award.

Under this ruling the judge of the superior court erred in approving the finding of the full commission, and in remanding the case for the purpose of taking additional testimony and making a new award; and the case stands on appeal as though these orders had not been taken with all the rights given the full commission by section 58, supra.

Judgment reversed.

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


text:
    15978.
    COLEMAN et al. v. SOUTHERN EXCHANGE BANK OF DUBLIN.
    The evidence being in conflict upon the issues made by the defendant’s plea, the court erred in directing a verdict.
    Decided March 3, 1925.
    Complaint; from city court of Dublin—Judge Sturgis. October 11, 1924.

      T. E. Hightower, for plaintiffs in error.

      L. L. Porter, B. G. Hicks, contra.
   Bloodworth, J.

The Southern Exchange Bank brought suit on a note against the Coleman Motor Company, alleging that it was a firm composed of R. C. and A. T. Coleman. The defendants filed a plea in which they denied any liability as a firm, and alleged that “the Coleman Motor Company, the signer of the note sited upon, was a duly organized and chartered corporation under the laws of Georgia, and received all the benefits of the consideration of the note sued upon, [of] all of which the plaintiff had notice.” To this plea no demurrer was filed. The evidence as to whether the note was that of the firm, which for a while did business as the Coleman Motor Company, or was the 'obligation of the corporation of the same name which succeeded the partnership, and as to whether the bank had notice of the dissolution of the firm, was in sharp and direct conflict, and the judge erred in not submitting, these issues of fact to a jury.

Judgment reversed.

Broyles, O. J., and Buhe, J., concur.


text:
    15982.
    LEE v. GEORGIA RAILWAY AND POWER COMPANY.
    The striking of an intending' passenger by a street-ear when he was standing near the track at a usual stopping place after he had signalled to the conductor to stop the car did not authorize a recovery under his evidence in this case, from which it appeared that when the car was about fifty feet from him he turned his eyes away from it and put his hand in his pocket for his fare, and that about that time the car struck him. The court did not err-in granting a nonsuit.
    Decided March 3, 1925.
    Action for damages; from DeKalb superior court—Judge Hutcheson. September 5, 1924.

      Hendrix & Buchanan, H. C. Benton, Branch & Howard, for plaintiff.

      Colquitt & Conyers, for defendant.
   Bloodworth, J.

The plaintiff sued for damages on account of injuries sustained by him by being struck by a street-car of the defendant. The injury occurred where the street-car tracks cross Montgomery street and where there is a public stopping place for the street-cars. Plaintiff lived near this crossing and stopping place, frequently boarded the cars there, and was familiar with the location and the situation. At the time that the plaintiff was struck he was waiting for the purpose of boarding a car which he could see approaching, and to the conductor on which he gave a signal to stop. Thinking that the car would stop when it reached the usual place, and that he was far enough from the track for the car to pass without striking him, he took his eyes entirely off the car when it was about 50 feet from him and put his hand in his pocket for his fare, and about this time he was hit. The court granted a nonsuit and the plaintiff excepted.

Under the facts of this case and the principles announced in Moore v. S. A. L. Ry. Co., 30 Ga. App. 466 (118 S. E. 471), and Shroeder v. Ga. Ry. & Electric Co., 142 Ga. 173 (82 S. E. 553), the court did not err in granting the nonsuit.

Judgment affirmed.

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


author: Blood worth, J. Broyles, C. J.,

text:
    15996.
    Manning v. The State.
    Transporting intoxicating liquor; from Murray superior court-judge Tarver. September 27, 1924.
    IF. E. & IF. G. Mann, for plaintiff in error.

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

Where two persons were jointly indicted for transporting alcoholic liquor, and no other person was named in the indictment, and it was not alleged therein that these two and others engaged in the unlawful act, it was error, requiring- the grant of a new trial, for the judge to charge that if a named third person, “or other persons known or unknown, according to the evidence, transported whisky, and that this defendant was present aiding and abetting such other person or persons in the commission of their unlawful act, and participating in their criminal intent, the defendant is likewise guilty.” This instruction was error because under it the jury were authorized to return a verdict against the accused even though there was no evidence to show that he, in conjunction with the person jointly indicted with him, transported intoxicating liquor. Hubbard v. State, 123 Ga. 17 (51 S. E. 11).

As, under this ruling, a new trial is required, it is unnecessary to discuss other alleged errors, since they are of such a character that they will not likely recur on another trial.

Judgment reversed.

Luke, J., concurs. Broyles, G. J., dAssents.

Broyles, C. J.,

dissenting. In the light of the facts of the case and of the entire charge of the court, I do not think that the instruction complained of requires another hearing of the case. The evidence related to one transaction, and it was shown that this defendant and the other person indicted with him were present on that occasion, and that both of them were aiding in the commission o£ a misdemeanor. This case is easily distinguishable from that of Hubbard v. State, 123 Ga. 17 (51 S. E. 11). In. that erase the defendant was indicted with several other persons for gaming with cards, and there was no evidence that he played cards with any of the other persons named in the indictment.


text:
    16002.
    NABELL v. CITY OF ATLANTA et al. NABELL, by next friend, v. CITY OF ATLANTA et al.

    16003.
    1. Tlie Teclmolog'ical Higli Scliool being operated by the City of Atlanta for the use of the public and the education of the public at large, “its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to” operating the school for use by members of the general public.
    2. It would not affect the public character of the school that a purely incidental profit might result to the city from its operation.
    3. The city’s general demurrer to each petition was properly sustained.
    Decided March 3, 1925.
    Action for damages; from city court of Atlanta—Judge Reid. September 27, 1924.
    Harold E. Nabell, by next friend, brought suit against the City of Atlanta and R. S. Goulden for damages on account of personal injuries, and alleged: that petitioner was a resident of East Point, Ga., and attended the Technological High School of Atlanta, Ga.; that his father paid $100 per annum to the City of Atlanta for tuition fees in said school; that while a student at the school he was instructed by defendant Goulden, an instructor at the school, to do certain work which was a part of the curriculum of the manual-training course of the school, and which required the use of a rip-saw; that while using the rip-saw the petitioner sustained described injuries; that the defendants were negligent, in that they permitted petitioner, who was only 14 years of age, to use the said rip-saw “without the safety appliance being in place on said machine, and with the knowledge that said safety appliance had not been on said machine for a considerable length of time;” that the use of the rip-saw without the safety appliance was dangerous for one as young as petitioner; that because of his tender age he did not realize the danger; that the defendant Goulden knew or ought to have known that the safety appliance had been removed from the machine; “and that the negligence of said Goulden was also the negligence of the City of Atlanta, as said Goulden was at the time acting as an agent of the City of Atlanta.”
    E. G. Nabell, the father of Harold Nabell, brought suit against the same defendants for damages on account of the same injury, and sought to recover for expenses incurred and lost services of his son.
    Each defendant demurred generally and specially to each petition, and the general demurrers were sustained. The bill of exceptions in each case sets out that the court “passed an order sustaining the general demurrer filed by the defendant to plaintiff’s petition and dismissing plaintiff’s petition,” and “to this ruling, sustaining the general demurrer, dismissing the petition,” the plaintiffs excepted.

      Garitón 17. Binns, Ralph II. Pharr, Dorsey, Shelton & Dorsey, for plaintiff.

      James L. Mayson, Jesse M. Wood, for defendants.
   Bloodworti-i, J.

(After stating the foregoing facts.)

The first question that presents itself for consideration is whether or not the city, in operating this pubile school, was performing a governmental or a ministerial function; it being well settled that the city would not be liable in the performance of a governmental function. While the line of demarcation between these two functions is in some cases rather closely drawn, we think that in the instant case the city was engaged in the performance of a governmental function. The duty of educating its citizenry is one that devolves upon the State of Georgia as a sovereign power, and in the performance of this duty the State is discharging a function of government. If the State performs this function through one of its municipalities, and delegates to the municipality such power as may be necessary for the education of the public, “the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely governmental function, affecting the welfare not only of the citizens resident within its corporation but of the citizens of the commonwealth generally, all of whom have an interest” in the education and consequent edification of the State’s citizenry. This principle of law was held applicable to public health in the case of Love v. City of Atlanta, 95 Ga. 133 (22 S. E. 29, 51 Am. St. Rep. 64), and we think it is in principle equally applicable to public education. In the case of Mayor &c. of Savannah v. Jordan, 142 Ga. 409 (83 S. E. 109, Am. Cas. 1916C, 140), the Supreme Court, quoting approvingly from a Virginia case, said (p. 411) that a municipal corporation, “in its public character, acts as an agency of the State, to enable it the better to govern that portion of its people residing within the municipality; and to this end there is granted to or imposed upon it, by the charter of its creation, powers and duties to be exercised and performed exclusively for public governmental functions. These powers are legislative and discretionary, and the municipality is exempt from liability for an injury resulting from the failure to exercise them, or from their improper or negligent exercise. . . It seems to be well settled that where the municipality undertakes to perform for the State-duties which the State itself might perform, but which have been delegated to the municipality,—such, for instance, as devolve upon the board of health of a city under its charter, for the protection of life and health and comfort of the community,—and in the exercise of such function under the department a private citizen is injured by the negligence of the servants of the department while engaged in such work, no cause of action arises against such municipality.” In Rogers v. City of Atlanta, 143 Ga. 153 (84 S. E. 555), the Siipreme Court held that “even if the cutting of a hole” in a building through which plaintiff stepped and was injured, “and the leaving of it in an exposed condition, was negligence on the part of the firemen, the city was not liable in damages to a person injured in consequence of the negligence. A municipality is not liable for the acts of its servants and officers in the performance of public or governmental duties.” See also cases there cited. The school in question being operated by a municipality “for the use of the public,” the case comes under the principle of the decision in Cornelisen v. City of Atlanta, 146 Ga. 416 (91 S. E. 415); 19 Ga. App. 436 (91 S. E. 510), where it was held: “Where a city maintains.a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city, in respect to keeping the park safe for use by members of the general public.”

The majority of rulings in other States are in accord with the foregoing principles laid down by our courts. In Wixon v. Newport, 13 R. I. 454 (43 Am. Rep. 35), a minor, by next friend, brought suit for injury sustained in one of the public schools, and alleged, as in the instant case, that the apparatus which caused his injury “was without sufficient guarding and protection,” and the Supreme Court of that State held “that the city was not liable for the injury suffered;” and cited in support of its decision several fire-department cases similar to the Rogers case, 143 Ga. 153, supra. In Bigelow v. Inhabitants of Randolph, 14 Gray 541 (Mass.), it was decided “that a town which had assumed the duties of school districts was not liable to a pupil attending school for injuries occasioned by a dangerous excavation negligently left in the school-yard.” In Hill v. Boston, 122 Mass. 344 (23 Am. Rep. 332), it was held: “A child attending a public school in a schoolhouse provided by a city, under the duty imposed upon it by general laws, can not maintain an action against the city for an injury suffered by reason of the unsafe condition of a staircase in the schoolhouse, over which he is passing.”

The next question involved is whether the charging of the tuition fee for a nonresident of the city would affect the public character of the school. In Gornelisen v. Oily of Atlanta, supra, it was held: “It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park.” And in the opinion the court said: “If in other respects the park be for public use as indicated above, it would not change its character if the city licensed a third person to maintain bath-houses, spring-boards, and the like, in one of the lakes in the park at which bathers might be entertained and bathing-suits supplied upon the basis of a charge therefor.” In Watson v. City of Atlanta, 136 Ga. 370 (71 S. E. 664), it was held that “a petition is demurrable where it is alleged that the plaintiff was injured in consequence of being struck by an ambulance which was negligently driven against him while he was in the exercise of due care, it appearing from the remainder of the petition that the ambulance belonged to and was being operated for a public hospital of a municipal corporation, which was under the control of the municipality through its board of officers, although it is averred that in the maintenance of the hospital the municipality ‘charged fees for patients entering therein/ this last averment not being tantamount to an allegation that the municipality maintained and operated the hospital for pecuniary gain and private profit.” The petition in the instant case did not allege that the city operated the school'“for pecuniary gain and private profit,” or anything tantamount thereto, or that it was operated primarily for profit; and the mere incidental charge for nonresidents would not affect the public character of the school.

In the light of the foregoing decisions and the facts of the eases under consideration, it is held that, the Technological High School being operated by the City of Atlanta for the use of the public and the education of the public at large, “its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to” operating the school for use by members of the general public; and it would not affect the public character of the school that a purely incidental profit might result to the city from its operation.

Under these rulings the trial court properly sustained the general demurrer of the City of Atlanta to each petition.

Judgment affirmed.

Broyles, 0. J., and Lulce, J., concur.


author: Bloodwortrt, J.

text:
    16062.
    COMMERCIAL TRUST CO. v. MOSS.
    Where a vehicle in which intoxicating liquor is being illegally transported in this State is seized, and proceedings to condemn the vehicle are instituted under the provisions of section 20 of the act approved March 28, 1917, and it is made to appear that the owner or lessee of the vehicle is unknown, and service is perfected by publication as is provided for in the act, this service is as effective on the owner or lessee as if he were known and had been served personally.
    Decided March 3, 1925.

      Trover; from city court of Fairbnrn—Judge Parker. November 3, 1924.
    The agreed statement upon which the case was tried shows the following facts: Mason bought from Freeman a Ford-truck, and gave notes for a balance of the purchase-price, secured by a contract (duly recorded) in which title to the truck was reserved in Freeman, by whom the contract and the notes were transferred to Commercial Trust Company without recourse. Subsequently the truck was seized by the deputy sheriff of Campbell county, Georgia, “while it was being operated by unknown parties for the purpose of transporting intoxicating liquors over the public highways of Campbell county, Georgia, contrary to the laws of said State.” A petition to condemn the truck was filed in the city court of Fair-burn, and service was perfected by publication as provided by law. On the hearing of the case tire judge passed an order condemning the truck, and at the sale under the order it was bought by Moss, “he being the highest and best bidder for cash.” The Commercial Trust Company brought trover against him for the truck, and the court rendered judgment in favor of the defendant. The plaintiff excepted, contending that it had no notice or knowledge of the condemnation proceedings or of the unlawful use of the truck; that a true owner who has had no actual service or personal notice of any kind can not be deprived of his property by such proceedings: and that a purchaser at a sale under such a proceeding acquires only such title as the person had who was using the vehicle for illegal purposes.

      Erie Ealey, G. IF. Peebles, for plaintiff.

      Lawrence S. Gamp, for defendant.
   Bloodwortrt, J.

(After stating the foregoing facts.) The automobile in this case was seized, condemned, and sold under the provisions of section 20 of the act approved March 28, 1917 (Act 1917, Ex. Sess., p. 16; 11 Park’s Code Supp. 1922, § 448 (0000)). That in the condemnation proceedings this act was complied with is shown by the order of the judge, which is as follows: “This case having been submitted to the court for determination without the intervention of a jury, upon an agreed statement of facts, and after argument heard, it is the opinion of the court that, inasmuch as the statute providing for the condemnation of automobiles seized in the act of transporting liquor by unknown parties was followed to the letter, and that notice of said condemnation proceedings was published, notifying all persons concerned of the pendency of such condemnation proceedings, the court holds: that, said service by publication having been perfected, the judgment of condemnation is conclusive upon the true owner of the automobile, whoever it may be, and, therefore, the court finds for defendant the costs of suit.” As the owner or lessee of the automobile was unknown to the authorities of Campbell county, service was perfected by publication as provided for in said act. This service is as effective on the owner or lessee as if he were known and had been personally served, and the judgment is conclusive as to such owner or lessee. Civil Code (1910), § 5554 (3); Smith v. Downing Co., 21 Ga. App. 741 (3) (95 S. E. 19).

The facts in the cases of Smith v. Spencer-Dowler Co., 24 Ga. App. 235 (100 S. E. 651), Lummus v. Hopkins, 31 Ga. App. 274 (120 S. E. 546), and others cited by counsel for the plaintiff, easily differentiate those eases from this case. •

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    16064.
    Wood v. The State.
    Decided March 3, 1925.
    Accusation of possessing and selling liquor; from city court of Floyd county—Judge Bale. November 5, 1924.

      Porter & Mebane, for plaintiff in error.

      James Maddox, solicitor, contra.
   Bloodwoeth, J.

A verdict of guilty of selling liquor was demanded by the evidence, which showed that two persons registered at a hotel as guests, and were shown to their room by the defendant—a porter,—• and when they entered the room he was asked if he could get for them some whisky; that he said he would see what he could do for them; and that in a few minutes he came back with a pint-bottle, which contained about a half pint of corn liquor, for which they paid him $1.50. The fact that ho never solicited the guests to buy from him, but that the first suggestion as to the whisky came from them, could not avail him as a defense.

Judgment affirmed.

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


author: Luke, J.

text:
    16065.
    King v. Neill.
    Decided March 3, 1925.
    Action for slander of title; from Muscogee superior court— Judge Munro. October 25, 1924.

      G. DeVon King, for plaintiff.

      A. W. GozarL, for defendant.
   Luke, J.

1. A petition by which the owner oí lands seeks to recover damages' for alleged libelous or slanderous words falsely impugning his title, but which fails to allege that the words were malicious, sets forth no cause of action. Civil Code (1910), § 4479; Schoen v. Maryland Casualty Co., 47 Ga. 151, 153 (93 S. E. 82).

2. Under the above-stated ruling the petition in the instant case did not set out a cause of action, and the court properly dismissed it on demurrer.

Judgment affh'med.

Broyles, C. J., and Blood/worth, J., concur.