text:
    15240.
    HOTEL EQUIPMENT COMPANY v. LIDDELL.
    1. Where an employee and an employer had both accepted the provisions of the workmen’s compensation act (Ga. L. 1920, p. 167), the employee did not thereby lose his right of action against a third person as a wrongdoer causing his injury.

      (а) Even assuming that the compensation paid under the act is in the nature of damages awarded for injury, an employee’s acceptance of a certain sum thereunder for an injury would not altogether prevent his proceeding against such wrongdoer, unless the same was a full satisfaction for the injury under the general law as it existed prior to the act. The compensation act was not intended to give that measure of recompense.
    (б) But the compensation provided thereunder is similar in character to benefits under an insurance policy, and its receipt by an injured employee can afford no ground upon which a third person who wrongfully inflicted the injury should escape liability, either wholly or in part.
    (c) In such an action a plea in bar, upon the ground that the employee had received compensation from his employer under the compensation act, even if, in any view, otherwise sufficient, would be bad, in the absence of an averment that the injury arose out of and in the course of the employment.
    (d) The above rulings are under the act as it existed prior to the amendment of 1922 (Ga. L. 1922, p. 185).
    2. Where the owner of a truck and another jointly employ a chauffeur to operate the truck in the business of either, each contributing equally to the maintenance of the truck and the wages of the chauffeur, and where they both have equal rights to the use of the truck and the chauffeur is subject equally to the control of each, both or either may be held liable for an injury negligently inflicted by him upon another in the operation of the truck in the prosecution and within the business of either which was in contemplation of the three- parties at the time of his employment.
    3. The extract from the charge set forth in the third division of the opinion was not error as an unfair statement of the contentions of the parties.

      (а) Other charges examined and held not prejudicial, though inapplicable. An irrelevant charge is not cause for a new trial unless it appears that the losing party was prejudiced thereby.
    (б) It is not reversible error that the court directed the jury to consider the relationship of witnesses to the parties, instead of instructing them that they might do so.

      (c) The jury were sufficiently instructed upon the law of negligence. It was not error to omit a definition of that term, in the absence of a proper request.
    4. The evidence autnorized a finding in favor of the plaintiff for some amount, and considering the verdict as one only for the injury and the incident pain and suffering, both past and future, and for expense incurred, it cannot be held, as a matter of law, that the amount awarded was so great as to show bias, prejudice, or mistake on the part of the jury.
    Decided August 13, 1924.
    Damages; from Fulton superior court — Judge Ellis. November 20, 1923.

      Bryan & Middlebroohs, for plaintiff in error.

      Hewlett & Dennis, contra.
   Bell, J.

On January 18, 1922, Thomas E. Liddell brought suit against Hotel Equipment Company, a corporation, for injuries sustained by him on September 17, 1921, when he was struck by an automobile alleged to have been owned by the defendant and to have been negligently operated by its employee in and about the defendant’s business. The petition alleged that the plaintiff’s injuries consisted mainly of the breaking of his left leg, but were generally to his entire body; that he had suffered great pain and that his injuries would be permanent, and that he had been put to certain expense for surgical treatment, hospital bills, and the like. He laid his entire damages at $25,000.

The defendant denied all the allegations of the petition except that it was a corporation, etc. The trial resulted in a verdict in favor of the plaintiff for $9,000. The defendant’s motion for a new trial, containing the usual general grounds and a number of special grounds, was overruled, and the movant excepted. Exceptions are taken also to a judgment sustaining plaintiff’s demurrer to a special plea in bar, to be referred to in the opinion.

The defendant specially pleaded in bar that the plaintiff at the time of the injury was an employee of the Standard Oil Company, and that both he and his employer had accepted the terms of the Georgia workmen’s compensation act; that on account of his injury and before he filed suit against the defendant therefor the plaintiff claimed and received compensation from his employer in the sum of $637 in full settlement of his claim for compensation due him under the compensation act. By reason of these facts it was alleged that the plaintiff had no right to maintain an action against the defendant for the same injury. The plea was stricken on a general demurrer, but it was provided that the order was not intended to prevent the defendant from showing that the plaintiff was paid compensation by his employer under the compensation act.

Did the court err in striking the plea? Numerous cases have been cited by both parties. We have examined each of them most carefully, but will not undertake to review them in this opinion. Suffice it to say that in practically every one of the decisions cited by the plaintiff in error in which it was held that an employee, who had elected to claim compensation of his master under a compensation act, could not thereafter bring suit against a third person causing the injury, there were provisions in the statute under construction which do not appear in the workmen’s compensation act of this State. There are decisions sustaining the right of the employee to sue the third person under such circumstances, where the act in the particular State, as is true in this State, did not expressly deny such right. There is one apparent exception to what we have stated with respect to the cases cited by the plaintiff in error, namely, a decision by the Supreme Court of Appeals of Virginia, to which we will refer a little later.

Section 13 of the compensation act of this State (Ga. L. 1930, p. 167) is as follows: “That the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death.” Prior to the amendment of August 16, 1933 (Ga. L., 1933, p. 185), there was no provision in the act for the subrogation of the employer, who had paid compensation for an injury, to the right of the employee against a third person who may have been liable. Such a provision was made by that amendment. Another provision of the amendment is that the employee or beneficiary may take proceedings for damages against the third person responsible for the injury and also against the employer for compensation, but that the amount of compensation to be had of his employer shall be reduced by the amount of damages recovered.

The cause of action in this case arose prior to the amendment. It is urged by the plaintiff in error, however, that the provision in the amendment for an action against a person other than the employer who brought about the injury should be taken as proof that no such right existed under the original act. “An expression of the views of the legislature [in one act or resolution] as to what they thought they had done [in a previous act] . . is a legitimate source to look to in determining the intention of the legislature in passing the [previous] act.” Georgia Penitentiary Co. v. Nelms, 65 Ga. 68 (1), 69. There seem to us, however, to be weightier reasons for holding that the original act of 1920 was never intended to prevent an employee who had received compensation of his employer under the ant from bringing suit against another person who would have been liable to him for his injury independently of the act. The original compensation act of this State is very similar in most of its terms to that of the State of Virginia. Section 12 of our act is identical with section 12 of the Virginia act. In Southern Railway Co. v. United States Casualty Co., 136 Va. 475 (118 S. E. 266), — the Virginia ease mentioned above, — it was said that “under section 12 . . the employee to whom compensation was paid for personal injuries was debarred from pursuing all other rights and remedies on account of such injuries.” The implication was that he could not sue a third person. The damage involved in that case, however, arose after the passage of an amendment whereby the employer was subrogated to the right of the employee, and might enforce the same in his own name in a suit against the person causing the injury. Section 12 was, of course, construed in the light of the amendment already passed. In other words, the amendment was of a character to modify the effect of this section as it existed before. We cannot, therefore, accept this decision as authority upon the question now before us.

In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (2), 689 (118 S. E. 786), we said that “the compensation acts, though in derogation of the common law, being highly remedial in character, should be liberally and broadly construed to effect their beneficent purposes.” But this language had reference to the application of the remedy as between the master and the servant, • and not to the scope of the act with respect to others. With regard to that, the general rule would be applicable, that statutes in derogation of common law and in contravention of the public policy of the State should be strictly construed. Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359 (2) (78 S. E. 1078); Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200 (2), 202 (59 S. E. 725). Repeals by implication are not favored. Franklin County v. Crow, 128 Ga. 458 (57 S. E. 784). To rule that the plaintiff is estopped to bring this action, merely because he as to his employer was subject to its provisions and was compensated thereunder, would be to say that the act of 1930 repealed the existing laws by which the defendant would have been liable for negligence, in so far as they related to persons receiving compensation under the act. In Southern Ry. Co. v. Moore, 133 Ga. 806 (1), 809 (67 S. E. 85, 26 L. R. A. (N. S.) 851), the Supreme Court approved the following principle: “A statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication; the new remedy is cumulative, and either may be pursued.” In that case the Supreme Court doubts the soundness of the decision of this court in Pennington v. Douglas &c. Ry. Co., 3 Ga. App. 665 (3) (60 S. E. 485), cited and stressed by the plaintiff in error.

Section 13 does not by express language take away the right of an employee to sue the wrongdoer. Its terms can only mean that he and his employer are subject to the act and that he shall have no other remedy against his employer. Third persons are not concerned. An outsider' does not share the burdens of the act, imposed upon the employer, and he is entitled to none of its benefits. It was never the purpose of this statute to place exclusive liability upon the master for injuries to his employees arising out of and in the course of the employment, and thus to grant immunity and license to others who were responsible for the injuries.

From what has been said, — all of which assumes that compensation paid under the act is in the nature of damages awarded for injury, an assumption under which we will for the present continue, — the question resolves itself merely into one of election of remedies. This perhaps is the real question which the plaintiff in error would raise. “A plaintiff may pursue any number of consistent concurrent remedies against different persons until he.obtains a satisfaction from some of them.” Civil Code (1910), §' 5522. No matter what right the party wronged may have of selecting between remedies, or of pursuing defendants for the same cause of action, when he once obtains full satisfaction from one source his cause of action ends, and he cannot assert it any further anywhere. McLendon v. Finch, 2 Ga. App. 421 (3) (58 S. E. 690), and citations. In our view, the compensation laws were never intended necessarily to give full compensation for the injury done, as under the provisions of the Civil Code, § 4502, but attempt only a “partial recompense.” Appeal of Hotel Bond Co., 89 Conn. 143 (93 Atl. 248). The defendant, if negligent, was liable under this section. Its liability was in no way affected by the compensation act, even under the theory now discussed, except to the extent of the satisfaction which the plaintiff received thereunder. If he had received from his employer the full measure of damages which he would have been entitled to recover of the defendant under this code section, that fact, under the assumption stated above, could have been pleaded by the defendant as a bar. The defendant did not allege that the plaintiff had received from his employer satisfaction for the injury to the extent that he himself would have been liable, but averred merely that he had received full and final settlement of the amount allowable to him under the compensation act.

But, departing now from the assumption that compensation under the workmen’s compensation law is in the nature of damages awarded for injury, we are of the opinion that it is in truth like the benefits under an insurance policy. City of Austin v. Johnson (Texas Civ. App.), 104 S. W. 1181; Ohio Traction Co. v. Washington, 6 Ohio App. 273; 1 Honnold on Workmen’s Compensation, 5, § 2; 1 Schneider’s Workmen’s Compensation, 1, § 1, and citations. Being of the nature indicated, its receipt by an injured employee can afford no ground upon which a third person who negligently inflicted the injury should escape liability, either wholly or in part. Western & Atlantic Railroad v. Meigs, 74 Ga. 857 (5); Nashville &c. Ry. Co. v. Miller, 120 Ga. 453 (3) (47 S. E. 959, 67 L. R. A. 87, 1 Ann. Cas. 210); City of Rome v. Rhodes, 134 Ga. 650 (68 S. E. 330).

We would willingly Test our decision here; but for still a further reason we are of the opinion that the plea was bad. It nowhere alleges that the plaintiff’s injuries arose out of and in the course of his employment. Madden v. Northern Pacific Ry. Co., 242 Fed. 981. The plaintiff would not be estopped in this action against the defendant to deny that his injury did so arise, merely because he may have received compensation from his employer under the provisions of the act, and unless the injury did so arise, what he received was only a gratuity, the acceptance of which could not in any view constitute a defense to the present action. Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (2) (83 S. E. 445); Nashville &c. Ry. Co. v. Miller, supra. No transaction between him and his employer could operate so as to estop him from asserting the truth as between him and the defendant, who was not a party to the transaction and could not have been misled or affected thereby. Civil Code (1910), § 5738. We conclude that the court did mot err in striking the plea.

Special ground 4 of the motion for a new trial is as follows: “The court erred, as movant contends, in charging the' jury as follows: c If you find that the truck was the property of the defendant, or that the defendant had a joint ownership of it, and that the driver of it was the employee of the defendant, and that the driver of this automobile was negligent in his operation with the machine, and that this operation of this truck brought about this injury to the plaintiff, then you would find for the plaintiff, unless you believe that the plaintiff himself, by his acts and doings, brought on himself this trouble; or, that he was not in the exercise of ordinary care to avoid the negligence of the defendant after it existed, — that is, as soon as he knew of it, — or, in the exercise of ordinary care after he found that the defendant was negligent, if he was negligent, or in the exercise of ordinary care could have known of it and have avoided the consequences of defendant’s negligence, if any existed.’ Movant insists that such instruction was error, for the reason that it was misleading and did not correctly state the law applicable to this case, since it did not instruct the jury that the defendant would not be liable unless the truck was being operated at the time the plaintiff was injured by the defendant’s employee or agent, on an errand for the defendant or within the scope of the [employee’s] agency. Movant insisted throughout the trial of the case, and, as movant contends, the evidence showed, that the truck in question was owned by the defendant; that its upkeep, including the wages paid to the driver of the truck, was paid by Luckie Manufacturing Company, a separate and distinct corporation, with a place of business several blocks away from defendant’s place of business and the defendant; that on one side Of the truck were painted the words, ‘ Hotel Equipment Company,’ and on the other side of the truck were painted the words, ‘Luckie Manufacturing Company;’ that the defendant’s business did not require the full use of the truck every day; that the truck was used some days and some times by Luckie Manufacturing Company and some days and some times by the defendant ; that on the day and at the time the .plaintiff was injured, the driver of .the truck was using the truck at the direction of some officer of Luckie Manufacturing Company for the purpose of delivering furniture to Sterchi Furniture Company, a customer of Luckie Manufacturing Company; that at the time and on the day the plaintiff was injured the truck was not being used on any errand nor upon any business nor at the direction of Hotel Equipment Company, the defendant. Movant insists, therefore, that the instructions of the court, as set out in this ground of its motion for- new trial, are prejudicial and harmful, and erroneous, inasmuch as the jury was instructed to find against the defendant if they believed that the truck was owned by the defendant and was being driven by an employee of the defendant. Movant insists that, inasmuch as the undisputed evidence in the case showed that the driver of the truck was employed jointly by the defendant and by Luckie'Manufacturing Company, another corporation, and, inasmuch as the undisputed evidence, as movant contends, did show that the truck was not being operated by the defendant at the time the plaintiff was injured and was not being operated on any business or errand for the defendant, that this charge was extremely harmful to the defendant, in that it did not correctly state the law applicable to the defendant’s contentions, raised by the pleadings and the evidence, and in that it misled the jury.”

We state this ground in full as typical of a number of others, as to which our ruling in this connection will be controlling.

We will also set forth the entire testimony of Mr. Griffith, the vice-president of the defendant company, in the light of which our ruling will be made:

“My name is S. J. Griffith and I am vice-president of the Hotel Equipment Company. My business on or about September .17, 1921, was vice-president of the Hotel Equipment Company and vice-president of the Luckie Furniture Company and general manager of both. The Luckie Manufacturing Company manufactures furniture, and it was a corporation. I know a negro named John Williams, whom I knew for several years and he was a truck-driver for the Hotel Equipment Company and the Luckie Manufacturing Company in 1921 and part of 1920. I do not know where John Williams is now, but the early part of this year he came by our office, and I have made every effort to locate him. I do not know where he is now. In September, 1921, the Hotel Equipment Company and the Luckie Manufacturing Company had a White truck. The truck was owned by the Hotel Equipment Company and it was used for the business of the Luckie Manufacturing Company, too, and also by and for the use of Hotel Equipment Company. John Williams, whom I spoke of, worked for both; his salary was prorated by the two companies. The expenses of the truck was prorated by both companies. On or about September 17, 1921, I do know about what business this truck was engaged in. I did have supervision of this truck as general manager of the two companies and the instructions to the foreman of this truck was issued by me and to the shipping clerks of the two companies. I recollect the truck being involved in an automobile accident along about September 17, 1921, at Broad and Marietta streets, but I didn’t see that, as it was just reported to me by an officer. About that time the truck was delivering furniture to the Sterchi Furniture Manufacturing Company for the Luckie Manufacturing Company. That truck was the only White truck we had down there operated by those two companies. On one side there is a sign painted Luckie Furniture Manufacturing Company and on the opposite side the Hotel Equipment Company, and we still have that truck and I have seen the signs on it lately, as they are the same thing. . . (Cross-examination.) I had but one license number for that truck, and that was in the name of the Hotel Equipment Company, which was taken out by Mr. Turner. On this occasion the kind of packages in that truck was case goods consisting of chiffoniers and dressing tables and they were going to the Sterchi Furniture Company. There might have been other parcels, furniture. I don’t know as to the exact things, however, I didn’t count them. They were going to the Sterchi Furniture Manufacturing Company. All of them were going to the Sterchi Furniture Manufacturing Company. Mr. J. C. Ware was the president of the Hotel Equipment Company and he was also president of the Luckie Furniture Manufacturing Company. My recollection is, the treasurer of it was Mr. G. C. McWhorter, that is of the Hotel Equipment Company, and Mr. Thomas M. Turner was the secretary of the Luckie Furniture Manufacturing Company and was not the secretary-treasurer of that company, but the secretary. At the time of this accident Thomas M. Turner was vice-president, and myself as second vice-president. I was vice-president of the Luckie Furniture Manufacturing Company. I could not recollect all of the board of directors of the Hotel Equipment Company without refreshing my memory. Mr. Wells was one, Mr. Turner was one, I was one. I am not positive about Mr. McWhorter being one. Now the Luckie Furniture Manufacturing Company, Mr. Wells was one, I was one, and Mr. Turner was one. Subsequent to the accident I did not have occasion to go down to the police station, as the officer brought the negro by my office. I did not have occasion to go down to police headquarters after the negro was locked up, and I cannot say who went with Mr. Middlebrooks down there. I could not recollect all of those constituting the board of directors of the Hotel Equipment Company, without refreshing my memory, but Mr. Wells was one, I was one, Mr. Turner was one. I don’t know who talked with the officers in the case. I did not at any time go down to the police station, and I did not secure the release of the negro, and I don’t know anything about that.”

The truck and the driver were both identified, without dispute, as being the truck and driver referred to in the testimony of Mr. Griffith. There was' no other evidence touching the relation of the driver, under his employment, either to the Hotel Equipment Company or the Luckie Manufacturing Company. The accident happened at the intersection of Broad and Marietta streets in the city of Atlanta. The driver, John Williams, was at the time operating the vehicle, and had some articles in it, apparently for delivery either for the defendant Hotel Equipment Company or the Luckie Manufacturing Company.

We think that the evidence indisputably shows that the driver was at the time in the prosecution and within the scope of the business of one or the oilier of these companies, they being his joint employers. “Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the manner such machines are usually operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes is in his possession. Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment.” Fielder v. Davison, 139 Ga. 509 (6), 515 (77 S. E. 618).

But it is insisted that the evidence fails to show that John Williams, the driver of the truck, was acting within the scope of his employment about the business of the defendant Hotel Equipment Company. It is even urged that the evidence demanded a finding that he was upon a mission for his other employer. We cannot assent to either of these propositions. He was jointly employed by loth to do the work of either. It follows that when he was doing the work of either he was doing the thing for which both and each had employed him. We find no basis in the testimony for the supposition that he was in the employment of one to the exclusion of the other for any particular time. The parties employed him jointly for all his time, and under that employment he was subject to the commands of both or either. The two companies were associated; their officers were practically the same. Mr. Griffith, an officer of the defendant, was also an officer of the Luckie Company, and had control of the truck and the driver for both companies. The automobile was owned by the defendant company and jointly maintained by both. If one of these companies had employed the man for a distinct portion of his time and another for the remainder, an entirely different question would be presented.

In Moore v. Southern Railway Co., 165 N. C. 439 (2) (81 S. E. 603, 51 L. R. A. (N. S.) 866), the Supreme Court of North Carolina ruled: “That the joint agent of two railroad companies at a particular station was performing a service for one of them when he inflicted an injury upon a bystander does not relieve the other from liability for his acts.” In the Tennessee case of Goodman v. Wilson, 129 Tenn. 464 (166 S. W. 752, 51 L. R. A. (N. S.) 1116), it was held: “Where a brother and sister jointly own an automobile, each. paying one-half of all expenses, including the wages of the chauffeur jointly employed, and with an equal right to the use of the machine, with the exception that the brother had a preference in being taken to and from work, the sister is liable for injuries sustained in a collision with a buggy while the chauffeur, alone in the machine, was racing with another machine on his way to take the brother home from work.” See also Terry v. Burford, 131 Tenn. 451, 463 (175 S. W. 538, L. R. A. 1915F, 714); Griffin v. Russell, 144 Ga. 275 (87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994); 1 LaBatt’s Master & Servant, 51, § 15-

Our ruling is that, under the testimony of Mr. Griffith and the other facts referred to above, it appears, as a matter of law, that the employee in question was acting within the scope of his employment by the defendant when driving the truck at the command of either company, in connection with the ordinary business carried on by either, within the contemplation of the parties when entering the three-cornered arrangement. In this view it is immaterial that the trial judge, in giving the instruction set out above, failed 'to tell the jury that the plaintiff, before being entitled to recover, should prove, among other things, that the person driving the automobile was in the prosecution and within the scope of the defendant’s business at the time of the occurrence. The defendant was not harmed by the failure to submit its contention upon this point; there was no issue of fact upon which the contention could be predicated.

The conclusion just stated is controlling of other assignments as made in grounds 5, 10* 12, 13, 14, 15, 16, and 17, and also of the general grounds of the motion for a new trial, except in relation to negligence.

The court charged the jury as follows: “Now, I am going to use this expression ‘ordinary care’ a number of times in this charge, and I want you to understand exactly what that means, because it has been defined by the law. Ordinary care is that degree of care and caution which every prudent person would use under the same or similar circumstances. Ordinary care in one place may not be ordinary care in another. So yon are to determine what is ordinary care on the part of either party at the time, place, and circumstances of the occurrence. As a matter of illustration, suppose a man was walking on the public highway in the center of Atlanta, — as, for instance, at the corner of "Whitehall and Alabama streets. He would have to exercise ordinary care not to be injured and not to injure anybody. If he was riding or driving he would be under the duty of exercising ordinary care not' to injure people and not to be injured under the conditions of the time, place, and circumstances surrounding him. Now, what would be ordinary care at that place would not be ordinary care in a place different from that, as, for instance, five miles out in the country, where there was not great traffic or congestion. So a man driving an automobile or a carriage or a buggy, or anything of like character, if he was at. a place where it was crowded, ordinary care would require greater care on his part than if he was out in a place where it was not crowded. So that in determining the question of whether this automobile was driven with ordinary care at the time and place and situation where this injury is alleged to have been inflicted, or whether this plaintiff in crossing the public highway or street at that time, whether under the circumstances he was guilty of negligence, or at least whether he observed ordinary care as to his own safety and as to avoiding the consequences of any wrong, if there was any wrong conduct by anybody else who happened to come in contact with him, would be for your determination.” The effect of the assignment upon this charge is merely that it omitted to -instruct the jury that a pedestrian should exercise greater care where traffic was congested, although it did instruct the jury to that effect with reference to one driving an automobile or truck, and that the charge thereby failed to state the contentions of the parties with equal fairness.

"We can hardly see that the charge deals with the contentions at all. The judge was undertaking to explain to the jury the meaning of ordinary care as defined in the code. It was inaccurate for the court to say that ordinary care in one place would not be ordinary care in another. There are no degrees in ordinary care, although “more or less care is required under different circumstances to amount to ordinary care.” The error in the explanation was not substantial, and, furthermore, the assignment does not complain that the exposition was inaccurate. See Central R. Co. v. Brantley, 93 Ga. 259 (3) (20 S. E. 98); White v. Knapp, 31 Ga. App. 344 (6) (120 S. E. 796).

There is no reason here for the grant of a new trial.

The court instructed the jury that every motor-vehicle, while in use or operation upon the streets or highways, should at all times be provided and equipped with a signaling device. It is assigned that this charge was inapplicable for the reason that the plaintiff did not allege that the automobile was so equipped, but merely that no signal was given. It appears from an examination of the record that, immediately after giving the excerpt complained of, the court explicitly instructed the jury that the plaintiff’s charge or allegation was that no signal by horn or otherwise was given.

Complaint is made also that the court charged: “Then there is a rule of the road requiring the passing to the right.” It is insisted that this charge was inapplicable because there was no passing, but the plaintiff was crossing a public street at right angles when the automobile came down the street and struck him. The jury more probably construed the charge favorably to the defendant, if they undertook to apply it at all, because the evidence shows that the truck was on the right side of the street and was about to turn further to the right into another street at the place where the injury happened.

Both of the charges here excepted to were irrelevant and inapplicable, but the mere fact that the judge interjects into his charge some abstract principle of law inapplicable to the issues of the case does not always require a new trial. Where such instruction has been given, a reviewing court looks to the whole record to see if the complaining party in fact suffered injury. If so, a new trial will result; otherwise not. We do not think that the jury were misled into considering foreign issues, or that the defendant was otherwise prejudiced by the instructions complained of. Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814).

There is no merit in the assignment that the court erred in charging the jury: “You consider . . whether a witness . . is related or not related to the parties in the case; and this word 'related’ would apply to business relations as well as relationship in blood,” upon the ground that the same directed the jury to consider the question of relationship, instead of informing them that they might do so. Jordan v. State, 130 Ga. 406 (3) (60 S. E. 1063). This, however, would seem to be one of the assignments controlled by our ruling in the second division of this opinion, and even if ordinarily such instruction would be error, it was harmless to the defendant in this case.

Nor is there any merit in the exception that the court failed to instruct the jury upon the subject of negligence, and failed to define that term. The general charge discloses that the jury were fully instructed in general terms upon this subject. It is not error to fail to define negligence in the absence of a proper request. Harvey v. Bartow County, 31 Ga. App. 84 (2 b) (119 S. E. 538).

There was sufficient evidence to establish the defendant’s negligence, the credibility of the witnesses being a matter for the jury; and it cannot be said that a finding was demanded that the plaintiff was equally negligent or could have avoided the consequences of the defendant’s negligence by ordinary care. Questions as to negligence and diligence and proximate cause are ordinarily to be solved by the jury. A finding for the plaintiff was fully warranted. Louisville & Nashville R. Co. v. Stafford, 146 Ga. 206 (91 S. E. 29); Harris v. Southern Ry. Co., 129 Ga. 388 (2) (58 S. E. 873); Seaboard Air-Line Ry. v. Hood, 127 Ga. 206 (56 S. E. 303); Howard v. Savannah Electric Co., 140 Ga. 482 (79 S. E. 112); Georgia R. Co. v. Wallis, 29 Ga. App. 706 (116 S. E. 883); Southern Ry. Co. v. Pair, 32 Ga. App. 378 (1) (123 S. E. 142).

It is insisted, though, that the verdict is excessive. In this case, as in Georgia Southern R. Co. v. Neel, 68 Ga. 609 (1), 611, “the plaintiff, in his declaration, does not allege the value of his services, but puts his case on the damages which he sustained by reason of the injury to his body, his pain and suffering, his confinement to his bed, and the actual outlay of expense in and about his” injury. The plaintiff does not in express terms pray for any damages for his lost earning capacity. He does ask for general damages. Georgia Ry. &c. Co. v. Howell, 28 Ga. App. 798 (3), 802 (113 S. E. 101). The evidence shows that he was absent from his employment only from September 17, 1921, to December 28th next following, that he is now receiving the same salary that was paid to him before the injury, and is engaged in the same work. He offered no evidence bearing directly upon the loss of earning capacity. He was thirty-nine years of age at the time of the injury. His left leg was broken near the knee. He had two operations, and carried his limb in a cast for eight .weeks. The trial occurred September 18, 1923. He testified that he suffered severe pain at the time of the injury, and that he still suffers to some extent; and that he has in part lost the use of his leg. The testimony of his physician was to the effect that he had very good results considering the nature and extent of the injury, but the jury were authorized to find that his injury will be permanent and that his pain and suffering will continue indefinitely, though perhaps it will not be intense. It was legitimate for them to consider also as a part of his pain and suffering that he will have to go through life with the impediment and inconvenience of a lame member. They could have found, too, that this condition would restrict his activities and pursuits, even if not his earning capacity, both in business and in pleasure. He alleged and proved expenses incurred on account of the injury to the extent at least of $550.

Assuming the action to be one for damage only for the injury and the pain and suffering incident thereto, past and future, and excluding all idea of loss of earning capacity, we cannot hold that the amount of the verdict, less the expense, is so great as to show bias, prejudice, or mistake on the part of the jury. Central of Georgia Ry. Co. v. Clark, 15 Ga. App. 16 (82 S. E. 600); White v. Knapp, supra; Georgia Ry. &c. Co. v. Howell, supra; Atlantic & Birmingham, R. Co. v. Douglas, 119 Ga. 658 (4) (46 S. E. 867); Holland v. Williams, 3 Ga. App. 636 (60 S. E. 331); Realty Bond &c. Co. v. Harley, 19 Ga. App. 186 (2) (91 S. E. 254); Seaboard Air-Line Ry. v. Miller, 5 Ga. App. 402 (63 S. E. 299); Dixie Mfg. Co. v. Ricks, 30 Ga. App. 433 (5) (118 S. E. 452); Betts Co. v. Hancock, 139 Ga. 198 (77 S. E. 77); Civil Code (1910), § 4504.

No prejudicial error appears. The court did not err in overruling the motion for new trial.

Judgment affirmed.

Stephens, J., concurs. Jenkins, P. J., disqualified.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15436.
    Bank of Emanuel v. Smith et al.

   Bell, J.

1. Where it does not appear that a party has held back evidence within his power to produce, the nonproduction of more full and definite evidence than he presents raises no presumption against him, ■ and there should be no charge given to the jury on the subject of such presumption. Schnell v. Toomer, 56 Ga. 168 (4); Shields v. Georgia Railway &c. Co., 1 Ga. App. 172 (2), 176 (57 S. E. 980); Central of Ga. Ry. Co. v. Bernstein, 113 Ga. 175 (5) (38 S. E. 394).

2. Neither can a presumption arise prejudicial to a party for his failure to introduce a witness, if the jury may be satisfied from .the evidence before them that the party who had such witness accessible has nevertheless proved his claim or established his defense. Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (4) (33 S. E. 471).

3. In a case where a witness is equally accessible to both parties and it would be as reasonable to expect one party to introduce him as the other, no presumption should arise against either party for a failure to introduce the witness. Southern Ry. Co. v. Acree, 9 Ga. App. 104 (70 S. E. 352); Brothers v. Horne, 140 Ga. 617 (3) (79 S. E. 468).

4. Where one who was sued by a bank upon a note pleaded and testified that on a certain date at the bank’s office he paid the note by a check delivered to the bank’s cashier, and where the person who.at the time was assistant cashier testified in behalf of the plaintiff that he was present and heard the conversation between the defendant and the cashier, and knew from that, as well as from records in the bank, that the check was delivered not in payment of the note sued upon, but in settlement of another note, which the bank held for collection, and where the cashier, who before the trial severed his- connection with the bank and .was not shown to have any further interest in the bank or the transaction in question, was present at the trial, equally accessible to both parties, it was error for the judge to give in charge section 5749 ■ of the Civil Code, providing: “Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, haying more certain and satisfactory evidence in his power, relies on that which is of a weaker ' and inferior nature, a presumption arises that the charge or claim is ■ well founded; but this presumption may be rebutted.” The facts did not warrant such instruction, and an exception thereto by the losing party should have been sustained.

{a) Especially was it error against the plaintiff to give this code section in charge under the circumstances appearing in the motion for a new trial, namely, that the instruction was given upon the oral request of the attorney for the defendant, made in the presence of the jury, after the judge had completed his general charge, and had “reference only to the failure of the plaintiff to produce and swear” the former cashier.

(6) Moreover, the instruction was erroneous for the reason that it informed the jury in effect that the testimony of the assistant cashier was of a weaker and inferior nature than the testimony of the former cashier would have been had he testified in the ease. Brothers v. Horne, supra. The fact that a party called only one of two witnesses who had an equal opportunity to know the fact which it was sought to establish did not authorize an inference that the other witness would have testified differently, or warrant an instruction to this effect to the jury. Citizens National Life Insurance Co. v. Ragan, 13 Ga. App. 29 (6) (78 S. E. 683).

Decided August 13, 1924.

Complaint; from city court of Swainsboro — Judge Kirkland. February 2, 1924.

Price & Spivey, Arthur W. Jordan¡ for plaintiff.

J. Alex. Smith & Son, for defendants.

5. The above rulings are not intended to be exhaustive of the circumstances in which the above-mentioned code section may or may not be given in charge. 10 R. C. L. 886, 1090; .Tones on Evidence, 22.

6. Error against the plaintiff was committed also in the admission of evidence, over timely and proper objection, that in other specific instances makers of notes, which the bank held and sought to enforce, contended that the notes had been paid. Civil Code (1910), §§ 5744, 5745, 5762. . Since a new trial is ordered for another reason, it is not determined whether the error pointed out in this paragraph would be sufficient, standing alone, to demand a new trial.

Judgment reversed.

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


text:
    15481.
    Norris v. Carter & Nelson.
   Bell, J.

1. “The remedy by affidavit of illegality, against an execution which has been issued illegally, or which is proceeding illegally, is purely statutory, and except to the extent that the statute provides there is no such remedy.” It is provided by “the statute that a defendant in execution can only file an affidavit of illegality when his property has been levied upon.” State v. Sallade, 111 Ga. 700 (1), 702 (36 S. E. 922); Civil Code (1910), § 5306. This case is controlled by the decision of this court in Jackson v. Barksdale, 17 Ga. App. 461 (87 S. E. 691), wherein it was held: “There being no levy upon the property of the defendant and no bond given by him to dissolve the garnishment based upon the judgment against him, he was not such a party to the garnishment proceedings as to authorize the interposition of an affidavit of illegality on his part.” See also Leake v. Tyner, 112 Ga. 919 (38 S. E. 343); Flynn v. Jackson, 18 Ga. App. 624 (90 S. E. 83); James v. Edward Thompson Co., 17 Ga. App. 578 (87 S. E. 842); Dent v. Dent, 118 Ga. 853 (45 S. E. 680).

2. That the plaintiff in fi. fa. went to trial in the justice’s court on the merits of the affidavit of illegality, where judgment" was rendered against the illegality, did not preclude the plaintiff in fi. fa. from making a motion to dismiss the affidavit of illegality on the call of the case in the superior court, to which the defendant had appealed. Civil Code (1910), § 5014; Paxton v. Berrien County, 117 Ga. 891 (2) (45 S. E. 266); Macon & Birmingham Ry. Co. v. Walton, 121 Ga. 275 (2) (48 S. E. 940).

Decided August 13, 1924.

Appeal; from Morgan superior court — Judge Park. March 3, 1924.

E. H. George, for plaintiff in error.

Williford & Duhe, contra.

3. As to whether such judgment in the justice’s court should conclude the defendant in fi. fa. on the merits of the illegality, upon the affirmance of its dismissal on motion of the-plaintiff in fi. fa. in the superior court where it was pending on appeal, see Civil Code (1910), § 5014; Fagan v. McTier, 81 Ga. 73 (6 S. E. 117). On the right of the garnishee to attack the main judgment against the defendant in fi. fa., see Farmers & Traders Bank v. University Pub. Co., 9 Ga. App. 128 (2) (3); Holbrook v. Evansville & Terre Haute R. Co., 114 Ga. 1 (2) (39 S. E. 937); Warner v. Strickland, 144 Ga. 547 (87 S. E. 667).

4. The superior court did not err in dismissing the affidavit of illegality, where it appeared therefrom that no levy had been made upon any of the defendant’s property, and where the defendant in fi. fa. claimed the right to interpose the affidavit of illegality, in the absence of a levy, merely because certain funds belonging to him had been impounded by garnishment. Compare Ben Hill County v. Massachusetts Bonding Co., 144 Ga. 325 (87 S. E. 315).

Judgment affirmed:

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


text:
    15557.
    Gardner v. Parker.
   Bell, J.

1. A counter-affidavit to the foreclosure of a laborer’s lien may be interposed at any time before the sale of the defendant’s property. There. is no law requiring its interposition at the first or any other term after the foreclosure. Smith v. McPherson, 78 Ga. 84. Nothing to the contrary is ruled in any of the following cases: Giddens v. Gaskins, 7 Ga. App. 221 (66 S. E. 560); Tipton v. Conrad, 21 Ga. App. 593 (94 S. E. 815); Wilson v. Griffin, 22 Ga. App. 451 (96 S. E. 395); Harvey v. Johnson, 28 Ga. App. 287 (111 S. E. 576).

2. A counter-affidavit which does not contest the amount or justice of the plaintiff’s claim, or the existence of the lien, does not make any issue which can be tried. Murphey v. McGough, 105 Ga. 816 (2) (31 S. E. 757).

3. The foreclosure of such a lien is final process. A counter-affidavit, in order to arrest the proceeding and transform it into mesne process, must set forth and allege substantial facts affirmatively showing either that the laborer is not entitled to the lien, or that the amount for which the lien is claimed is too large. The counter-affidavit cannot supply the office of a demurrer. Boyce v. Day, 3 Ga. App. 275 (3, 4) (59 S. E. 930).

4. The counter-affidavit in the instant case, as originally filed in the justice’s court, did not contest the amount or justice of the plaintiff’s claim, or the existence of the lien, but merely urged that the foreclosure showed upon its face that the magistrate had no jurisdiction to entertain it. This contention was without merit, since the general lien of a laborer, — that is, against the property of the employer generally and not merely against land, — may be foreclosed in a justice’s court, although the labor was performed in the 'improvement of real estate. Dixon v. Williams, 82 Ga. 105 (3) (9 S. E. 468). Such counter-affidavit raised no issue to be tried, and was not aided by an amendment offered and allowed in that court, seeking to tender an issue of fact, but not sworn to. There can be no counter-affidavit minus the affidavit. When there is no affidavit there is no case and no issue to be tried. Moultrie Lumber Co. v. Jenkins, 121 Ga. 721 (3) (49 S. E. 678). See also Griggs v. Willbanks, 96 Ga. 744 (22 S. E. 327); Yancey v. Karwisch, 129 Ga. 788 (59 S. E. 777).

Decided August 13, 1924.

Appeal; from Fulton superior court — Judge E. D. Thomas. March 13, 1924.

Lawton Nalley, for plaintiff in error.

Parker & Patterson, contra.

5. Nor was it permissible to -amend the counter-affidavit in the superior court (to which the defendant appealed from a judgment in the justice’s court which he conceived to be erroneous) by alleging under oath the same facts which were set up in the unverified amendment in the justice’s court. The justice’s court having had no case to try, none could be made by amendment in the superior court. Singer v. Middleton, 135 Ga. 825 (1), 826 (70 S. E. 662); Southern Railway Co. v. Born Steel Range Co., 122 Ga. 658 (4) (50 S. E. 488). The latter court did not commit error of which the defendant can complain when on motion of the plaintiff it ordered “that said case be dismissed and the same remanded back to the justice court and to the levying officer.”

6. Other questions, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

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


text:
    15657.
    HOBBS et al. v. TINDOL, sheriff, for use, etc.
    1. Where, under a forthcoming bond, a claimant procures the possession of the property levied upon, and the property is found subject, an action upon the bond is maintainable without an advertisement of the property for sale and without proving that any personal demand therefor was made before suit, if the claimant has disposed of the property so that he could not have produced it had a demand been made therefor either in person or constructively by the sheriff’s advertising the property for sale. The evidence in this case demanded a finding that the bond had been breached, and the court did not err in refusing a written request to charge which would have submitted that question to the jury.
    2. Where personal property is levied upon under any judicial process, and a forthcoming bond for it is given, the measure of damages to be recovered upon the bond in case of a breach is the value of the property at the time of its delivery to the clavmant under the bond, with interest thereon, not exceeding the amount of the execution. The request to charge upon the subject of damage was not in accordance with this rule, and was properly refused.
    3. In the trial of an action upon a forthcoming bond it was not error to charge the jury that the fact that the claimant executed the statutory bond in double the value of the property levied upon could be considered by the jury as a circumstance, together with all the other evidence, in determining the value of the property at the time the claimant acquired possession thereof under the bond.
    Decided August 13, 1924.
    Action upon bond; from city court of Dublin — J. E. Burch, judge pro hac vice. April 21, 1924.

      S. P. New, for plaintiffs in error.

      Blaclcshear & Harrell, contra.
   Bell, J.

This was a suit upon a forthcoming bond in a claim case, after the property had been found subject to the fi. fa. There was no advertisement of the property for sale. The plaintiff contended that the bond had been breached because a demand for delivery of the property was made and refused, and also because by a sale of the property the defendants had placed it beyond their control. The defendants took issue upon both propositions. With respect to the disposition of the property they contended that, while it was true that it had been disposed of by the claimant, it was sold by him with the condition that he should have the right to reclaim it of his vendee and to deliver it to the sheriff in the event it should be advertised for sale or demanded. The trial resulted in a verdict in favor of the plaintiff, and the defendants excepted to the overruling of their motion for a new trial.

Error is assigned upon the refusal of a written request to charge as follows: “If you believe that when the defendant I. 0. Hobbs sold and disposed of the automobile in question that it was a part of the contract of sale that Hobbs should have the right to deliver said car to the sheriff in the event it should be advertised by him for sale, or demanded, and if in that connection you also believe that the defendant I. 0. Hobbs, or the other defendant, by option or otherwise, still had their right to deliver the property to the sheriff, then such a sale or disposition would not be a breach of the bond.” I. 0. Hobbs, the claimant and the principal in the bond sued on, testified that he traded the car to a Mr. Johnson, a resident of Dublin, before the suit was filed, but that it was traded with the understanding that the claimant would have the right “to produce it subject to any advertisement or demand. . . Johnson traded the ear and it finally got in the hands of one Wilson, who has it here in Dublin now.” O. D. Barron, the surety in the bond, who appears to have held the property at one time under the defendant in fi. fa., testified that he had traded it to Hobbs, reserving the title, and that Hobbs traded it subject to its production under the terms of the bond.

It would seem that proof that the claimant had sold the property would establish a breach of the bond, unless the claimant should show not merely that he retained the right to repossess it if called for by the officer for sale, but that he had the power to do so. But assuming that the sale or transaction between Hobbs and Johnson, in which the title to the car appeared to pass subject only to the right of the claimant to repossess it if necessary to produce it under the terms of the bond, would not, without more, have amounted to a breach of the bond, the claimant, on admitting the sale to Johnson, had the burden of showing that his control of the property was retained not only while it was in the hands of Johnson, but while it was in the possession of Wilson as well. He failed to show that the holding of Wilson was subject to such a condition. Civil Code (1910), § 3318. Thus it conclusively appears from the evidence that the claimant had placed the property beyond his control and could not have produced it in ease the officer had demanded it. There was an issue as to whether any demand was made, but, it being established, as a matter of law, that the bond had been breached, irrespective of demand or advertisement, there was no issue to submit to the jury on that question, and the court did not err in refusing the request. Spence v. Coney, 97 Ga. 441 (25 S. E. 316). Any opinions given by the defendants as witnesses that the property remained subject to the claimant’s control were not supported by the facts stated. See Quitman Oil Co. v. Peacock, 14 Ga. App. 550 (3) (81 S. E. 908); Welch v. Stipe, 95 Ga. 762 (22 S. E. 670).

It is true that it does not appear whether Wilson procured the automobile from Johnson before or after the suit was brought, but the rule is here applicable that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23). The uncertainty as to whether the property went into the hands of Wilson before or after the suit, and, therefore, as to whether or not the bond had been breached before suit thereon, should, in view of the vague and equivocal character of this testimony, be resolved against the defendants, and construed to mean that the property passed out of the control of the claimant prior to the suit. The only testimony relating to the transaction between Johnson and Wilson was that of the claimant himself.

It is provided by the Civil Code, § 6043, that whenever personal property is levied upon under any judicial process from the courts of this State, and a forthcoming bond is given for the same, the measure of the damages to be recovered upon such bond shall be the value of the property at the time of its delivery under the bond, with interest thereon,-not exceeding the amount due on the execution levied. The provisions of this section include actions upon forthcoming bonds in claim cases. The court refused a written request' to charge which was designed to submit to the jury the question of the value of the property at the date of the levy; and the court was right in refusing it. The case is not altered by the fact that the error in the request may have been favorable to the plaintiff.

The claimant assigns error upon the following excerpt from the court’s charge: “The mere fact that one. gives a claim bond and executes the bond in double the value of the property levied upon, the alleged value of the property levied upon is not conclusive proof of the value of it, and it only goes to you for consideration as a circumstance together with all the other evidence in'the case in determining what is the truth of this transaction.” Where a levy is made upon property that is claimed by a third person, and such person shall desire the possession thereof, the sheriff or levying officer shall take bond with good security for a sum equal to double the value of the property levied upon, to be estimated by the levying officer. Civil Code (1910), § 5160. The claimant has no voice in fixing the amount of the bond, but it is not essential to his claim that a forthcoming bond be given. If he thinks the sheriff’s valuation is not fair, he may leave the property in the sheriff’s hands, and nevertheless prosecute his claim. The sheriff is a sworn officer presumed to be impartial and to discharge his duty. He acts under duty in fixing the amount of the bond in double the value of the property. Assuming that his assessment of such value would not be prima facie evidence against the claimant, in a suit on the bond, it is at least a circumstance which may be considered by the jury in determining the value of the property at which the claimant shall be charged. It follows that the court did not err in giving the excerpt complained of. See Town of Ripton v. Brandon, 80 Vt. 234 (2) (67 Atl. 541).

This ruling is not in conflict with the decision in Downs v. Berryman, 24 Ga. App. 170 (100 S. E. 226). In that case the replevy bond which the defendant elected to make was in a trover case, and had to be in “double the amount sworn to” by the opposite party at interest. In such a case the plaintiff has not the liberty in making or declining to make the replevy bond that the claimant has in electing to give or not to give a forthcoming bond in a claim case. Civil Code (1910), §§ 5152, 5154.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    14399.
    Medders v. Lewis.
    Decided August 13, 1924.
    Attachment; from city court of Baxley — Judge Speer. Feb-’ ruary 14, 1923.

      H. L. Williams, for plaintiff in error.

      V. E. Padgett, contra.
   Jenkins, P. J.

Under the answer of tlie Supreme Court to the controlling question in this ease certified to it by this court, the declaration in attachment in the city court of Baxley was filed too late, and the court erred in overruling the defendant’s motion to dismiss. Medders v. Lewis, 158 Ga. 417 (123 S. E. 605).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14971.
    Frank & Meyer Neckwear Company v. White.
   Jenkins, P. J.

On the first trial of this action on open account for the purchase-price of neckties, a nonsuit was granted, but the judgment was reversed. See Frank & Meyer Neckwear Co. v. White, 29 Ga. App. 694-697 (116 S. E. 855), where the essential pleadings, documentary evidence, and contentions of the parties are set forth. In the second trial the evidence for the plaintiff was substantially the same except that it did not put the defendant on the stand; and evidence was offered for the defendant. The court on motion directed a verdict for the plaintiff, but granted the defendant’s motion for a new trial, based upon this ground and upon exceptions to the admission of evidence. The plaintiff excepts to this order, contending that the verdict as directed in its favor was demanded. Held:

1. In reviewing' the judgment granting a nonsuit on the first trial, this court held that the action on open account was maintainable, since “it appears that the goods, after being delivered by the seller to the carrier and received by the vendee, were, without any authority from the seller, delivered back to a carrier by the vendee for the purpose of being- returned to the seller, under a contention that the goods as shipped did not conform to the contract of purchase,” and that “after the seller had refused to accept their return, the vendee thereupon directed the carrier to return the goods to him, and after thus regaining possession of them continued to hold them in his possession and under his control, without any further notice to the seller.” Frank & Meyer Neckwear Co. v. White, supra. In the last trial, it was shown that, after the defendant vendee had attempted to return the goods to the plaintiff' seller, and the express company had notified him of their rejection, the defendant in two letters directed the carrier to return the goods to him, and they remained in his possession. This exercise of dominion over the goods, after complaint that they did not conform to the contract, constituted a waiver of the previous objections and amounted in legal effect to an acceptance of the shipment, notwithstanding the defendant’s testimony in the instant trial that, after such acts of dominion and ownership, he wrote the seller that he “wouldn't accept the ties, that they were here subject to their orders.” 35 Cyc. 258.

2. On the former trial of this case it was held that “questions arising as to the proper construction of the written order, not being presented by any exception to the order granting *a nonsuit, are not before this court for determination;” but that, since “duplicate copies of the original order were made by the salesman of the plaintiff vendor, one of which was forwarded to the plaintiff, and the other of which was delivered to the defendant vendee, . . and . . in letters written by the defendant to the plaintiff not only was the existence of the contract as evidenced by such duplicate copy in his possession recognized, but the terms thereof were insisted upon,” the ease was taken out of the operation of the statute of frauds. The only questions left in the instant trial relate to the amount due under the contract, relied upon by both parties. The documentary evidence of the defendant’s recognition and insistence upon the provisions of his duplicate order for the goods being the same as in the previous trial, so far as such sales order purported to integrate within itself the terms of the sale, it was binding' upon the parties and not subject to variance by parol. On this printed order, under a column headed by the printed words “Quan. of ea.,” opposite certain indicated style numbers, appears a list of items in connection with what purports to be pattern numbers of neckties, as follows: “1 Dz. ea. 4-Hds. — 9439-9440-9408-9449-9467;” “2 Dz. ea. 4-IIds. 9459-38-54-31-53;” “2 Dz. ea. 4-Hds. 9036-9027;” “2 Dz. 4-Hds. 8915;” “1 Dz. ea. 4-Hds. 8836-8850;” “1 Dz. ea. 4-Hds. 8425-8449;” “1 Dz. ea. 4-Hds. 8671-8464;” “2 Dz. 4-Hds. 8105;” “1 Dz. 4-Hds. 8101,” the price per dozen being placed opposite the respective items. The defendant contended that the order was for only 13 dozen ties, and not 30 dozen as contended by the plaintiff. The defendant himself testified that “Dz.” meant “dozen,” and that “Dz. ea.” in past orders had meant “dozen each” of the pattern numbers specified, although he contended that the abbreviation “ea.” for “each” did not have that meaning in the order in question. There being no fair dispute as to the meaning of the abbreviations, and that their use opposite the various pattern numbers must be taken as ordering so many “dozen each” of the indicated patterns, as contended by the plaintiff, a verdict in its favor upon that issue was demanded. See Carr v. Louisville &c. R. Co., 141 Ga. 219, 222 (80 S. E. 716).

3. The defendant set up in his plea, “That said neckwear was defective and not of the kind and quality ordered, for the reason that it was understood by plaintiff and defendant that said neckwear should have attached the firm label- of the defendant, it having always been the custom of the plaintiff to attach the label of defendant to all shipments of neckwear ordered by defendant, and it was understood and agreed at the time of this order that said neckwear should have labels as heretofore attached, and plaintiff did fail and refuse and omit to attach said labels, which omission rendered said neckwear practically useless and of no value to defendant.” It appears that the order contained this printed language: “To avoid mistakes in printing labels• attach sample of label desired or letterhead. Print copy for labels here.” No form or direction by the defendant to furnish the labels appears on the order. There was a conflict, however, between the testimony of the defendant and of the qilaintiff’s salesman as to whether the defendant had orally ordered the labels, although there was no dispute that, if the defendant had so ordered them, they would have been inserted without extra cost to the defendant. Reid:

[а) Treating the plea as one of breach of contract, and the evidence as to the alleged oral order and undertaking to insert the printed labels on the ties as not in conflict with the terms of the writing, especially since the right of the customer to have such labels when requested seems to be implied by the quoted language providing for the attachment by the customer of a sample of the desired label, it nevertheless appears that, after complaining of the plaintiff’s failure to comply with this alleged obligation, the defendant, after shipping the goods to St. Louis, Missouri, directed the carrier to return them to him at Macon, Georgia, and by his acts of dominion and ownership in thus controlling and regaining possession of the goods, which amounted in law to an acceptance, waived any failure on the part of the plaintiff to comply with its alleged undertaking, as a ground for rejecting the goods.

(б) Treating the plea as one of failure of cohsideration, “an action for the purchase price of goods cannot be defeated by a plea of total failure of consideration, unless the evidence shows that they were totally worthless for any purpose.” Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (4) (118 S. E. 446). “While a plea of total failure of consideration includes partial failure of consideration, there must be evidence introduced showing the extent to which the consideration has failed, before a verdict can be rendered giving the defendant the benefit of a partial failure.” Grier v. Enterprise Stone Co., 126 Ga. 17 (54 S. E. 806); Prescott v. Seacoast Fertilizer Co., 30 Ga. App. 193 (117 S. E. 254). The evidence failing to show either that the goods were totally worthless for any purpose, or any data by which the jury could ascertain and pass upon the extent of any partial failure of consideration, a verdict for the plaintiff on this portion of the plea was demanded.

Decided August 13, 1924.

Complaint; from city court of Macon — Judge Gunn. July 16, 1933.

Application for certiorari was denied by tbe Supreme Court.

Brock, Sparks & Bussell, for plaintiff.

T. A. Jacobs Jr., Harris, Harris & Witman, for defendant.

4. The verdict for the plaintiff being demanded upon all issues and questions undetermined by the previous adjudication in the case, it was error to grant a new trial.

Judgment reversed.

Bell, J., concurs. Stephens, J., dissents.


author: Jenkins, P. J. Jenkins, P. J.

text:
    14865.
    LINENKOHL v. CURINGTON et al.

   Jenkins, P. J.

1. Assuming, under the rulings made in Bolden v. Central of Ga. Ry. Co., 130 Ga. 456 (60 S. E. 1047), and Morris v. Charleston &c. Ry. Co., 22 Ga. App. 186 (95 S. E. 748), that in the instant action by a servant against his masters for damages on account of injuries arising from the sudden collapse of a jack furnished to the plaintiff by the defendants, and which at the time of the accident was supporting an automobile on which the plaintiff was working, the defects alleged, so far as they consisted of the worn condition of the notches and the click or finger intended to fit into them and by which the jack was raised or lowered, were, under the evidence for the plaintiff, patent defects, which the servant had equal means with the masters of knowing and which were so obvious that the servant, who testified that he was a skilled mechanic, must in the exercise of ordinary care be held to have ascertained such defects and been aware of the attendant dangers upon a casual or superficial examination, it nevertheless appears that there was evidence for the plaintiff, supporting one of the averments of the petition, from which the jury would have been authorized to find that, despite such patent defects, the accident would not have occurred but for the alleged latent defect in the spring, the function of which was to force the click or finger into the notches of the jack so as to cause it to be held in position. In view of the allegations and proof of such latent defect, which might under the evidence have been found to have constituted the proximate cause of the injury, and in view of the plaintiff’s testimony that he had never before used this particular jack, it was error to withdraw from the consideration of the jury the question Of defendants’ negligence by granting a nonsuit in their favor. Williams v. Garbutt Lumber Co., 132 Ga. 221 (64 S. E. 65); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (1 d), 315 (58 S. E. 524); Hubbard v. Macon Ry. & Lt. Co., 5 Ga. App. 223 (2), 224, 225 (62 S. E. 1018); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244); Texas Co. v. Hearn, 23 Ga. App. 408 (2) (98 S. E. 419); Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225).

Decided April 19, 1924.

Adhered to on rehearing, September 19, 1924.

Action for damages; from city court of Macon — Judge Gunn. June 18, 1933.

B. B. Feagin, J. F. Urquhart, for plaintiff.

John B. L. Smith, Grady G. Harris, for defendants.

2. The court did not err in refusing to permit the plaintiff to prove declarations of a third person, not made in the presence of the defendants, by which it was sought to establish the defendants’ actual knowledge of the defective condition of the jack.^

Judgment reversed.

Stephens and Bell, JJ.,-concur.

ON REHEARING.

Jenkins, P. J.

The defendants in error moved for a rehearing, upon the ground that this court, in reaching the conclusion in its original syllabus that “there was evidence for the plaintiff, supporting one of the averments of the petition, from which the jury would have been authorized to find that . . the accident would not have occurred but for the alleged latent defect in the spring, the function of which was to force the click or finger into the notches of the jack (whose sudden collapse caused the injury) so as to cause it to be held in position,” overlooked material facts in the record, which conclusively showed that the plaintiff had equal means with the defendants of knowing the alleged defective condition of the spring, and that no one knew more about such condition than the plaintiff, who just before the injury had pressed the button controlling the spring, in order to raise the jack to its position supporting the automobile on which he was working; and that-the plaintiff therefore, under the Civil Code„(1910), § 3131, was not entitled to recover on account of any negligence by the master in connection with such defect.

Some of the evidence to which the court referred in the original syllabus was as follows (italics ours) : The plaintiff swore that “the wearing or the spring being old would have something to do with the finger. If that lever should slip for one notch, and that spring was in good condition, it would catch on the next notch. If it had caught on the next notch, the lever wouldn’t have come up and struck me. . . The same thing could have happened to me with any jack of this make, if it was worn. Suppose it hadn’t been worn, that thing could have happened to me with a Eed Devil jack in its normal condition, if that spring had been too stiff or too weak. . . Besides that back ratchet, the spring could have affected it. . . In pulling this lever down, if this spring works properly, it throws that finger in each notch as it goes down. You don’t have to work that plunger that controls that finger with your finger as it goes down.- When you pull it down, this spring is supposed to throw that finger in one of those notches. If that spring was weak at that time, so that it didn’t throw that finger in there, that could have been the cause of this flying up.” Taylor, a witness for the plaintiff, testified that he himself had also previously used the jack in question, and that “the spring and lever seemed to be pretty iveak. From my experience in using a jack I would say that that spring was weak.” The amended petition alleged as a defect in the jack that “the spring in the lever of said jack, which operates the click or finger in and out of the notches of said ratchet sector of said jack, was so worn and weakened by usage that it would not project the finger or click into the notches of said ratchet sector of said jack so as to hold said lever of said jack stationary.” The plaintiff, under this testimony and other evidence, and proof of the sudden collapse of the jack without warning, relied on the evidence maxim “res ipsa loquitur.” It was, under the evidence, properly for the jury, rather than for the trial judge or this court, to say whether the alleged defective spring or some other defect was the proximate cause of the injury.

But it is contended that, even though the alleged defect in the spring may have been latent, the plaintiff had equal means with the defendant masters of knowing such condition, and, having previously pressed the button by which the strength of the spring could be determined, knew as well as they as to such defect. It appears that the work on the car, in which it became necessary to elevate the wheels by a jack or other means, was a hurry job, and that the plaintiff was directed by the masters “to do it as quick as I could.” The plaintiff testified that he had never before used this particular jack, which at the time was the only one available, and that in his hurry, while he mashed the button controlling the spring, he made no examination at all of the jack or its parts, or of the spring concealed within the jack. “If you were in a hurry, you wouldn’t notice whether the spring was weak or not. . . The spring up there in the upper end, you can’t see it; you can feel it, but I didn’t notice it. . . 'I didn’t notice about having to put my thumb on it and push it. I didn’t notice the effect of the test.” Under the circumstances attending the use of the jack, and the speed at which the plaintiff under the direction of the masters was using the mechanism, it cannot be said as a matter of law that this evidence absolutely requires the conclusion that the plaintiff knew or had means of knowing as well as the masters the alleged weakened condition of the spring, or that he must necessarily be assumed to have noted this latent defect in his one hurried use of the button for the first time in raising the jack immediately before its fall. These questions were for the jury. Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (supra). “Except where the injured employee is an inspector, the master’s means of knowledge of latent defects in the machinery furnished are primarily to be considered as greater than those of the servant. The duty of inspecting for defects which would not be disclosed by superficial observation is not primarily imposed upon a servant employed to operate a machine.” Hubbard v. Macon Ry. & Lt. Co., 5 Ga. App. 223 (2, 3) (supra); Cochrell v. Langley, supra, p. 324; Duke v. Bibb Mfg. Co., 120 Ga. 1074 (48 S. E. 408); Williams v. Garbutt Lumber Co., 132 Ga. 221, 231, 232 (supra); Stewart & Jones Co. v. Griffin, 19 Ga. App. 554 (2, 3) (91 S. E. 923). Under the Civil Code (1910), § 3130, and the rule as stated in International Cotton Mills v. Carroll, 22 Ga. App. 26 (1 a) (95 S. E. 472), “upon the master rested the duty of furnishing reasonably safe machinery, and of inspecting to find latent defects and dangers therein, and the servant was not bound by law to detect latent defects, or such as would be disclosed only by positive and careful investigation and would not be manifest to a person of ordinary intelligence or experience in the line of work in which the servant was engaged.” Under the evidence, upon which a nonsuit was granted, it was for the jury to say whether the plaintiff should recover. If similar evidence be introduced in a second trial, it would be for the jury to say, under all the evidence and the circumstances surrounding the injury, whether the spring was defective as alleged or was “reasonably safe for all persons who operated it with ordinary care and diligence;” whether such defect or some other cause was the proximate occasion of the injury; whether, if there was such a latent defect in the jack, unknown to the servant, the master knew or ought to have known thereof, and failed to warn the servant in respect thereto; and whether the plaintiff servant “did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.” Civil Code -(1910), §§ 3130, 3131. For the reasons stated, the court adheres to the judgment and syllabus as originally rendered.

Judgment adhered to.

Stephens and Bell, JJ., concur.