text:
    16618.
    DEIBERT v. McWHORTER.
    1. By demurring on the ground that there was a misjoinder of causes of action, in that the plaintiff was proceeding ex contractu on the contract and ex delicto for deceit, the defendant became committed to that position, and the plaintiff therefore had the right to elect which cause of action she would prosecute; and, having elected to proceed in tort for the alleged deceit, she could so amend the petition as to conform and limit the allegations to that cause of action.
    2. The court did not err in not charging the jury to the effect that the plaintiff could not recover unless it appeared that she used ordinary care in investigating the defendant’s statements before accepting them as true.
    3. It is not cause for a new trial to the defendant that the judge in his charge to the jury, which included section 4410 of the Civil Code (1910), gave the following part of that section: “Mere concealment of such a fact, unless done in such a manner as to mislead and deceive, will not support an action.”
    4. The evidence authorized the verdict for the plaintiff. .
    Decided January 14, 1926.
    Rehearing denied February 13, 1926.
    Complaint; from Eulton superior court—Judge Humphries. May 33, 1935.
    Mrs. McWhorter sued Deibert, alleging, that he represented to her that he was secretary of an organization known as Citizens Safety Association, composed of certain business and civic concerns and supported by public subscriptions and contributions, and that two well-known public utility companies had pledged certain named large sums to meet the expenses of the organization, and he employed her to do certain stenographic work and furnish certain material in putting on a campaign for the association, she to be paid out of the subscriptions to the association; that she fully performed the services, and the work was delivered to and accepted by the defendant, by reason of which he “was indebted to her” in the sum sued for. She alleged that there was no such organization and that the two named public utility companies had not pledged funds as stated; all of which the defendant knew at the time of his representations; and that he failed and refused to pay the agreed sum to her. The defendant demurred on various grounds, one of which was that there was a misjoinder of causes, in that the plaintiff had joined an action on contract with an action in tort, “alleging that said defendant had been guilty of fraud, deceit, and misrepresentations.” This ground and one relating to a failure to allege any intent to deceive were sustained; whereupon the plaintiff amended the petition, striking the allegation of indebtedness and seeking to recover damages based on fraud and deceit. The grounds of demurrer attacking the allegations as being too indefinite were overruled. The jury found against the defendant, and he excepted, assigning error on the rulings stated above, and on the overruling of his motion for a new trial.

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

      D. J. Meyerhardt, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Where a petition alleged that the defendant was indebted to petitioner upon a contract for services, and that the defendant, by false and fraudulent representations, deceived her and caused her to make the contract and to perform the services for the defendant, and where the defendant specially demurred to the petition, on the ground that there was a misjoinder of causes of action, in that the plaintiff was proceeding ex contractu on the contract and ex delicto for deceit, etc., the defendant became committed to the proposition that the plaintiff had in fact proceeded both upon contract and upon tort. Consequently the plaintiff had the right to elect which cause she would prosecute; and, having elected to proceed in tort for the alleged deceit, she had the right so to amend her petition as to limit and conform the allegations of the petition to that cause.

“Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action.” Civil Code (1910), § 4410. Thus, where the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which needs must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other’s statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking up the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth. Cheney v. Powell, 88 Ga. 629 (15 S. E. 750); Ryan v. State, 104 Ga. 78 (30 S. E. 678). The rule is different where the matters thus governing the contract speak for themselves to each of the contracting parties alike; as where a purchaser of real estate, with full opportunity to examine it, voluntarily relies upon the statements of the opposite party. Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353). The court did not err in failing to charge the jury that the plaintiff could not recover unless it appeared that she used ordinary care in investigating the truth of such material statements made by the defendant, before accepting them as true.

Exception is taken to the following excerpt from the charge of the court: “Mere concealment of such a fact, unless done in such a manner as to mislead and deceive, will not support an action.” It is urged that such an instruction was unwarranted by the pleadings and proof, and was calculated to confuse the jury and injuriously affect the rights of defendant. The excerpt complained of is the latter portion of section 4410 of the Civil Code, which was given in charge in its entirety, as follows: “Wilful misrepresentation of material facts, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to mislead and deceive, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.” The excerpt complained of could not in any event have any sort of operation except in favor of the defendant, and therefore could not have adversely affected his rights. “It was not cause for a new trial that the judge read in charge to the jury a code section part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.” Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405); Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315 (5) (125 S. E. 891). Moreover, as was held by this court in Rutherford v. Irby, 1 Ga. App. 499 (57 S. E. 927): “In an action of deceit growing out of wilful misrepresentations of material facts, made to induce another to act, and upon which he did act to his injury, it is not reversible error to charge that ‘if the defendant did not wilfully conceal from the plaintiff some fact which he should have stated,' he would not be liable/ The affirmative wilful statement of a falsehood in reference to a particular matter necessarily includes the concealment of the truth as to that matter.”

The evidence authorized the verdict, and it can not properly be set aside for any of the reasons assigned.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16259.
    CARDEN v. HALL, for use, etc., et al.

    1. The legal title to a mortgage note, together with the right to the benefit of the security referred to therein, is assignable by the blank indorsement of the payee.
    2. In a suit upon a promissory note, instituted by the payee for the use of an assignee, where it appears that the assignee is the holder of the legal title, the assignee is the real party at interest. Although the petition may not have been amended by striking the name of the nominal party plaintiff and substituting therefor the name of the assignee as plaintiff, there -may nevertheless be a recovery for the plaintiff upon evidence which sustains only the right of the assignee to recover, where such evidence has been admitted without objection.
    Decided January 15, 1926.
    Mortgage foreclosure; from Campbell superior court—Judge Hutcheson. December 20, 1924.

      J. F. Golightly, for plaintiff in error.

      J. W. Parker, contra.
   Stephens, J.

This was a proceeding to foreclose a mortgage note, instituted by W. H. Hall, for the use of the Bank of Palmetto, as assignee, against Mrs. F. M. Carden, as maker. It appears from the petition that the note was executed by Mrs. Carden as principal, and by Taswell Carden as security, and was payable to the order of W. H. Hall, and that it was indorsed in blank by the payee. It also appears from the petition that the Bank of Palmetto was a purchaser in due course. The defense interposed by Mrs. Carden was that she, in executing the note, did so as surety for her husband, that this fact was known to the payee, W. H. Hall, and that the Bank of Palmetto was not a purchaser in due course.

A mortgage note, together with the benefit of the security, may be assigned by an indorsement in blank. It appears, therefore, that the legal title to the note sued on was in the assignee, the Bank of Palmetto, and that the action could have been maintained by the Bank of Palmetto in its own name. Barnes v. Fleetwood, 5 Ga. App. 296 (63 S. E. 60). Civil Code (1910), §§ 3345, 3346, 3347, 4276. The suit was evidently brought by W. H. Hall, the payee of the note, for the use of the Bank of Palmetto, under section 3278 of the Civil Code (1910), which provides that “a mortgage transferred by written assignment may be foreclosed in the name of the mortgagee suing for the use of such assignee.” Since, however, the real party at interest is the Bank of Palmetto, ■which holds legal title, and W. H. Hall is a mere nominal party, the suit as brought could have been amended by striking the name of Hall, for use, and substituting therefor the name of the Bank of Palmetto as the real plaintiff. R. & D. Railroad Co. v. Bedell, 88 Ga. 591 (3) (15 S. E. 676); Woodbridge v. Drought, 118 Ga. 671 (2) (45 S. E. 266); Swilley v. Hooker, 126 Ga. 353 (55 S. E. 31). Although the petition was not amended in this respect, yet since it was so amendable, a recovery based upon evidence sustaining only the right of the Bank of Palmetto to recover may be maintained thereon, where such evidence was admitted without objection, although the verdict and judgment are in the name of the nominal plaintiff for the use of the Bank of Palmetto. To all intents and purposes the real plaintiff is the Bank of Palmetto. See, in this connection, Wortsman v. Wade, 77 Ga. 661 (4 Am. St. R. 102).

Where evidence to the effect that the Bank of Palmetto purchased the note in ignorance of the defendant’s alleged suretyship was admitted without objection, the court did not err in an instruction to the jury to the effect that such evidence would authorize a finding for the plaintiff.

Judgment affirmed.

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


text:
    16328, 16329.
    MASSENGALE et al. v. COLONIAL HILL COMPANY; and vice versa.

      A judgment sustaining a demurrer to a petition, which grants leave to the plaintiff to amend in a particular manner pointed out in the order, and which provides that, upon the plaintiff's refusal to amend, “when given tlie opportunity to do so by the court,” the “suit be dismissed,” is not a final judgment, and certiorari does not lie thereto.
    Decided January 15, 1926.

      Certiorari; from Fulton superior court—Judge E. D. Thomas. February 9, 1925.
    Suit was brought in the municipal court of Atlanta by Colonial Hill Company against W. E. Massengale and Geo. M. Kohn upon promissory notes which contained a reference to another contract. On consideration of the defendants’ demurrer to the petition the court passed the following order: “It is ordered that said demurrer be sustained with leave of court to plaintiff to amend by setting out the contract in question. And upon the plaintiff’s refusal to amend by setting out the contract referred to therein when given the opportunity to do so by the court, it is ordered that said suit be dismissed and defendants have judgment in this action against the plaintiff for costs.” The plaintiff sued out certiorari, and the certiorari was sustained upon the ground that the court erred in holding that the plaintiff’s petition was subject to demurrer because a copy of the contract referred to in the notes was not attached thereto. The defendants excepted to this ruling, upon the ground, among others, that the petition for certiorari should have been dismissed on the ground that the judgments excepted to were not final. Th'e plaintiff filed a cross-bill excepting to the failure to sustain the certiorari upon all the assignments of error contained in the petition for certiorari.

      E. Smythe Gambrell, Underwood, Pomeroy ' & Haas, for Massengale et al.

      George B. Rush, Robert T. Efurd, contra.
   Stephens, J.

(After stating the foregoing facts.) Under the ruling in Georgia Railway & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300), the order of the judge of the municipal court sustaining the demurrer is not a final judgment. While the order by its terms might have operated automatically to dismiss the petition upon the plaintiff’s failure to amend “when given the opportunity to do so by the court,” the order is not for this reason given the character of a final judgment. Nor does the fact that the plaintiff has excepted to this order, thereby refusing to amend before the expiration of the time within which the plaintiff would be allowed to amend, operate to establish the order as a final judgment. As was said in the case cited above, “the plaintiff could not, by suing out a writ of error before the expiration of the time allowed for amendment, change the interlocutory character of the order into a final judgment, since the character of the order was fixed as interlocutory by the court.”

It not appearing that the plaintiff failed to amend the petition within the time provided in the order, and that the order operated to dismiss the petition, the order is not a final judgment. So far as this record discloses, the time within which the plaintiff may amend has^not expired, and the plaintiff may still perhaps have the right to file the required amendment and prevent a dismissal of the petition on demurrer. Since a certiorari lies only to a final judgment (Civil Code (1910), § 5188), the petition for certiorari should have been dismissed. The judgment of the superior court sustaining the certiorari was therefore error. It is not necessary to consider the cross-bill of exceptions.

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

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


text:
    16424.
    Georgia Farmers Fire Insurance Company v. Tanner, trustee.
   Stephens, J.

1. Assuming that the petition in a suit by the insured to recover under a fire-insurance policy fails to allege facts sufficient to show a cause of action, in that it fails to contain any allegation showing that the insured had any insurable interest in the property, such omission may be supplied by amendment. Civil Code (1910), § 5682; German-American Ins. Co. v. Davidson, 67 Ga. 11; Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809); City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318) ; Dunn v. Freeman, 24 Ga. App. 504 (101 S. E. 393) ; Davis v. Carroll, 30 Ga. App. 719 (119 S. E. 422). This ruling is not in conflict with Northwestern National Ins. Co. v. Southern States Phosphate & Fertilizer Co., 20 Ga. App. 506 (93 S. E. 157).

2. Where a fire-insurance policy covers particularly described property which is referred to as “Bellview Sehoolhouse,” and names as the insured “M. T. Tanner, Trustee Bellview School,” it follows that in a suit by “M. T. Tanner, trustee,” to recover for loss under the policy, where the petition, as amended, alleges that at the time of the issuance of the policy and at the time of the fire title to the property insured “was in petitioner and others as trustees for said Bellview School,” all of which was known to the insurer at the time, the petition alleges an insurable interest in the plaintiff. Fenn v. New Orleans Mut. Ins. Co., 53 Ga. 578.

3. A suit brought by a person in his individual capacity, or as trustee, where it does not appear in whom the beneficial interest rests, is subject to an amendment supplying the names of the beneficiaries and alleging that the plaintiff brings the suit for their benefit. Ray v. Ray, 142 Ga. 290 (82 S. E. 892) ; Richmond & Danville R. Co. v. Bedell, 88 Ga. 591 (15 S. E. 676).

Decided January 15, 1926.

Complaint; from city court of Hall county—Judge Sloan. February 17, 1925.

Application for certiorari was denied by the Supreme Court.

Johnson & Adderholt, for plaintiff in error.

Charters & Wheeler, contra.

4. The petition as amended set out a cause of action, and was not subject to any of the demurrers.

Judgment affirmed.

Jenlcms, P. J., and Bell, J., concur.


text:
    16619.
    POUND v. BALDWIN.
    A -verdict in a trover suit, which reads, “We, the jury, find the property in dispute in favor of the defendant,” will, at the instance of the dedendant, be construed as a verdict finding for the defendant for the value of the property in the amount established by the plaintiff’s affidavit for bail, which is corroborated by the plaintiff’s own personal testimony upon the trial. This is true although the defendant may not, prior to the rendition of the verdict, have elected to take a verdict for the value of the property. A judgment entered thereon in such amount is supported by the verdict.
    Decided January 15, 1926.
    Trover; from Talbot superior court—Judge McLaughlin. May 7, 1925.
    This was a trover suit wherein the plaintiff made affidavit for bail, gave bond, and took possession of the property. The jury found as follows: “We, the jury, find the property in dispute in favor of the defendant.” Although no election to take a money verdict had been made by the defendant before verdict, the court at his instance entered judgment against the plaintiff in an amount equal to the value of the property as recited in the plaintiff’s affidavit for bail, which was corroborated by the plaintiff’s own undisputed testimony on the trial. The plaintiff excepted to the judgment, on the ground that it did not follow the verdict, and also that it amounted to a belated election of a money verdict by the defendant.

      W. M. Dallas, A. P. Persons, for plaintiff.

      J. U. McCehee, for defendant.
   Stephens, J.

(After stating the foregoing facts.) In a trover suit, where the losing party is in possession of the property, a money verdict in favor of the prevailing party, even though that party be the defendant, is permissible. Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24). Such a verdict may be accepted by the party in whose favor it is rendered, though he may have failed to make such election prior to the rendition of the verdict. Powers v. Franklin, 32 Ga. App. 641 (124 S. E. 363). It follows, therefore, that if the verdict found is properly construed as a money verdict, the party in whose favor it is rendered may accept it and take judgment thereon, although he may have failed to elect such a verdict prior to its rendition.

The verdict rendered, although it contains a finding in no amount, finds generally in favor of the defendant’s right to the property. It does not expressly award the property to the defendant, nor does it restrict the defendant’s right solely to the recovery of the specific property. Although the verdict might be susceptible to the construction that it awards the specific property to the defendant, and might authorize a judgment to that effect, it nevertheless is susceptible to the construction that it merely finds the right to the property in the defendant. Giving the verdict the latter construction, it is incomplete only in that it fails to specify the amount which the defendant is entitled to recover against the plaintiff in lieu of the property, which is in the plaintiff’s, possession. Since “verdicts are to have a reasonable intendment, and are to receive a reasonable construction” (Civil Code (1910), § 5927), there is no valid reason why this verdict should not be construed as one finding for the defendant against the plaintiff for the value of the property, and judgment may be entered thereon for the value of the property, inasmuch as such construction can be given to the verdict, and this value ascertained, without injuriously affecting any of the rights of the plaintiff against whom the verdict is rendered. Since the plaintiff swore in his affidavit for bail, and also testified upon the trial, that the property was worth $150, his rights can in no way be affected by the judgment against him for this amount.

The verdict is not necessarily incompetent to support a judgment for a specific amount of money merely because, in finding the right to a money recovery, it fails to find in any specific amount. In Colt Co. v. Pickron, 32 Ga. App. 715 (7) (124 S.

E. 550), it was held that, in a case where the plaintiff seeks a money recovery, a verdict for the plaintiff which fails to find .any amount will support a judgment entered for a specific amount, where the amount was undisputed and not issuable.

The suggestion that since the defendant had made no election of a money verdict and had not raised upon the trial an issue as to the value, or that since evidence as to value is in the nature of opinion evidence only and is not conclusive, the defendant should not be allowed to take a money judgment upon the verdict for the undisputed value of the property, is untenable. The plaintiff can not complain that the judgment against him is in an amount which he himself placed upon the property both in his affidavit for bail and in his own personal testimony upon the trial.

The judgment for the defendant against the plaintiff for $150 follows the verdict, and is not invalid because the party in whose favor it was rendered had not elected to take such verdict prior to its rendition.

Judgment affirmed.

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


author: Jerkins, P. J.

text:
    16417.
    Louisville & Nashville Railroad Co. et al. v. Barksdale.
    Decided January 16, 1926.
   Jerkins, P. J.

1. “The first grant of a new trial will not be disturbed by the Supreme Court, unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts required the verdict notwithstanding the judgment of the presiding judge.” Civil Code (1910), § 6204. - “However great the preponderance of evidence in favor of the party who was successful upon the trial of the ease in the lower court, the first grant of a new trial will not be disturbed unless it appears, upon examination of all the evidence, that the verdict as rendered was demanded; and as it can not be adjudged in the case at bar that the evidence requiring a finding in favor of the defendant, although the evidence is ample to support the finding in his favor, this being the first grant of a new trial, the judgment of the court below granting the new trial upon special grounds will be affirmed without an examination of such grounds for the purpose of determining their sufficiency.” Southern Railway Co. v. Ledingham, 136 Ga. 374 (71 S. E. 663); Thornton v. Travelers Ins. Co., 116 Ga. 121 (42 S. E. 287, 94 Am. St. R. 99). Accordingly, the action of the trial judge in granting this first new trial was not erroneous.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Action for damages; from Warren superior court—Judge Perry-man. March 20, 1925.

E. P. & J. Oecil Davis, Miles W. Lewis, for plaintiffs in error.

L. D. McGregor, contra.


text:
    16507.
    Sargent et al. v. Ramsey.
    Decided January 16, 1926.
    Trover; from city court of Savannah—Judge Freeman. April 24, 1925.

      Gilbert E. Johnson, Frederick A. Tuten, for plaintiffs in error.

      Eugene Pollard, contra.
   Stephens, J.

1. In a trover proceeding in which the plaintiff acquires possession of the property upon giving the required replevy bond, where the evidence authorizes the inference that the defendant had no right, title, or interest whatsoever in the property, a money verdict for the defendant is not as a matter of law demanded.

2. Upon the trial of such a suit against two defendants, where there was evidence that at the time of the seizure of the property it was in the possession of only one of them, and where the evidence authorized the inference that this defendant at the time held possession of the property solely as custodian for the levying officer of another court, to wit, the municipal court of Savannah, after an attachment had been levied upon the property, and there was no other evidence of right, title, or interest in the property in either of the defendants, the inference was authorized that neither of the defendants had any right, title, or interest whatsoever in the property other than that one of the defendants was bailee or custodian for the levying officer of the municipal court. It follows, therefore, that a money verdict found for the defendants against the plaintiff was not as a matter of law ■ demanded; and it does not appear that the trial court erred in setting aside the verdict and granting a first new trial.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    16526.
    Davis v. Menefee.
   Jenkins, P. J.

The industrial commission made an award for permanent injury in favor of Menefee, against Davis. On appeal to the full commission the award was sustained. It appears that the work being done was improving certain real estate belonging to the wife of Davis, for which the husband assumed responsibility. The commissioner and the commission held that the work was being done for Davis, and that he was subject' to the operation of the employer’s liability act. Davis filed an appeal to the superior court, where the award was affirmed on all grounds except that the case was remanded to the industrial commission for another hearing on the sole question of whether or not the work was being done for Davis by Calhoun, an independent contractor, or whether Menefee and Calhoun were both employees of Davis. On this hearing before the commissioner the only evidence submitted was that regarding independent eontractorship and how and by whom Menefee was employed. The commission again made an award in favor of Menefee against Davis, finding that Calhoun was not his independent contractor, but that both Menefee and Calhoun were employees of Davis. On the second appeal to the superior court the award of the commission was sustained, and to this judgment the defendant excepted, contending (1) that Davis was the mere agent for his wife in the improvement of her property, and could not be held liable under the proceeding instituted, and (2) that the evidence showed that the work was being done not by Davis, but by Calhoun as an independent contractor. Held:

1. There is no merit in the first contention made. “If the employer is in fact merely an agent and acts with the authority of an undisclosed principal, either he or such principal may be held liable at the election of the opposite party; but the contractual liability of such agent and principal is not joint, and, after an election to proceed against one, the other can not be held. Wylly v. Collins, 9 Ga. 223, 239; Lippincott v. Behre, 122 Ga. 543 (3), 545 (50 S. E. 467) ; Fontaine v. Eagle & Phenix Mfg. Co., 52 Ga. 31, 33; Commercial City Bank v. Mitchell, 25 Ga. App. 837 (2) (105 S. E. 57). If in point of fact the employer has acted without or beyond the authority of an alleged principal, he alone becomes personally liable (Peeples v. Perry, 18 Ga. App. 309, 373, 89 S. E. 461; Haupt v. Vint, 68 W. Va. 657, 70 S. E. 762, 34 L. R. A. (N. S.), 518, and case note) ; and even though he be acting in the capacity of agent and for the sole benefit of his principal, he may nevertheless by express undertaking bind himself personally. Civil Code (1910), § 3613; Phinizy v. Bush, 129 Ga. 479 (9) (59 S. E. 259).” Willingham v. Glover, 28 Ga. App. 394 (3), 396 (111 S. E. 206).

2, The proved facts and circumstances authorized the finding by the commissioner that the work was not being done by Davis through an independent contractor, but that Davis retained the direction and control of the work and that Calhoun was acting merely as foreman'and co-employee with the plaintiff, Menefee. This is true irrespective of any consideration of hearsay evidence. That certain hearsay evidence might have been admitted over defendant’s objection will not justify setting aside the finding in such a hearing which the statute provides “shall be as summary and simple as reasonably may be.” Park’s Code, § 3154 (aaa). The grounds on which the finding of the commission can be set aside are stated by the statute to be five grounds, as follows: “ (1) That the industrial commission acted without or in excess of its powers. (2) That the order or decree was procured by fraud. (3) That the facts found by the industrial commission do not support the order or decree. (4) That there is not sufficient, competent evidence in the

Decided January 16, 1926.

Appeal; from Fulton superior court—Judge Bell. April 11, 1925.

J. A. Noyes, Candler, Thomson & Hirsch, for plaintiff in error.

James E. Berman, contra.

record to warrant the industrial commission in making the order or decree complained of or, (5) That the order or decree is contrary to law. No order or decree of the industrial commission shall be set aside by the court upon any grounds other than one or more of the grounds above stated. If not set aside upon one or more of such stated grounds, the court shall affirm the order, judgment, decree or decision of the commission so appealed from.” Park’s Code, § 3154(ggg). As to whether such hearsay evidence might even have probative value in such a proceeding, see Stonega Coke &c. Co. v. Sutherland, 136 Va. 489, (188 S. E. 133); American Furniture Co. v. Graves, 141 Va. 1 (126 S. E. 213); Carrol v. Knickerbocker Ice Co., 171 App. Div. 970 (155 N. Y. Supp1097).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16572.
    Waters et al. v. Whitehurst.
    Decided January 16, 1926.
    Complaint; from Twiggs superior court—Judge Camp. April 4, 1925.

      H. P. Griffin Jr., B. A. Harrison, for plaintiffs in error.

      Jones, Park & Johnston, James D. Shannon, contra. \

   Stephens, J.

1. This being a suit upon an open account, to recover for merchandise delivered by the plaintiff to a third person, and there being evidence to authorize the inference that the goods were delivered to the third person at the instance of an authorized agent of the defendants, the law of principal and agent was applicable, and the court did not err in giving it in charge.

2. Where the evidence authorized the inference that an authorized agent of the defendants made a payment by check to the plaintiff for part of the goods which had been delivered, parol evidence that the check was signed in the name of the defendants by the agent who delivered it was improperly admitted over objection that the check was the best evidence of its contents. Since evidence that the check given in payment of the goods was signed by the defendants through their authorized agent tended to establish a ratification of the sale by the defendants, and the court in the charge to the jury having submitted the issue of ratification, the admission of such evidence was harmful and prejudicial to the defendants.

Judgment reversed.

Jenlovns, P. J., wnd Bell, J., concur.


text:
    16583.
    MARTIN v. DECATUR COUNTY et al.

    An execution could not be legally issued under section 523 of the Civil Code (1910) against the sheriff of Decatur county on the bond given by the sheriff of the city court of Bainbridge, although both offices may have been filled by the same individual.
    Decided January 16, 1926.
    Affidavit of illegality; from Decatur superior court—Judge Custer. May 20, 1925.

      G. G. Bower, B. G. Ilartsfield, P. D. Rich, A. G. Powell, M. E. O’Neal, for plaintiff in error.

      Pottle & Hofmayer, H. G. Bell, contra.
   Jenkins, P. J.

1. The record in this dase is not altogether clear, although it indicates that the execution authorized to be issued and issued under resolution of the commissioners was against S. W. Martin as sheriff of Decatur county, and against the sureties on this person’s bond, given, not as the sheriff of that county, but as sheriff of the city court of Bambridge, in that county. Counsel for the county, in their brief, made this statement: “The board of commissioners of roads and revenues of Decatur county, in regular meeting, passed a resolution adjudging that S. W. Martin, as sheriff of said county, and J. W. Callahan and H. L. Gans as surety on his bond, were indebted to the County of Decatur in a sum of money, together with interest, attorney’s fees, and cost, and directing that execution issue against the sheriff and the sureties on his bond for said sum.” It is not altogether clear from the record whether Callahan and Gans were sureties on the bond which Mann had given as sheriff of Decatur county, or on the bond required by law to be given as sheriff of the city court of Bainbridge; but from other portions of the brief of counsel for the county it is made clear that the bond upon which the county was thus proceeding was the bond which Martin had given as sheriff of the city court. Consequently we shall deal with the case as being against Martin as sheriff of the county, as the record shows, and upon his bond given as sheriff of the city court of Bainbridge, as the record, though ambiguous, indicates and as counsel for the county concede. Under this view of the facts in the case we are of the opinion that the execution can not be maintained as issued.

It clearly appears from the resolution of the county commissioners that the indebtedness claimed arose out of the acts and doings of Martin as sheriff of the city court of Bainbridge in receiving illegal cost in the conduct of his duties as sheriff of that court, but the resolution states that such alleged cost was paid not to the sheriff of that court, but to the sheriff of Decatur county. It was held in Williams v. Ellis, 22 Ga. App. 673 (97 S. E. 100), that where the office of sheriff of a county and the office of sheriff of a city court in that county were occupied and held by the same person, the two officers were just as distinct and separate as if they were in fact two separate and distinct persons. The court said: “When the sheriff of a county is also, by the act creating a city court for the county, sheriff of the city court, his acts are as separate when acting in the different capacities as if he were two persons. Consequently, where the ‘deputy sheriff’ levies a city court fi. fa., addressed ‘to all and singular the sheriffs of said State,’ upon real estate, and turns the fi. fa. over to the ‘sheriff of the county,’ and advertisement and sale of the property and deed to the purchaser are made by the sheriff of the county, and not as ‘sheriff of the city court,’ suit will not lie against the sureties upon the bond of the ‘sheriff of the city court,’ when it is made to appear that the sheriff illegally converted to his own use the money realized from the sale of the property; but the sureties on the bond of the ‘sheriff of the county’ would be liable.” That case is authority for the proposition that where two such separate and' distinct bonds were given, the sureties of one such officer could not be held liable on the bond given by the other officer. See also, in this connection, Wallace v. State, 160 Ga. 570 (128 S. E. 759).

In the instant case it follows that the bond given by the sheriff of the city of Bainbridge was not intended as a protection against the acts and doings of the sheriff of Decatur county, or vice versa. Without reference to the rights and remedies of the sureties, if the county undertakes to enforce the contractual liability of a certain officer, it must proceed against the officer who, as such, obligated himself; and this is true even though both offices happen to be filled by the same person. The county proceeds by virtue of section 523 of the Civil Code (1910), on the contractual obligation of the bond given by the sheriff of the city court of Bainbridge; and in doing so, it necessarily has to proceed against the official who thus rendered himself liable. It is urged that since the sureties on this bond are not appearing to make any such resistance, the sheriff of the said county can not make the same for himself or for his sureties. First of all, it appears from the record that such sureties could not legally have filed and maintained an affidavit of illegality, for the reason that the execution had not in fact been levied upon any of their property. But while it thus happens that the sureties can not for themselves'file an affidavit of illegality in their own names, it is nevertheless true that, being parties to the ex parte execution, they are not spared the direful consequences of having their property incumbered with the illegal lien of this execution. There is a very strong intimation in the reported case of a similar proceeding, set forth in Lewis v. Board of Comm’rs, 70 Ga. 486, that the officer may defend the proceeding for his sureties. The court said: “The sureties were parties to these two fi. fas., and the fi. fas. were the foundations of the suits returned to the court. That a suit admits of various defenses, joint and several, by all or each of the defendants, will not be questioned, but we have yet to learn that each separate defense makes a new and distinct suit.” As to the sureties the court said: “They chose to rely upon their principal to make defense for them.” We think, however, as has already been stated, that irrespective of whether the sureties may or may not he formally bound by the judgment, not having filed illegality, that the sheriff of the county may himself assail the execution and levy had thereunder just as fully and effecually as might his sureties on the bond proceeded under. We are directed by counsel for defendant in error to the case of Price v. Douglas County, 77 Ga. 163 (4), as indicating a rule to the contrary; but it will be observed that there are many distinctions between that case and this. There the proceeding was against a defaulting county treasurer, under an entirely different and special statute, Civil Code (1910), § 585. There was but one officer in that case; there was but one bond; and the facts of that case did not show a proceeding against one officer on a bond given by another. Since, as we believe, the execution was illegally issued and is illegally proceeding against the sheriff of Decatur county on the bond given by the sheriff of the city court of Bainbridge, the affidavit of illegality attacking the validity of the execution should have been sustained and the execution quashed and the levy dismissed.

■Judgment reversed.

Stephens, J., concur. Bell, J., disqualified.


text:
    16614.
    Bugg, receiver, v. Carter.
   Stephens, J.

1. The contentions of a defendant are not always found in the pleadings, but may be found in the evidence and in the defendant’s attitude during the course of the trial. In a suit against a railroad company, where the plaintiff alleged that she, 'while a passenger upon the defendant’s train, was assaulted by the defendant’s conductor, to her damage, and where the defendant filed a general denial of the allegations in the petition, and where the evidence tending to support the allegations respecting liability was uneontradicted, it does not appear that the trial court erred, as expressing an opinion upon the facts, in stating to the jury that it was the contention of the defendant that its conductor used no more force than was necessary to prevent the plaintiff from getting off the train, where it does not affirmatively appear that the defendant made no such contention.

2. Where, in such a suit, it appears from undisputed evidence, both of the plaintiff herself and of a physician introduced as a witness for the plaintiff, that the plaintiff suffered ill effects after the time of the alleged occurrence upon the defendant’s train, a charge by the court that it was a contention of the defendant that “the ill effects which plaintiff experienced after the time when she said that she was injured were not the result of the experiences which she had at that time,” if an expression of opinion upon the facts, was not an expression upon an issue in dispute, and therefore was not harmful to the defendant.

3. A statement that it was a contention of the defendant that the plaintiff “was not hurt in any sort of way by what occurred on the train” was not an expression of opinion by the court that anything occurred upon the train, as alleged and contended for by the plaintiff.

4. In such a suit, which is based upon the alleged wilful conduct of the ' conductor in assaulting the plaintiff, a charge as to the degree of diligence resting upon the defendant and as respects the defendant’s liability for negligence, if not appropriate and applicable to the issue made, was nevertheless harmless to the defendant.

5. In such a suit it was not error tending to confuse the jury or prejudicial to the defendant for the court to charge, in immediate connection, the law respecting the presumption of negligence resting upon the railroad company upon proof of damage, and the law respecting the degree of diligence due by a carrier to a passenger. Such a charge is not error for the reason set out in Americus, Preston & Lumpkin R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105).

6.. In such a suit newly discovered evidence, to the effect that about twenty days prior to the alleged assault upon the plaintiff by the defendant’s conductor, the plaintiff submitted to a transfusion of blood from herself to another person, and suffered physical weakness therefrom, is but corroborative of the plaintiff’s own evidence that at the time she was injured as alleged she was in a weakened condition. Such evidence might be considered by a jury in aggravation, rather than in a mitigation, of damages, and is therefore not calculated to produce a verdict for the defendant upon another trial. In the absence of any evidence tending to show that the plaintiff’s weakened condition as a result of such transfusion of blood bore any causal connection with the pains or ill effects which she claims to have suffered after the alleged assault upon her, such evidence is not calculated to produce a different result upon another trial.

Decided January 16, 1926.

Action for damages; from Bacon superior court—-Judge Reed. May 23, 1925.

I. J. Bussell, Wilson, Bennett & Pedrick, for plaintiff in error.

E. H. Williams, contra.

,7. Evidence tending to establish both liability and the plaintiff’s damage authorized the verdict found for the plaintiff in the sum of seven hundred dollars.

8. The court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    15300.
    KENNEY v. ARMOUR FERTILIZER WORKS.
    1. Where a surety suffers injury arising collaterally and not affecting the contract itself, “ the discharge is only to the extent of the loss or injury, and, if that be not as great as the liability of the surety, then pro tanto.”
    2. If there were any errors in the charge of the court, or in the refusal to permit counsel for the defendant to open and conclude the argument before the jury, under the ruling of the Supreme Court these errors were harmless.
    Decided February 4, 1926.
    Complaint; from city court of Blakely—Judge Gray. January 7, 1924.

      W. G. Park, Glessner & Collins, for plaintiff in error.

      Pope & Bennet, Lowrey Stone, contra.
   Bloodworth, J.

The facts will be found in the original opinion in this case, 33 Ga. App. 126.

In the brief of plaintiff in error is the following: “The controlling question before this court for determination is: Was the defendant surety under the uncontroverted facts wholly 'discharged’ from liability on the note by reason of plaintiff’s breach of its contractual duty to keep the cotton insured, or merely 'relieved’ pro tanto of his obligation to pay to the same extent as would be his principal were she a party to the suit?” This court held that under the pleadings and the evidence the surety was relieved from all liability. .By writ of certiorari the case was carried to the Supreme Court, and that court reversed the judgment of this court, and held that the surety was discharged pro tanto only. The headnote to that opinion is made a headnote to this one. For the full opinion of the Supreme Court see 161 Ga. 477 (131 S. E. 168).

Under the ruling of the Supreme Court in this case and the facts as shown by the record, a verdict disallowing any recovery by the defendant on his counter-claim was demanded. Hence, if there were any errors in the charge, or in the refusal to permit counsel for the defendant to open and conclude the argument before the jury, the errors were harmless and do not require another hearing of the case. Moreover, as to the last point, defendant’s counsel in their brief make the following statement: “If the defendant is not to be given an opportunity to recover on his cross-action against the plaintiff the proceeds of this indefensible sale of his cotton, then we wish to be understood as abandoning the last (11th) ground of his motion.” This ground of the motion complained of the refusal of the court to permit counsel for the defendant to open and conclude the argument before the jury.

Under the ruling of the Supreme Court it is ordered that the prior judgment of this court be vacated; and the judgment of the superior court is

Affirmed.

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


author: Luke, J.

text:
    15990.
    FIREMAN’S FUND INSURANCE CO. v. JACKSON.
    The conduct of the insurance company, set out in the plaintiff’s petition, did not constitute a waiver of the provisions of paragraphs (a) and (e) of the policy sued on. The court erred in overruling the general demurrer to the petition.
    Decided February 4, 1926.
    Action on fire insurance policy; from Dooly superior court— Judge Crum. September 37, 1934.

      Smith, Hammond & Smith, Whipple & McKenzie, for plaintiff in error.

      Henderson & Davis, Watts Powell, contra.
   Luke, J.

Mrs. J. T. Jackson sued the Fireman’s Fund Insurance Company on a fire-insurance policy. The defendant filed demurrers, both general and special. These were overruled and the insurance company excepted. In the following question, which was certified by this court to the Supreme Court, will be found sufficient facts for a full understanding of the case:

“In a suit upon a fire-insurance policy the petition contained, among others, the following 'allegations: The defendant company, on August 22, 1922, issued to the plaintiff a policy covering certain property of hers, and when the policy was delivered the plaintiff paid the defendant company $51.07 in cash and executed and delivered her promissory note for the sum of $113.52 principal, as payment of the balance of the premium due on the policy, the note being divided into two equal installments of $56.76 each, due on September 1, 1923, and September 1, 1924. On March 1, 1924, the property insured was totally destroyed by fire, and at the time of the fire the plaintiff was in default of the installment due September 1, 1923, but the defendant company had retained possession of the note, had declared the entire debt due, had placed the note in the hands of its attorney for collection, was asserting its right to collect the same, and was attempting to collect not only the installment of $56.76 due September 1, 1923, but also the installment due September 1, 1924. Furthermore, no notice of cancellation of the policy was ever given the plaintiff by the defendant company, nor did it ever offer to return the note to her, nor did it make any request of her to return her policy to it prior to the fire. It was alleged that this conduct of the defendant company constituted a waiver of the following provisions, especially of paragraphs (a) and (e) of the policy:

(а) ‘Payment of notes or installments for premium. It is understood and expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon this policy, remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise), given for the whole or any portion of the premium, remains past due and unpaid/

(б) ‘The company may collect, by suit of otherwise, any past-due notes or installments thereof, and a receipt from the said Atlanta office of the company for the payment of past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of the policy.’

{c) ‘In settlement of any loss under this policy, this company may deduct therefrom the entire amount of any unmatured note, given in whole or in part as a consideration of this policy, whether such note is payable in installments or otherwise.’

(d) ‘This policy shall be cancelled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice, it shall retain only the pro rata premium.’

(e) ‘No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.’

The petition did not contain an allegation of any written endorsement or agreement as to waivers being upon or attached to the policy. Under the above-stated facts, did the said conduct of the defendant company constitute a waiver of the provisions of the policy as set forth above in paragraphs (a) and (e) ?”

In answer to the foregoing question the Supreme' Court said: “Under the facts stated in the certified question, the conduct of the defendant company did not constitute a waiver of the provisions of the policy as set forth in paragraphs (a) and (e).” 161 Ga. 559 (131 S. E. 359). Under this ruling the judge who tried the case erred in overruling the general demurrer to the petition.

Judgment reversed.

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


author: Broyles, O. J.

text:
    16245.
    Holland v. The State.
    Decided February 4, 1926.
    Indictment for rape—conviction of fornication; from Appling superior court—Judge Higlismith. December 27, 1924.

      C. E. Parker, V. B. Padgett, for plaintiff in error.

      W. B. Gibbs, solicitor-general, Alvin V. Sellers, contra.
   Broyles, O. J.

Where one is tried on an indictment charging rape and drawn under the act approved July 31, 1918 (Ga. L. 1918, p. 259), a verdict finding the accused guilty of fornication is null and void, and the judgment based thereon should be arrested on motion of the defendant. Holland v. State (this case), 161 Ga. 492 (131 S. E. 503), decided January 13, 1926. The trial court, therefore, erred in overruling the motion to arrest the judgment.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    16172.
    Tennessee Chemical Company v. George.
    Decided February 4, 1926.
    Complaint; from city court of Blakely—Judge Gray. November 27, 1924.

      Lowrey Stone, for plaintiff.

      B. W. Fortson, J. M. Cowart, for defendant.
   Broyles, C. J.

1. “In a suit by the owner and holder of a promissory note against the maker, where the defendant had deposited certain personal property with the plaintiff as collateral security for the note sued on and the plaintiff has converted the property to his own use, the defendant can maintain a cross-action for the difference between the value of the converted property and the balance due by the defendant on the note, where it is not shown that the property has been converted into money.”

2. The above-stated ruling in this case was made by the Supreme Oourt (in answer to a certified question by this court) on January 15, 1926 (161 Ga. 563, 131 S. E. 493), and disposes of the exception to the overruling of the general demurrer to the defendant’s answer.

3. Under the particular facts of the ease, conceding that the court erred in overruling some of the special demurrers to the answer, it appears with reasonable certainty that no injury resulted therefrom to the plaintiff in error; and such errors, therefore, do not require a new trial. Martin & Lanier Paint Co. v. Daniels, 27 Ga. App. 302 (3) (108 S. E. 246).

4. The verdict was authorized by the evidence, and the amendment to the motion for a new trial shows no cause for a reversal of the judgment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16530.
    Cook et al. v. Walker, Governor.
    Decided February 4, 1926.
    Forfeiture of recognizance; from city court of Miller county— Judge Geer. March 30, 1925.
    P. Z. Geer, for plaintiffs in error.

      P. D. Rich, solicitor, contra.
   Luke, J.

1. “Under the provisions of the act creating the city court of Miller county (Acts 1909, p. 276, sec. 3), which provide for the trial of defendants in misdemeanor eases upon written accusations framed and signed by the solicitor of that court, an accusation filed in that court, unsigned by the solicitor thereof, can be amended by that officer attaching his signature thereto.”

2. “During the pendency of such filed but unsigned accusation, a rule nisi, calling upon the principal and his sureties in a recognizance, requiring the appearance of the defendant to answer for a misdemeanor with which he stood charged in said accusation, could be ordered; and where in answer to such rule nisi the sureties set up as a defense to the forfeiture of the bond the lack of the signature of the solicitor to the accusation, the court below did not err in permitting that officer to sign the accusation, and in directing a verdict against the sureties on the bond.”

3. The above-stated rulings in this case were made by the Supreme Court (in answer to certified questions by this court) on January 13, 1926, (161 Ga. 551, 131 S. E. 288), and dispose of the special grounds of the motion for a new trial.

4. The verdict was authorized by the evidence, and the refusal to grant a new trial was not in error.

Judgment affirmed.

Broyles, O. J., and Bloockoorth, J., concur.


text:
    16426, 16427.
    LIPSHITZ v. NEW ZEALAND INSURANCE COMPANY; and vice versa.

    1. Where an insurance company issued to the insured a certificate covering the insurance agreement, in which certificate there was a statement to the effect that the insurance company had insured a certain cargo of the insured “under policy No. 7,” that policy was enforceable as a part of the contract when properly identified.
    2. It was not improper for the court to permit the agent of the defendant company to testify, over objection of the plaintiff, to the identity of “policy No. 7,” produced in response to the plaintiff’s notice to produce, and to testify that the policy so produced was the only “policy No. 7” in the United States; and, in view of the proper admission of that testimony, this court can not say that the improper and irregular admission of the verified response to the notice to produce, in which practically the same statements as above were made, or that the refusal of the court to strike certain portions of that response constituted harmful or reversible error.
    3. Where the original certificate of insurance insures the merchandise while on a named vessel or other steamer from one named port to another, via port or ports including transshipment if incurred, and where a clause in the insurance policy, referred to in the certificate, restricts tlie liability of the insurer to damages done to the cargo by “perils of the sea,” resulting from “actual contact of sea water with the articles damaged,” and evidence is wholly lacking as to how the damage was occasioned, except that it appears, from undisputed evidence, that the cargo was wet and damaged by fresh water, there is no error in directing a verdict for the defendant.
    4. Assuming that by the terms of the certificate of insurance the protection embraced “perils of the sea” encountered while at ports of transshipment, the evidence nevertheless fails to indicate that the damage, wherever done, was occasioned by “perils of the sea;” furthermore, even assuming that sea water could, under the contract, be held to mean any water in which the vessel floated, the evidence wholly fails to show that the water occasioning the damage was of that character.
    Decided February 13, 1926.
    Complaint; from Fulton .superior court—Judge Bell. December 11, 1924.
    Application for certiorari was made to the Supreme Court.
    B. S. Lipshitz sued The New Zealand Insurance Company Limited upon an insurance contract, because of damage to a cargo of rags shipped by the plaintiff from Riga in Latvia to the port of Philadelphia. The plaintiff incorporated in his petition a copy of the insurance certificate, designated as “Ocean Cargo Certificate,” which provided in part as follows: “This is to certify that on the 21st day of November, 1921, we, the undersigned, insured under policy No. 7, for B. S. Lipshitz, the sum of four thousand dollars on bales of carbonized woolen rags, valued at sum insured on board S. S. Hebron’ and/or other steamer or steamers and connections at and from Riga, Latvia, to Philadelphia via port or ports including transshipment if incurred. Loss, if any, payable upon surrender of this certificate, to the order of assured or order.” Another provision of the certificate was the following: “It is understood and agreed that this certificate represents and takes the place of the policy, and conveys all the rights of the original policyholder (for the purpose of collecting any loss or claim), as fully as if the property were covered by a special policy direct to the holder of this certificate, and free from any liability for unpaid premiums.” The plaintiff filed an amendment setting up that the said cargo consisted of eight hundred bales of woolen rags; that the damage was suffered between the time of its delivery to steamship Hebron, at Riga, about November 15, 1921, and the date of its delivery in Philadelphia, about December 27, 1921; that “said cargo was damaged by wetting with water, which wetting caused the cargo to depreciate in value, by causing the rags to have an irremovable bad smell, rendering it less suitable,” etc.; that “said cargo certificate is a contract of marine insurance between petitioner and defendant, insuring petitioner against perils of the sea, and was so intended and understood by petitioner and defendant.” By amendment, the percentage of the damage was alleged, and it was alleged that carbonized woolen rags were of greater market value than rags not carbonized; that the plaintiff claimed the right to have this error corrected in the description under the terms of said certificate, and that the failure to pay the loss was malicious and wilful, so as to permit plaintiff to recover attorney’s fees, etc. Another amendment, admitting a credit to the defendant of the amount of the premium, was filed. Demurrers to the petition and to the amendments were overruled. The defendant filed exceptions pendente lite to the overruling of the demurrers, and by a cross-bill of exceptions assigns error thereon. In its answer to the suit the defendant denied all liability to the plaintiff, and set up that policy No. 7, referred to in the certificate, was a part of the insurance contract, and that under the terms of the insurance contract the loss sustained was not occasioned by perils of the sea, and that the character of the loss was a specific exception from liability. At the trial the court, on the conclusion of the testimony, directed a verdict for the defendant, saying: “In the opinion of the court, construing both of these papers, the certificate sued on, together with the policy introduced and the application for the policy, the plaintiff has failed to make out his case. . . The damage claimed in the plaintiff’s suit is not covered by the contract, the evidence showing that the damage was not done by contact with sea water occasioned by sea perils.” The plaintiff filed a bill of exceptions alleging that the court erred in directing the verdict.

      Henry A. Alexander, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) The brief for the plaintiff in error says: “The bill of exceptions complains of the following four rulings: (1) That so-called 'policy No. 7’ was a part,of the contract. (2) In refusing to reject the evidence of Jones in reference to 'policy No. 7/ set out on page 2 of the bill of exceptions. (3) The refusal of the court to reject three paragraphs of the response to the notice to produce, -set out on page 4 of the bill of exceptions. The so-called 'policy No. 7’ was included in this motion to reject which was overruled. (4) The order of the court directing a verdict in favor of the defendant.” This statement of counsel condenses the issues before this court so that the case will be disposed of by a consideration of the propositions thus set forth. It is urged by the plaintiff that “policy No. 7” did not constitute a part of the insurance contract; that the certificate set forth in the statement of facts was a complete contract of insurance, which protected the plaintiff from “perils of the sea” to his shipment of rags. Was “policy No. 7” a part of the insurance contract ? It is directly referred to and in terms adopted as a part of the contract, by the certificate upon which plaintiff’s action is founded. The only obligation assumed is that “We, the undersigned, insured under policy No. 7 for B. S. Lipshitz,” etc. In the case of Queens Ins. Co. v. Hartwell Ice &c. Co., 7 Ga. App. 787 (68 S. E. 310), a binder was issued to the insured, but not actually delivered to him, but inserted at a certain page of the book containing the forms of the regular policies of the companies involved, accustomed to be used by the agent when insuring for that company. The court held: “The property described in the memorandum or 'binder’ was insured during the term specified therein upon the terms and conditions of the regular standard policy of the company, and a breach of any of these terms and conditions that would render void the regular policy would also make void the temporary contract, and any waiver of such breaches would apply to the latter.” It will thus be seen that this court has held in a case of fire insurance that “the terms and conditions of the regular standard policy of the company” are written into the “binder” even though there be no express reference to or adoption of such standard policy. In the case of Underwriters’ Agency v. Sutherlin, 46 Ga. 652, Sutherlin sued the company by attachment, basing his right of recovery upon a certificate reciting that “This is to certify that William T. Sutherlin is insured for account of whom it may concern, under and subject to the conditions of policy No. 780, issued by the above-named companies, in the sum of $4000,” etc. The defendant company offered in evidence the policy referred to in the said certificate, which was excluded on the plaintiff’s motion. Verdict and judgment were for the plaintiff. In reversing the judgment of the court below the Supreme Court said: “We think the court erred in ruling out the policy, or, rather, we are of opinion that the policy was a necessary part of the plaintiff’s case. The certificate is not, of itself, a complete contract by the company. It expressly provides that the terms and conditions of the contract are to be regulated by policy No.-. On its very face the paper produced shows that it does not contain the whole contract. How can any one say what the contract was from the certificate alone? What is the risk taken? It does not say. What are the terms and conditions? It does not say. It stipulates, expressly, that the terms and conditions are set forth in another paper. True, that other paper is in the custody of the defendant; but that was well known to the parties. It was the usual mode of business for the agent to retain this paper. But its contents were well known to Rust, who was the mutual agent of both parties, as the evidence shows. In any event, the paper certificate declares and notifies all concerned that it is not the whole contract. It was in the power of the plaintiff to compel the production of the policy, and as it was a necessary part of the plaintiff’s case, she should have taken the legal steps required for that purpose. As it was produced by. the defendant, without notice, the plaintiff’s case, in this respect, was complete. But when, on his motion, it was ruled out, his ease was fatally defective, since it appeared, affirmatively, to the court that the full contract of the parties was not before the jury.” The headnote in that case is as follows:: “Where an insurance was effected under an open policy of insurance, issued to the company’s agent, the insured taking a certificate that his insurance was according to the terms specified in said open policy, which was retained by the agent: Held, that in a suit for a loss, it was not sufficient for the plaintiff to produce the certificate alone, since on its face it appeared that it did not contain the whole agreement.”

Moreover, it appears from information derived from standard text-writers upon the subject of marine insurance that there has grown up within latter years a well-known practice among such companies to issue what are known as “certificates,” quasi-negotiable instruments, covering cargo insurance under open or other policies referred to therein. The course of business in this respect is described by Winter in his book on Marine Insurance, as follows: (p. 106) “Insurance certificates are issued for the purpose of transferring insurance and are quasi negotiable. The insurance being transferred by endorsement, the holder of the certificate receives all the rights of the original assured, but also assumes all liabilities that may be attached to the insurance, as for example liability for unpaid premiums. Even this liability is waived in many cases by underwriters who stipulate in the certificate,' that with respect to a third party holder of the certificate all liability for unpaid premium is waived.” This author says further (p. 121) : “In the last twenty-five years the insurance certificate has largely supplanted the policy in connection with the negotiation of documents relating to cargo shipments. The use of this certificate has already been explained, but its consideration at this point is pertinent, since its purpose of primarily to transfer to the holder the benefit of the insurance which, in the event of loss, is the right to. claim the indemnity which the insurance provides. As most merchants have open policies covering all shipments which are at their risk, the insurance certificate provides a simple and convenient method of evidencing the insurance and of making possible the payment of loss to a bona-fide holder of the commercial documents. These certificates, when negotiable, provide that' loss shall be payable to a designated person or order, these last two words enabling the payee by simply signing his name across the back of the certificate to transfer the payment of loss.”

While we think that the decision in Underwriters’ Agency v. Sutherlin, supra, settles the principles involved in this matter, attention will be called to some other authorities which have passed upon this matter. The case of Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143 (62 N. E. 167), seems to be in point. The certificate in that case provided as follows: “This is to certify that the Imperial Shale Brick Company [is] insured under and subject to the conditions of open policy No. 4007, issued by the Buffalo Fire and Marine Underwriters . . in the sum of $2000, on paving brick. . . Loss, if any, payable to order of assured thereon and return of this certificate. Yalid when countersigned by the authorized agent of this company at Buffalo, N. Y.” In the opinion of the court in that case it was said: “The open policy No. 4007, referred to in the certificate, was then [at the time of issuance of the certificate] in the defendant’s office in the city of Buffalo, 180 miles from Cleveland. It had not been seen by the plaintiff, and its contents were unknown to it. . . The course of defendant’s business was never to deliver a policy to the assured, but only such a certificate referring to such an open policy in the custody of some one of their agents. Thus the certificate delivered in Cleveland could refer to an open policy in Buffalo, and a certificate delivered in Buffalo to another open policy, however distant it might be from the assured. . . With the certificate delivered and the open policy thus withheld, the plaintiff was led by the defendants to understand that he was dealing with a known corporation or company of the name and residence mentioned in the certificate, instead of with nineteen persons whose names, residences, and solvency were unknown. . . We must read the certificate and open policy together in the light of the rule, particularly applicable to insurance policies, that of two admissible constructions the one against the insurers should be preferred. . . It had notice by the reference in the certificate to look to the open policy for the terms and conditions of the insurance it bought, but not a notice substituting nineteen individual several underwriters for the company. . . The reference to the open policy is to ascertain the quality of the insurance which the company named in the certificate sold as a single underwriter, or as joint underwriters to the plaintiff, that is to say, the plaintiff’s cargo is insured against the perils in the open policy expressed, and under the terms and conditions therein expressed, to be observed by the plaintiff. . . Construing the words ‘under and subject to the conditions of open policy No. 4007 issued by the Buffalo Fire and Marine Underwriters’ . . favorably to the plaintiff, the words do not say or means under the open policy, but under its terms and conditions.'” In Conner v. Manchester Assur. Co., 130 Fed. 743 (65 C. C. A. 127, 70 L. R. A. 106), the Court of Appeals held that the assured were bound by the terms and conditions of an open policy in the underwriter’s possession which they had never seen. In that case the court said: “The plaintiffs in error [the assured] . . advert to the fact that they paid for and accepted the certificate of insurance, which declared in general terms that they were insured against loss by fire, but elsewhere referred to another instrument, presumably a blank form, constituting certain limitations of the risk assumed, which policy they never saw and the terms of which they never knew. To that contention the law makes this answer: The plaintiff in error accepted an instrument which contained a reference to another instrument in which were embodied the limitations, and which were made a part of the contract. They were presumed to know the contents of the paper which they received, and if they had read it they would have observed that it referred to and adopted the provisions of the other instrument. They had the right to demand an inspection of that instrument, and, if inspection had been refused, to decline to enter into the contract.”

The plaintiff in error in the instant case makes the contention that “The so-called policy No. 7 is not a policy, but at most only a blank form of policy; it is incomplete as a policy upon its face and void through lack of counter-signature which is required by its own terms; and it is too vague and uncertain to create any contractual obligations.” We think that this contention is disposed of by the following statement from Imperial Shale Brick Co. v. Jewett, supra. “The reference to the open policy is to ascertain the quality of the insurance which the company named in the certificate sold, . . that is to say, the plaintiff’s cargo is insured against the perils in the open policy expressed, and under the terms and conditions therein expressed, to be observed by the plaintiff.”

Having held that policy No. 7 is a part of the insurance contract and must be given effect under the contract, it remains to inquire into the additional terms and conditions which were imported into the contract by the provisions of “policy No. 7.” In this policy was the following provision: ccWarranted by the assured free from damage of injury from dampness, change of flavor or decay, or from being spotted, discolored, musty, or mouldy, unless caused by actual contact of sea water with the articles damaged occasioned by sea perils.” The trial judge, in directing the verdict for the defendant, used the language set forth in the statement of facts. We are in entire accord with this statement of the trial judge. There was no evidence going to show how the alleged injury was occasioned. One witness surmised that the damage to the goods might have been occasioned while they were at the inland port of Hamburg. There is, however, no evidence going to indicate that the cargo was injured by “perils of the sea” while in port for the purpose of transshipment or while on the high seas. There was no evidence that it was injured “by actual contact of sea water with the articles damaged.” On the contrary, it is admitted by the plaintiff that the damage was occasioned by fresh water. The term “perils of the sea” and “perils of navigation” are not synonymous. In 38 Corpus Juris, 1098, § 268, “perils of the sea” are defined as follows: “Perils of the sea embrace all kinds of marine casualties, such as shipwreck, foundering, stranding, collision, and every specie of damage done to ship or goods at sea by the violent action of the winds or waves. They do not embrace all losses happening on the seas. . . The rule has been laid down that a policy insuring against ‘perils of the sea’ covers only extraordinary risks.” This same work clearly distinguishes the difference in meaning between the terms “perils of the sea” and “ perils of navigation.” 38 Corpus Juris, 1101, § 272. In the ease of Reilly v. Home Ins. Co., 81 App. Div. 314 (81 N. Y. Supp. 59), it was held: “The burden of proof was upon the plaintiffs to show, by a fair preponderance of evidence, that the disaster arose from some of the perils insured against, and that it did not occur by reason of any inherent defects and other unseaworthiness as among the excepted risks. 2 Parsons on Marine Insurance, 518, says: “The insured must prove an extraordinary peril of the kind insured against, and a loss by that peril. It is a very frequent subject of inquiry whether the damage which is unquestionable as a fact was caused by a peril insured against or by some other cause. The burden of proof is of course on the insured, first to prove the damage, and then to show that it arose from such a peril.” in Starbuck v. Phenix Ins. Co., 119 N. Y. App. Div. 139 (45 N. Y. Supp. 995), it was said: “Without deeming it necessary to discuss all the different cases presented upon the former appeal and on this, we may adopt the view that ‘damage done to a vessel by perils of the sea includes every specie of damage done to the vessel at sea by the violent and immediate action of the winds or waves, or both, as distinct from the ordinary wear and tear of the voyage, and as distinct from injuries suffered by the vessel in consequence of her not being seaworthy at the outset of her voyage, or afterwards, under circumstances in which the master was guilty of negligence in not making her seaworthy.’ ” In Allison v. Corn Exchange Ins. Co., 57 N. Y. 87, it was said: “In a marine policy against ‘the perils of the sea’ the underwriter assumes only extraordinary risks, and if a vessel goes down by the ordinary action of the wind and waves, the insurer is not responsible, for the vessel is assumed to have been seaworthy.” In 1 Phillips on Insurance, § 1086, it is said: “Whatever risks are assumed by the underwriter, his liability is subject to two limitations; he is not liable for the consequences of the perils assumed except when they operate in an extraordinary degree, and he is liable only for damage and loss of an extraordinary kind.” In Barnwell v. Church, 1 Caines (N. Y.), 217, 234 (2 Am. Dec. 180), it was said: “The insurer undertakes only to indemnify against the extraordinary and unforeseen perils of the sea, not against the ordinary perils to which every ship must be exposed in the usual course of the voyage.”

Plaintiff in error relies upon the case of Underwriters’ Agency v. Sutherlin, 55 Ga. 266. In that case it was held: “In a marine risk when navigation is partly by fresh water and partly by salt water and involves transshipment, proof of damage by water of any kind is, prima facie, proof of damage by the perils of navigation [italics ours], even if the wetting is caused by rains, and whether the rains fell on board, or on the usual transshipping wharf whilst the goods were upon the same in the ordinary course of transit.” But it will be noted from a consideration of the terms of the policy there involved that quite a different question from that here involved was presented. In that case the perils undertaken were those of “navigation,” and not “perils of the sea.” The former term, as has been said, is much broader than the latter. Furthermore, the policy involved in that case covered injury from actual contact with “water,” and not actual contact of “sea water with the articles damaged, occasioned by sea perils,” as in the instant case. See also Brazilian Export and Import Co. v. Firemans Fund Ins. Co., 106 Misc. Rep. (N. Y.) 139 (174 N. Y. Supp. 265). Thus, if it had been proved, as is only surmised, that the damage was in fact occasioned by contact with river water while the goods were in process of transshipment at an inland port, and even though it be conceded that the protection afforded by the contract against “perils of the sea” was not suspended while the goods were in an inland port, for the purpose of transshipment, it still would not follow that such damage had been shown to have been occasioned by what could be properly termed a “peril of the sea.” Finally, even if it could be assumed that such an injury, when thus occasioned at such a port, could ordinarily be accounted to have been occasioned by a “peril of the sea,” still, under the special and specific terms of the instant contract, the liability could not be extended to cover damage occasioned by contact with any water except sea water; and even though sea water, under the terms of the contract, be held to mean any water in which the vessel floated, there was no evidence whatever that the damage was caused by contact with such water.

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

Stephens and Bell, JJ., concur.