text:
    17147.
    HALLY v. STANDARD LIFE INSURANCE CO.
    Decided September 28, 1928.

      Bryan & Middlebroohs, N. P. Anderson Jr., Samuel Barnett, for plaintiff.

      Kendrich L. Scott, Little, Poioell, Smilh & Goldstein, for defendant.
   Stephens, J.

(After stating the foregoing facts.)

My views are at variance with those of my colleagues as to the proper disposition of this case. The following is a statement of their opinion: “Under the facts of this case the insurance policy sued on had become absolutely null and void at the time of decedent’s death. It is conceded that the loan on the policy, with the accrued interest thereon, had exhausted every particle of its cash value. It is conceded that more than thirty days of grace during which the premium might have been paid had elapsed prior to the death of the insured. It is true that under the terms of the policy, after the expiration of the thirty days of grace allowed for payment of the premium, the insured was still entitled to another thirty days in which he might exercise his choice of claiming any one of the three options provided for by the policy under which any reserve value remaining in the policy would be applied. Under the terms of the policy, if such choice was not exercised within the period of such additional thirty days, the second option provided for by the policy would be automatically put in operation. This can not mean, however, that if the policy had no reserve value, and had become absolutely dead by virtue of the insured having failed to pay the premium within the thirty-day period of grace allowed, the policy might still be kept in force in order that the insured might choose one of three options, when he was entitled to the exercise of no option at all.

“The policy provides also that a failure to pay any loan or interest thereon shall not avoid the policy unless the' total indebtedness to the company shall equal the cash surrender value at the time of such failure, nor until one month after notice shall havé been-mailed by the company to the insured. This provision of the policy with reference to a forfeiture of a live policy for nonpayment of a loan.or interest thereon would not seem to have any possible application in a case where the policy having no reserve value had already become null and void on account of the failure of the insured to pay a premium within the period of grace provided. After the policy had become lapsed on account of the failure of the insured to pay the premium within the period of grace allowed, the only right of the insured, under the terms of the policy, was to apply whatever cash value it might then have according to the option of his choice. If it had no cash value, there was nothing to apply, and the policy became absolutely null and void. The provision with reference to the forfeiture of a live policy on account of the nonpayment of a loan or of interest therein could not have reference to a policy already dead on account of a failure to pay a premium as required, and could not be construed as being intended to give to the insured the right to create a cash value by repaying a past-due loan on a dead policy.

“The provision 'all or any part of such loan may be paid at any time’ would seem, in view of other stipulations, merely to give to the insured the right of payment before maturity. But even assuming that during the thirty-days period intervening next after the period of grace the insured might have paid the loan and thus have created in the policy a value, as to which he might have exercised one of the options provided for, or as to which, in the absence of his election, option 2 would have become automatically operative, the fact remains that the insured died without paying such loan, when its payment certainly was a condition precedent to the revival of any rights which he may have had under the policy at the time of his death. Under the facts as they existed at that time, the fixed rights of the parties were such that the policy was exhausted, and on the insured’s death no cause of action arose against the company in favor of the beneficiary.”

My own opinion, being a dissent from the views of the majority, is as follows: On the 5th day of March, 1927, the following question in this case, with a statement of facts containing the foregoing provisions of the policy, was certified to the Supreme Court: “Upon the death of the insured on February 13, 1921, which occurred without the insured having exercised any of the options mentioned in the policy, and without having paid the loan against the policy, which was equal to the cash surrender value, and without having paid the premium due on January 7, 1921, the period of grace for the payment of which had expired on February 7, 1921, was the policy in force for its full face value, or for its full face value less the unpaid premium and the loan, or had the policy lapsed and become of no value?”

The Supreme Court, in an opinion dated February 18, 1928, on the authority of Southern Exchange Bank v. First National Bank, 165 Ga. 289 (140 S. E. 753), refused to answer this question, and by an order dated March 20, 1928, returned the case to this court. Hally v. Standard Life Ins. Co., 165 Ga. 838 (142 S. E. 147). The question is therefore before this court for determination.

The able and learned counsel for the defendant insurance company insist that under the terms of the policy it had lapsed and ceased to be of any validity or effect whatsoever upon the failure of the insured to pay the premium due thereon before 'the expiration of the last day of grace, namely,- February 7. They rely upon that provision of the policy which provides that “failure to pay any premium . . in full within the period allowed for said payment by the policy . . shall cause the insurance thereunder to cease and determine ipso facto immediately save as herein otherwise specifically provided.” If this clause were not modified and restricted in a manner favorable to the insured by other provisions of the policy which this clause itself, by the expression “save as herein otherwise specifically provided,” recognizes as containing modifications of its provisions, the insistence of the insurance company that by the terms of the policy it had lapsed and ceased to be of any force whatever prior to the death of the insured would contain some merit. It is, however, elsewhere in the policy provided, that, for a period of thirty days after the last day of grace-allowed for the payment of the premium, the policy “may be surrendered, . . and upon such surrender” the insured has the right to elect to take paid-up, or term insurance, or to withdraw the cash surrender value, provided the policy possesses any net cash value, after a deduction of the indebtedness due by the insured under the policy, which can be paid as net cash surrender value. The lapsing of the policy, for nonpayment of the premium and before the expiration of the grace period for the payment of the premium, would not, by virtue of the clause providing for the cessation and termination of the insurance on nonpayment of the premium, “save as herein otherwise specifically provided,” operate to void the policy as an existing contract of insurance, unless the other provisions of the policy, when construed most favorably to the insured, including that authorizing, upon the exercise of the options contained in the policy, a continuance of the insurance, demand such a construction. Since, under the terms of the policy, the insured, during the thirty-days period after the policy had lapsed for nonpayment of the premium, could “surrender” the policy and, by applying the net cash value over and above any indebtedness outstanding against the policy, take certain options provided therein, the policy clearly, during this period, afforded to the insured certain contractual rights, and was therefore not entirely dead. During this period, after the policy had “lapsed,” if it possessed any net cash value, it possessed some life, and, upon the exercise during this period of certain options by the insured, could by its terms be “confirmed” in force as a valid contract of insurance. Since, during this period, after the policy has lapsed, the insured is given the right to “surrender” the policy and elect to take one-of the options provided for in the policy, which election, when made, will, by the terms of the policy, operate to “continue” the insurance in force for a term extending beyond this thirty-day period, it does not appear unequivocally that the insurance, if the policy possessed any net cash value, had ceased to exist upon the 7th of February, the date upon which the policy had “lapsed,” but on the other hand it clearly appears, from the provisions of the policy, that the insurance provided for therein would have “continued” in existence for thirty days after the 7th of February, the date upon which the policy had lapsed, and was subject to be further “continued” in existence for a term beyond the thirty-days period expiring March 9, upon election by the insured to exercise an option contained in the policy. It would seem that the clear import of the policy is to continue-in force existing insurance under a live policy, rather than to afford to the insured the right to make a new contract for insurance or to revive a policy that is dead. It would seem, therefore, that, upon the death of the insured on February 13, within this thirty-days period, irrespective of whether he had exercised any of the options contained in the policy, if it had possessed any net •cash value, the policy would have been in force for its full face value, subject, of course, to any indebtedness chargeable against it. The insurance company could not have forced the insured to accept the net cash value of the policy. Certainly, therefore, the company could not retain the net cash value and claim, upon the death of the insured within this thirty-days period without having made an election to which he was entitled, that the policy at the time of his death was of no force whatsoever and that the beneficiary therein would be entitled to nothing.

Had the insured, at any time between February 7 when his policy had “lapsed”for nonpayment of the premium and the date of his death on February 13, elected to apply the cash value of the policy towards the purchase of extended insurance in the full value of the policy, as he could have done under the terms of the policy, provided no loan was against the policy, he would have purchased insurance which would have extended and continued, not from the date of the election by him, but from February 7, the date which terminated the period for which premiums had been paid. This being true, the insured necessarily had been protected by insurance at the full face value of the policy during this period from February 7 to the date of his election. If the insured had not been so protected, the insurance company, by accepting his money for extended insurance from the date when the policy had lapsed on February 7, would have given him nothing for his money. Had there been no loan on the policy, it would seem, therefore, that during this period from February 7 to the date of the death of the insured, even though no election had been made by him to purchase with the cash value of the policy extended insurance, the policy was in existence for its full value.

But it is replied that, during this thirty-days period from February 7 to March 9 (during which, the defendant claims, the policy had lapsed for nonpayment of the premium within the grace period), if the insured had undertaken to avail himself of his right under the policy to purchase with the cash value continuing 'or paid-up insurance, he could not have done so, because, the loan having absorbed the entire cash value in the policy, there was no cash value available for the purchase of continuing or paid-up insurance. This may be true, but it does not necessarily follow therefrom that, if a policy without a loan upon it and with a cash value available to purchase continuing or paid-up insurance possesses some life as a subsisting contract, a policy, with a loan upon it equal to' and absorbing the entire cash value of the policy and with no cash value available to purchase insurance, was absolutely dead and possessed no life whatever.

Besides, the policy contains a provision that a “loan may be repaid at any time.” Construing this provision most favorably to the insured, as must be done, the insured certainly would have a right to repay the loan “at any time” when its repayment would operate to give him an advantage under the policy. Certainly its repayment at any time, within the thirty-days' period from February 7 to March 9, after the policy had on February 7 lapsed for, nonpayment of the premium, and during which thirty-days period the insured could, with the cash surrender value, if it is not offset by a loan on the policy, purchase continuing or paid-up insurance, would give the insured a distinct advantage over the condition in which he finds himself with the loan unpaid. With the loan paid, he can, under the terms of the policy, with the cash surrender value, purchase continuing insurance for a period at the full face value of the policy. With the loan, which is equal to the cash surrender value, unpaid, he could purchase no insurance whatsoever.

If the policy, without a loan upon it, is, during this period, not dead, it follows'that if the policy, by reason of the existence of a loan upon it equal to the cash value of the policy, becomes dead, the death of the policy is due to the existence of the unpaid loan. The policy expressly provides that a failure to pay any loan upon the policy will not void the policy, where the “total indebtedness to the company shall equal or exceed the cash surrender value,” as is the case here, until one month after notice to the insured. It does not appear from the evidence that any such notice was ever given to the insured. The policy, therefore, can not be treated as void for nonpayment of the indebtedness represented by the loan.

During the thirty-days period from February 7 to March 9, after the policy had on February 7 “lapsed” for nonpayment of premium, the insured, without exercising the right' to elect to apply the cash value of the policy to repayment of the loan, as he had a right to do, had a live and subsisting policy of insurance. He had a policy under the terms of which he could, by making an election as provided for therein, continue the policy in force at its full face value for a limited period, but beyond the thirty-days period expiring March 9, or, by a failure to elect within this thirty-days period, a policy which would. “be continued automatically,” at a reduced amount, as paid-up insurance, until his death. Since the insured on the date of his death, the 13th day of February, within this thirty-days period during which under the terms of the policy he could elect to continue his insurance, had a valid and subsisting contract of insurance, which, by electing to pay the loan, he could have continued in force at its face value, the policy, at the time of his death, without his having made this election, should necessarily be valid in some amount. If by election, before he died, he could have continued the policy in force at its full face value, the policy, which at the date of his death constituted a valid and subsisting contract of insurance, should, construing it most favorably to the insured, be considered as in force at the time of his death for its full face value, subject to any indebtedness lawfully chargeable against it, as the loan and the past-due premium.

The plaintiff, as a matter of law, was entitled to recover under the policy, and the trial judge, in passing upon both questions of law and fact, erred in finding for the defendant.

Judgment affirmed.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    18436.
    KIRKLAND v. CONSTITUTION PUBLISHING CO.
    Decided September 28, 1928.

      8t. Clair Gibbs, Betty B. Cobb, for plaintiff.

      Dorsey, Howell & Heyman, Marie Bolding, for defendant.
   Stephens, J.

Mrs. Grace Kirkland brought suit against the Constitution Publishing Company, alleging that the defendant, on August 4, 1926, falsely and maliciously, of and concerning the plaintiff, composed, published, and printed in the Atlanta Constitution, a newspaper owned and controlled by the defendant, “a false, scandalous, malicious and defamatory libel” in the following-language: “Beading from a report by State Auditor Sam. J. Slate, Talmadge pointed out that at one time Dr. Grace Kirkland (meaning this plaintiff), Fulton county oil inspector, was due the State treasurer in 1924 for 1923 inspection fees, $6,285.30, while at that time she was only under a $3,000 bond. This report does not show that this money has yet been paid, according to Talmadge.” The plaintiff alleged also that by virtue of the sale to citizens of Atlanta and elsewhere of many copies of the defendant’s newspaper containing the alleged libelous publication, and by reason of the large circulation of the paper, she was damaged in her good name, reputation, etc., and her neighbors and citizens were thereby caused to suspect and believe that she, by reason of the acts charged in the publication, was guilty of the crime of embezzlement. The plaintiff alleged also that the defendant, in the publication, charged her with the commission of the crime of embezzlement, and that this charge was false, to her damage, as alleged, in the sum of $50,000. The petition was dismissed on demurrer, and the plaintiff excepted.

The defendant insists that the alleged libelous language does not charge the plaintiff with the commission of any crime, and particularly, since it does not charge a refusal or failure to pay by the plaintiff after demand made upon her, does not charge the crime of embezzlement. The defendant insists also that the language does not charge any moral turpitude to the plaintiff, but charges only a failure by the plaintiff to pay over, during a certain period of time, money collected, which, the defendant insists, does not charge a felonious withholding of the money, and therefore does not charge a crime.

Whether the alleged libelous language imputes to the plaintiff the commission of the crime of embezzlement, or any other crime, it is unnecessary to here decide, since we agree that the language contains a charge which tends to injure the reputation of the plaintiff and to expose her to public hatred and contempt, and is libelous.

Section 4428 of the Civil Code defines a libel as: “false and malicious defamation of another, expressed in print or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule.”

Section 1800 of the Political Code provides that “ Inspectors of oil shall remit to the Treasurer each month, at the time of making their monthly statements, all fees received by them, except that they may retain as compensation for their services the sum of ten dollars per car for oil inspected,” etc. The alleged libelous language is reasonably susceptible to the construction that it charges the plaintiff, as a State official, with having, during the year 1923, collected inspection fees, belonging to the State, in the sum of $6,285.30, and that these fees were not paid by her to the State Treasurer when due, and were not paid when the report was made. This charges a violation of a duty placed by law upon the plaintiff as an oil inspector of this State, and charges that the plaintiff, as a public official, by violating the law, .became guilty of misconduct in public office. This charge tended to injure the plaintiff in her reputation, and expose her to public hatred and contempt.

The petition alleges that the language in the defendant’s newspaper, the Atlanta Constitution, was false and malicious and the petitioner was damaged thereby in her good name, reputation, etc. The alleged libelous language is actionable per se, and proof of special damage is not essential. Civil Code (1910), § 4433; Atlanta Journal Co. v. Pearce, 145 Ga. 694 (89 S. E. 759).

The fact that the defendant’s newspaper published the alleged libelous charge as a statement made by another person constitutes no justification. As is stated in the opinion of this court, in Brown v. McCann, 36 Ga. App. 812 (138 S. E. 247), “The fact that the defendant merely repeated the report [which the defendant in repeating attributed to the person making it] is no defense, since it is the law that talebearers are as bad as talemakers,’ ” quoting from Judge Jenkins in Ivester v. Coe, 33 Ga. App. 620 (6) (127 S. E. 790). See also 36 Corpus Juris, 1235, where it is stated that “It is no justification that the defendant received his information from a third person, and that the defendant at the time of his publication disclosed the name of the author.” See also Cox v. Strickland, 101 Ga. 482, 493 (28 S. E. 655).

Whether the charge was privileged, as being a republication of a privileged government report, is not a question presented now for determination. The question here for determination is as to the sufficiency of the petition to withstand a demurrer. There is no allegation in the petition, nor does it appear from the petition, that any “report” containing the charge complained of was ever made, or if made, that the charge referred to was taken from the report, or that the report, if made, was made by a State official in the line of his duty as such, and was therefore privileged. The petition alleges merely that the defendant said that Mr. Talmadge read from a report made by the State Auditor, Sam. J. Slate. The petition in alleging the publication of the language complained of and that the language was a false and a malicious libel upon the petitioner, alleges only the malicious utterance and publication of the language and its falsity, and does not admit as true any of the statements therein.

The publication, if libelous, is not privileged under section 4436 of the Civil Code (1910), as being a comment upon the acts of a public official. Such privilege does not give the right to make libelous statements. Nor is it privileged under section 4432 of the Civil Code, as a newspaper publication. The freedom and liberty of the press do not give a publisher the right to publish libelous statements. Lowe v. News Publishing Co., 9 Ga. App. 103 (5) (70 S. E. 607).

The petition set out a cause of action, and it was error to sustain the general demurrer.

Judgment reversed.

Bell, J., concurs. Jenkins, P. J., dissents.

Jenkins, P. J.,

dissenting. The alleged defamatory publication consisted in the printing by the defendant of a statement by Talmadge to the effect that a report of State Auditor Slate showed that the plaintiff, a State oil inspector, was due the State, in 1924, the sum of $6,285.30 of 1923 inspection fees, while under bond in the amount of only $3,000, and that the report of the State auditor failed to show that this money had yet been turned over. The plaintiff’s petition sets forth that such publication charged her with the crime of embezzlement, and that the charge was false. I am of the opinion that the publication does not set forth the crime of embezzlement. It does not indicate that the report charges the plaintiff with having misappropriated any sum whatever. The language of the publication with reference to the insufficiency of the bond can, at most, be taken only as a criticism of the management of the department in which the plaintiff was employed. Nor does the additional statement that “this [the State auditor’s] report does not show that this money has yet been paid” charge embezzlement or misappropriation. Although the publication was made on August 5, 1926, and was with reference to money collected some three years previously, the mere negative statement that the report referred to failed to show that the money had been turned over does not amount to a charge that it had been actually withheld by the plaintiff after it had become her duty to account for the same, in the absence of some statement as to the time when the report was made. However, assuming that the publication was such as might subject the plaintiff to “public hatred, contempt, or ridicule” (Civil Code of 1910, § 4428), as I am inclined to think should be done in view of the statute relative to the duty of oil inspectors to pay over monthly to the State treasurer fees collected by them, and, therefore, if unprivileged, constituted a libel per se, the question is whether the publication as made was actionable. Bona fide comments upon public men with reference to acts done in their public capacity are privileged. Civil Code (1910), §§ 4436(6); Michie’s Annotated Code (1926), § 2158 (52). If the act of the defendant purported to consist, and did consist, in merely publishing the substance of an official report of the State auditor with reference to the public acts of the plaintiff, done in her official capacity, no cause of action in favor of the plaintiff would arise. The fact that the substance of'the report was printed from hearsay, — that is, as stated by another person, — would not operate to change the rule; the only risk incurred or responsibility assumed by the defendant being that in thus publishing the substance of such official report from hearsay, it vouched for the correctness of the substance of the report as quoted by defendant’s informant. While the plaintiff denies that she was guilty of embezzlement, as she alleges was charged, and thus might be taken to have inferentially denied the truth of the substance of the report, she does not allege or intimate that the report was not made, or that the defendant’s statement of the same was not substantially correct. It is the duty of a plaintiff to make out bis case by the pleadings, and it is a familiar rule that pleadings are to be construed against the pleader. The natural intendment of the petition is to deny only the substance of the report, and not that the report was made as quoted. In my opinion the trial judge did not err in dismissing the petition on demurrer, as failing to set forth a cause of action.


author: Stephens, J.

text:
    18442.
    Seaboard Air-Line Railway Co. v. Sarman.
   Stephens, J.

1. The fact that an automobile which, while crossing a railroad-track at a public crossing was run into by an approaching train, would, if it had not stalled upon the track, have passed over the track in safety, does not, where there is evidence that the train was running at a rate of speed that was in fact negligent at the time and place and under the circumstances, and that the crossing whistle was not blown as required by law, establish as a fact that the stalling of the automobile, and not some act of negligence on the part of the railroad company, was the proximate cause of the injury. It is a question of fact whether the injury was caused by a negligent act of the driver of the automobile or such an act on the part of servants of the railroad company in operating the train.

2. Where upon a trial there is evidence that a railroad-train, when approaching a public crossing, was being operated at a rate of speed that was in fact negligent at the time and place and under the circumstances, and that the crossing whistle was not blown as required by law, it can not be held as a matter of law that a person who was familiar with the crossing but whose view of the approaching train was obstructed by a building near the track, by driving an automobile upon the railroad-track at the crossing in front of an approaching train without making some effort to detect the approach of the train, failed to exercise that degree of care legally required of him under the circumstances, and was guilty of negligence which, unmixed with any negligence of the railroad company, proximately caused a collision between the train and the automobile.

3. Whether the decision of the Supreme Court of the United States in the case of Baltimore & Ohio Railroad Co. v. Goodman, 275 U. S. 66 decided (48 Sup. Ct. 24, 72 L. ed. 22), which holds that a plaintiff who, being familiar with a railroad-crossing, but whose view of the approaching train is obstructed, drives his automobile in the daytime upon the crossing, without taking precautionary measures against the approach of the train, — -as stopping and looking,— is thereby guilty of negligence barring a recovery for any injury to himself inflicted as a result of collision between his automobile and the train, is applicable to a case where an occupant of the automobile who was injured, and not the driver, is the - plaintiff, the rule there announced was applied where there was no recognition of any negligent act of the railroad company, and no act negligent per se, as a failure to herald the train’s approach by the. sounding of an alarm required by law. It is stated in the opinion in that case that “nothing is suggested by the evidence to relieve Goodman from responsibility for his own death.” Had there appeared in that ease evidence that the railroad company was negligent per se in not giving a warning signal heralding the train’s approach as required by law, a state of facts would have been presented which would have taken the case without the ratio decidendi of that decision. The rule announced in the Goodman case has reference to the law as it obtains in the State of Ohio, and it is well recognized that the decisions of the Federal courts, interpreting the laws of the States and not involving Federal questions, are not binding as authority upon the State courts. Under the Georgia law it is a question of fact whether a person intending to cross a railroad-track at a public crossing is negligent in failing to take precautionary measures, such as stopping, looking and listening, to detect the approach of a train, and in assuming that the agents of the railroad company, in operating a train approaching the crossing, will comply with the law and sound the crossing alarm. If the railroad fails in this respect it is also a question of fact whether this failure or the conduct of the other person in going upon the track without taking such precautionary measures is a proximate cause of the resulting injuries.

4. Where a minor child, while in the custody and control of another person without the knowledge or consent of its father, is injured as a result of an act of the person having the custody and control of the child, the father is not responsible for any negligence of that person resulting in an injury to the child, where this negligence is not otherwise imputable to the child. In a suit by the father against a person other than the one having the custody and control of the child, to recover for the loss of the child’s services sustained by thfe father by reason of the death of the child, which resulted from a collision between a railroad-train of the defendant and an automobile in which the child was riding while the automobile was being driven by the person who at the time, without the consent of the plaintiff, had the custody and the control of the child, the defendant, in defense to the suit, notwithstanding the plaintiff is not chargeable with negligence of the driver of the automobile, may nevertheless rely upon the negligence of the driver of the automobile as being the sole proximate cause of the death of the child, and may also rely upon the negligence of the child, which is attributable to the father, as either proximately causing the injury or as a factor reducing the amount of recovery.

5. Where the mother, in whose custody the father had left his minor child, permitted the child, during the father’s absence and without the consent of the father, to ride in an automobile with another person, who, to the mother’s knowledge, was driving the automobile, this is not sufficient to establish consent by the father to the child’s being entrusted to the custody and control of the driver. This is true notwithstanding the father had confidence in the ability of the driver to carefully and diligently operate the automobile, and would ordinarily have entrusted his children to the driver’s care and protection, though afterwards he ' stated that he did not know whether he would have done so on this ocasgion, but that while away from hojnc he “left control of the children entirely” to Ms wife and “left her in charge of the commissary and house,” and all she did was with his “entire approval and permission.”

6. In a suit by a father to recover for loss of services resulting from the death of his minor child, where the evidence authorized the inference that the child, while riding in an automobile as a guest of another person for whose negligence the plaintiff was not responsible, was killed by a 'collision between the automobile and an approaching train of the defendant at a railroad crossing, and that both the driver of the automobile and the agents of the defendant railroad company in operating the train were negligent, a charge to the jury, which' was literally in the language of headnote 1 of the decision in the ease of Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109), which announces the rule whereby an original wrongdoer is relieved of liability where a subsequent intervening act, for which he is not responsible and the happening of which he can not reasonably foresee, causes the injury, states a correct proposition of law, and is not subject to the objection made by the defendant that it fixes responsibility for the injury upon the defendant without respect to when the original wrongdoer might have anticipated the intervening act, and without respect to the conditions or circumstances surrounding the intervening act.

7. Where the court charges that if the negligence of the person injured, notwithstanding the existence of negligence on the part of the person inflicting the injury, is nevertheless the proximate cause of the injury, there can be no recovery, it is not error as confusing- the two distinct propositions of law contained in the Civil Code (1910), §§ 2781, 4426, to charge immediately thereafter and separately therefrom that in case of a failure by the person injured to exercise ordinary care to avoid the consequences of the negligence of the other person, there can be no recovery. Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105). The two propositions, though charged together consecutively, were not charged in immediate connection with each other. They were stated as separate and distinct propositions of law, and the charge was not calculated to confuse the jury to the injury of the defendant. See, in this connection, Macon, Dublin & Savannah Railroad Co. v. Moore, 99 Ga. 229 (25 S. E. 460); Savannah, Florida & Western Railway Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239); Macon & Birmingham Railway Co. v. Anderson, 121 Ga. 666 (49 S. E. 791); Americus &c. R. Co. v. Luckie, supra.

8. Where the court clearly instructed the jury as to the right of the plaintiff, the child’s father, to recover where the child negligently failed to guard against the consequences of the defendant’s negligence and where the child’s negligence was equal to or greater than the defendant’s negligence, none of the excerpts from the charge was subject to the exception that it was error prejudicial to the defendant as eliminating from consideration by the jury any negligence of the child as contributing to the injury.

9. Applying the above rulings, the court nowhere erred in charging as excepted to by the defendant, and nowhere erred in refusing to give certain instructions requested by the defendant.

10. The testimony of a witness that he did not hear the whistle blow, but that if it had blown he would have heard it, was positive testimony as. to a circumstance from which the jury could have inferred that the whistle did not blow at the time as to which he testified. The evidence was properly admitted.

Decided September 28, 1928.

11. The value to a parent of the services of a minor child is not determinable solely from evidence as to the amount of money the child earns or is capable of earning during its minority. The value of a child’s services may be determined from all the evidence, including evidence as to the age and precocity of the child, its earning capacity, and the services rendered by it, the circumstances of the family and the living conditions, and “from experience and knowledge of human affairs on the part of the jury.” Savannah Electric Co, v. Dixon, 18 Ga. App. 314 (3) (89 S. E. 373). Where the court in the charge virtually so instructed the jury, the charge was not subject to exception as being error in that it failed to instruct the jury as to any rule by which the amount of damages could be calculated or by which the value of the services could be reduced to a present cash value. See also James v. Central of Georgia Railway Co., 138 Ga. 415 (75 S. E. 431, 41 L. R. A. (N. S.) 795, Ann. Cas. 1913D, 468); Standard Oil Co. v. Reagan, 15 Ga. App. 571, 599 (84 S. E. 69); Central of Georgia Railway Co. v. James, 143 Ga. 753 (3) (85 S. E. 920); Louisville & Nashville Railroad Co. v. Stallings, 35 Ga. App. 376 (133 S. E. 288).

12. The fact that there is no evidence as to good health or expectancy in life of either the plaintiff at the time of the trial or of the child at the time of death does not necessarily render the evidence insufficient to support the amount of the verdict. In the absence of evidence to the contrary, presumably the plaintiff and the child were in good health, and the jury could infer, from the apparent age of the plaintiff, who appeared before them as a witness, and from the age of the child, which was in evidence, that each had a life expectancy, from the date of the injury, of eight years, during which the child, had it lived, would have arrived at majority. Watson v. Tindal, 24 Ga. 494 (6) (71 Am. D. 142); Southern Railway Co. v. Petway, 7 Ga. App. 659 (2) (67 S. E. 886); City of Moultrie v. Cook, 11 Ga. App. 649 (75 S. E. 991); 17 C. J. 1166.

13. Since damage for loss by a parent of the services of his minor child may be determined from a consideration of all the evidence, including evidence as to the age and the precocity of the child, its earning capacity and the services rendered by it, the circumstances of the family and the living conditions, and “from experience and knowledge off human affairs on the part of the jury,” etc., it is reasonably inferable from the evidence in this ease that the plaintiff’s damage as a result of the loss of the services of his minor child, who at the time of death was 13 years of age, reasonably amounted to $5,000, the amount of the verdict. One element for consideration in arriving at the size of the verdict is the fact that it was found five years after the date of the injury, and the plaintiff is entitled to a sum representing interest during that period on the amount of the sum representing his damage.

14. The evidence warranted the inference that the death of the child was proximately caused by the negligence of the defendant railroad company.

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

Judgment affirmed.

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

Conyers & Gowen, W. W. Dykes, for plaintiff in error.

Reuben R. and Lowry Arnold, Burweül A. Atkinson, Bouhan & Atkinson, E. C. Hill, B. P. Gambrell, contra.


author: Stephens. J.

text:
    18555.
    Schlosburg v. Tanenbaum.
   Stephens. J.

1. Nothing contained in §§ 63, 68 of the uniform negotiable instruments act, or elsewhere in the act, in force in the State of South Carolina and applicable to this ease, precludes one who has executed a promissory note, ostensibly as the maker, from showing that he in fact, when executing the note, contracted as a surety only. Civil Code of South Carolina (1922), §§ 3652 et seq. Since § 196 of the act (Civil Code of South Carolina, § 3847) provides that “in any ease not provided for in this article [meaning this act] the rules of the law merchant shall govern,” it must be held by this court, it not appearing otherwise, that the law merchant, which .is the common law, regulating negotiable instruments as applied by the courts of this State, obtains in the State of South Carolina. Merchants & Farmers Savings Bank v. Katterjohn, 137 Ky. 427 (125 S. W. 1071, Ann. Cas. 1912A, 439); Brannan on the Negotiable Instruments Law (3d ed.) 416.

2. Where one executed a promissory note ostensibly as the maker, but in fact contracted as a surety only, which fact was known to another person, who at the same time signed the note both ostensibly and in fact as a surety, the former may, in a suit against him by the latter, who has paid the note to the payee, set up as a defense that, notwithstanding the positions of the signatures of the plaintiff and the defendant on the note, “it was understood and agreed by all parties thereto that as among themselves” both the plaintiff and the defendant were accommodation indorsers for another as the real maker, whose name appeared upon the note as an indorser. This is the common-law rule as construed by the courts of Georgia.

3. Where the plaintiff sues for the full amount of the note, alleging that he as indorser has paid the note in full to the payee, and alleging that the defendant as the maker of the note is liable to the plaintiff in the full amount sued for, as provided under § 121 of the uniform negotiable instruments law in force in the State of South Carolina where the contract was made (Civil Code of South Carolina (1922), § 3772), the defendant’s plea, admitting liability to the plaintiff for one half of the amoimt sued for, and alleging that the defendant, although ostensibly the maker of the note, was in fact a surety by virtue of a parol agreement and understanding between him and the plaintiff and the payee of the note, but which does not plead any statute or other law of the State of South Carolina, assuming that it admits the negotiable instruments law as applicable, sets up a good defense under the common law, unmodified and unaffected by the negotiable instruments law.

Decided September 28, 1928.

Wright & Jackson, L. A. Wiltkowsky, M. L. Smith, for plaintiff.

D. G. Fogarty, Lee, Gongdon & Fulcher, for defendant.

4. The court did not err in overruling the plaintiff’s motion to strike the defendant’s plea, and the verdict afterwards found for the plaintiff for one half of the amount sued for, liability for which the defendant admitted, was not subject to the exception made by the plaintiff that it was not a legal termination of the case. 3 R. C. L. 1138; 8 C. J. 291.

Judgment affirmed.

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


author: Luke, J.

text:
    18962.
    CRAIG v. THE STATE.
    Decided October 2, 1928.

      Aldine & Hewitt W. Chambers, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeCraw, John H. Hudson, contra.
   Luke, J.

R. E. Craig was indicted for accepting a bribe of $8 from Jack Smith, “to influence him to refrain from arresting the said Smith” for violating the prohibition law. The motion for a new trial contains only the general grounds. Smith testified positively that Craig took a gallon of whisky from him, and subsequently released him upon the payment by him to Craig of $8. When both Craig and Smith were brought before the chief of police and Smith was asked to describe the money he paid Craig, Smith described it as being a five-dollar bill and three one-dollar bills, one of the latter being stained, apparently with tobacco juice. Then, when the chief of police ordered Craig to be searched, Craig took from his pocket and laid on the table some money, including a stained dollar bill. Immediately upon seeing this bill Smith said, “This is the money I gave him,” The defendant accounted for the possession of the bill by proving where he got such a bill, and stated that the negro, Smith, must have seen it when he, Craig, pulled some money out of his pocket in getting a match Smith had asked him for. The defendant denied positively that he got any whisky from Smith; stated that he saw Smith make a signal to a big yellow negro, who immediately ran, dropping, as he escaped, the liquor which Smith said was taken from him; that as he took Smith in his car and drove towards the station-house, Smith promised to give the numbers of several houses where whisky was kept, if the officer would meet him in the afternoon; that when he met Smith at the appointed time (the occasion when Smith claimed he gave the officer $8), Smith said he was being watched, but that he would get the information promised in a few days; that Smith never kept his promise; that he never gave the negro a penny; and that Smith was enabled to “frame up” on him because his partner was oil duty at the time. There was evidence that Smith had testified in the recorder’s court that he got the money out of which he paid Craig the $8 from the Atlanta Paper Company, when as a matter of fact he had done no such thing. The negro testified at the trial that he got the money in question from the Community Club. Testiinony was also introduced from which it appeared that Smith had previously made erroneous statements as to when he was employed by the Atlanta Paper Company.

It being the exclusive province of the jury to decide whether or not a witness has been impeached, this court can not say that the jury reached an erroneous conclusion in this case in finding that the State’s witness had not been impeached. Powell v. State, 101 Ga. 9 (5) (29 S. E. 309, 65 Am. St. R. 277).

There is evidence to support the verdict; and since the motion for a new trial contains only the usual general grounds, the judgment can not be reversed.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


text:
    19039.
    BANK OF TALLAPOOSA v. PATTERSON.

      Decided October 2, 1928.

      JE. 8. Griffith, Walter-Matthews, for plaintiff.

      Lloyd Thomas, for defendant.
   Luke, J.

On December 27, 1919, J. T. Patterson gave his promissory note for $575 to A. P. and M. S. Walton for certain land. The Waltons indorsed and “traded” this note for value to Farmers and Merchants Bank. In February, 1921, said bank failed, and its assets, including this note, were taken over by the Bank of Tallapoosa. On April 14, 1923, the note was renewed by the bank’s taking a second note, payable to Bank of Tallapoosa, due Decembef 1, 1923, and signed “J. T. Patterson, M. S. Walton, A. P. Walton.” On the face of this note the following was written: “Land note held as collateral.” On February 8, 1924, Patterson signed the note sued on as principal. On this note, as on the second note, were the words: “Land note held as collateral.”

In his answer to the suit on said note of February 8, 1924, the defendant pleaded as follows: “It is admitted that on the day named defendant signed his name to the note sued on, but defendant denies any liability thereon, for the reason that his name was so signed upon the distinct agreement and understanding between defendant and W. W. Heaton, the president of said Bank of Tallapoosa, who represented said bank in the matter, that the note was to be signed, and would be signed, by A. P. Walton and M. S. Walton, as makers thereof, and that the signing of said note by defendant would not create a legal liability on his part until the note should be signed by said A. P. Walton and M. S. Walton. But for such agreement defendant would not have signed said note, and as said note was never signed by said A. P. Walton and M. S. Walton, defendant says that he is not liable thereon.”

The jury rendered a verdict for Patterson, and the Bank of Tallapoosa excepts to the judgment overruling its motion for a new trial, based upon the usual general grounds and upon two special grounds complaining respectively of the admission of evidence and the charge of the court.

J. T. Patterson testified: “Now this was the first note that was given for the land, and then this note was renewed, and I took that up by giving the note with the Walton Boys’ names on it. Then I gave the note sued on. It was to .be a renewal of that if they would sign it.” Patterson swore also: “Mr. Heaton (president of the bank) kept after me about making him a note, and said that he was being criticised for carrying old notes. . . He talked to me several times about it. A. P. Walton and M. S. Walton were to sign also. Why it was I signed before they were present and signed it too ? He said he would have them sign it before it would be a note. . . I relied on what Mr. Heaton told me. . . But for that I would not have signed it. I believed his statement, and acted on it.”

W. W. Heaton, president of the Bank of Tallapoosa, testified substantially as follows: Patterson could not pay anything on his original note, and renewed it by giving note of April 14, 1923, “signed by him as principal, and A. P. and M. S. Walton as securities.” Nothing was paid on this renewal note, and witness got Patterson to renew it by giving note sued on. Witness never told Patterson that this note was not to be binding upon him until the Waltons signed it. Heaton further swore: “I told him I would get them to sign it if they would. . . I wrote them. . . They never did sign the note. They signed the note they did sign (the second note) as security. That was given for the original note signed by Mr. Patterson. They had indorsed it when they discounted it at the Farmers and Merchants Bank. There was no consideration given the bank, or any body else, by which they were to sign. They were just to sign as they had before, was my understanding.” M. S. Walton swore: “We traded it (the note payable to the Waltons) to the Farmers and Merchants Bank. Then after that we did sign another one. I suppose this is my signature. . . We signed as indorser, indorser supposed to be. We indorsed the one that the bank first got. I might have indorsed it as principal. . . We did not owe the bank any tiling more than these security notes. We told him (Patterson) to tell Mr. Heaton we wasn’t signing nothing. . . I got the money on the original note. Mr. Patterson didn’t get any. . . When we put up the note we discounted it.”

If the evidence sustains the plea that the agreement between Patterson and the bank was that the note was not to become a binding contract until the Waltons signed it “as makers thereof,” the defense would be made out. “It is permissible to show that a promissory note, signed by one or more persons and apparently complete, is not in fact complete, by reason of the fact that it has never been delivered from one party to the other as a finally completed contract, but that it was simply left in the possession of the payee until some additional person should sign it before it should become a completed contract.” Bray v. Comer Mercantile Co., 32 Ga. App. 746 (124 S. E. 817); Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590); Pidcock v. Crouch, 7 Ga. App. 299 (66 S. E. 971); Hansford v. Freeman, 99 Ga. 379 (27 S. E. 706). But the foregoing rule does hot apply where “the person sued is liable as the principal debtor and would have no right to contribution or to a recovery over against the persons not signing.”' 8 Corpus Juris, 208, sec. 336. The evidence strongly presents the theory that the agreement between the bank and Patterson was that the Waltons were to sign as accommodation indorsers, or mere sureties, and not as principals. Therefore the following excerpt from the charge of the court is not the law of the case, ignores and denies the main contention of the plaintiff in error, and is harmful error: “The fact that previous notes existed between Patterson and the bank, that he owed the bank money, or that he and the Waltons owed it money, or that he owed it and the Waltons were security, would not prevent his right to make a contract with Heaton that this note would not become binding until they signed it. He would have a right to do that. In fact, the freedom of contract allows a man, although he owes a bank money, to say in the execution of a note that this note is not in renewal of the other until it is signed by so and so, and the parties may or may not be security, or may not be interested in the matter. They may be strangers to him. A man giving a note to a bank has the right to say who. will go on it with him, and may stipulate that strangers, or anybody else, may sign, and if that is the contract, it is binding on the bank. In other words, in a contract the minds of the parties must meet as to its exact terms. They must be agreed about it, and there is no contract made until the parties have agreed; and if the parties come together and start the execution of a note, and it is agreed that others shall sign it before it becomes binding, their minds have not agreed, and it is not a binding contract. This is the whole law of the case.”

The objection to, and motion to rule out, the evidence of Patterson that the Waltons were to sign the note with him before it became a binding contract were properly overruled. The general grounds of the motion for a new trial are not passed on, and the judgment is reversed because of the court’s charge.

Judgment reversed.

Broyles, G. J., and Bloodworih, J., concur.


author: Broxles, C. J.

text:
    19041.
    White Provision Co. v. City of Atlanta.
    Decided October 2, 1928.

      Howell, Heyman & Bolding, for plaintiff in error.

      James L. Mayson, Gourlland S. Winn, J. G. Savage, contra.
   Broxles, C. J.

1. Where a fi. fa. based on a sewer assessment is levied upon abutting property, “the fact that the abutting property, in its present condition, may not be specially benefited by construction of the sewer would not render the assessment illegal.” Neal v. Decatur, 142 Ga. 205 (2) (82 S. E. 546), and cit.

2. Where the construction of a sewerage system by a city is authorized, “the legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confided to its discretion. It may err, but the courts can not review its discretion.” French v. Barber Asphalt Co., 181 U. S. 324 (21 Sup. Ct. 625, 45 L. ed. 879); Ga. R. Co. v. Decatur, 137 Ga. 537, 542 (73 S. E. 830, 40 L. R. A. (N. S.) 935).

3. The instant case falls within the general rules as enunciated in the preceding paragraphs; and the court did not err in sustaining the motion to dismiss the affidavit of illegality.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., disqualified.


text:
    19043.
    PHILLIPS v. THE STATE.

      Decided October 2, 1928.

      B. F. Walker, E. P. & J. Gecil Davis, for plaintiff in error.

      M. L. Felts, solicitor-general, J. B. Burnside, contra.
   Luke, J.

Ed Phillips was indicted for murder and was convicted of voluntary manslaughter. The motion for a new trial, based upon the general grounds and upon five special grounds, was overruled, and the defendant excepted.

The following appears from the record: The defendant and M. A. Newsome were half-brothers and neighbors, living about a mile apart. Newsome had only one arm. On a Saturday night in October, 1927, Newsome, accompanied by his son, Gus, carried the defendant, his wife, and his little boy, in Newsome’s automobile, to see Dr. Pilcher, at Wrens, Ga., in order that the defendant’s boy might be treated. They arrived at the doctor’s at about nine o’clock •at night, remained about an hour, and then drove back to New-some’s home, where young Newsome left the party. Newsome then drove the defendant and the defendant’s wife and boy home. At about sunup the next morning Newsome was shot in his left side with a pistol. He was taken to Augusta and operated upon. He rallied slightly after the operation, and died Sunday night about fifteen hours after being shot.

Special ground 2, complaining that a witness was allowed to testify that he saw something outside of the defendant’s gate that was red looking,, but which the witness could not say was blood, can not be considered. In the first place, counsel’s objection to the evidence was solely in these words: “We move to rule that out;” no reason being given why the evidence should be ruled out. “All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence.” Andrews v. State, 118 Ga. 1 (43 S. E. 852). The principle announced in this decision controls the question under consideration. It is too well established to need further citation of authorities. Furthermore, the court ruled as follows in regard to said evidence: “Unless it is connected up further, it would be inadmissible.” It is said in this ground that the evidence was not connected up, was not ruled out, and was harmful to the defendant for stated reasons. If it be conceded that, under the court’s statement, the evidence was admitted conditionally, the following rule of law is applicable: “Where the court, over objection, admits certain evidence, with the statement that the objection will be passed upon at a later stage of the trial, it is incumbent upon the objecting party, if the evidence be inadmissible, to direct the court’s attention thereto either before or at the close of the testimony, and to move to exclude it; and upon his failure to do this lie will be held to have waived his objection.” Brooks v. Ritch, 31 Ga. App. 539 (121 S. E. 136), quoting Cawthon v. State, 119 Ga. 395 (46 S. E. 897). Since it does not appear that subsequently to the court’s ruling his attention was directed to such evidence, or that any motion was made to rule it out, the defendant must be held to have waived his objection, even if this court were not precluded from considering this ground for the reason first stated.

It is insisted in special ground 3 that the court erred in refusing to allow counsel for the defendant to make a preliminary examination of the witness J. W. Stapleton as to the admissibility of the alleged dying declarations of Newsome before State’s counsel finished examining the witness, and before the substance of the declarations was elicited. The court’s ruling was as follows: “I don’t know of any rule that would allow the defendant’s counsel to take the witness away from State’s counsel. I will have to overrule the objection at this stage. I will give you a right to interrogate the witness.”

In view of the fact that when it is sought to prove dying declarations the court’s duty is to determine first from a preliminary examination whether or not such declarations should be admitted to the jury, it would appear to be the better practice for the court to permit both the State’s attorney and the defendant’s attorney to examine the witness by’ whom it is sought to prove the declarations, upon the question whether or. not they are prima facie admissible, before the substance of the declarations is disclosed to the jury. Indeed, it might be better to allow the jury to retire during the preliminary examination, when the examination could be conducted with less formality, and with no likelihood of injury to either party. It was held in Duren v. State, 158 Ga. 735 (2) (supra), that “The court must judge of the preliminary evidence, in the first instance, and deeming it prima facie sufficient, should admit the declarations to the jury, instructing the jury afterwards to pass finally for themselves on the question whether or not the declarations were conscious utterances in the apprehension and immediate prospect of death.” The procedure indicated above appears to be in line with that approved by the Supreme Court in Campbell v. State, 11 Ga. 353, 376.

However, the court’s ruling was not reversible error. During his examination the witness Stapleton testified that he saw the deceased an hour and a half or two hours after he was shot; that Newsome had been shot “somewhere about the last rib on the left side;” that he was “in pretty bad condition,” and said several times, “I am going to die, I can't live;” that Newsome's mind was clear when he made the statements attributed to him; that he saw Newsome next day and he was dead; that the witness helped the doctor with his examination of the wound; that when he first saw Newsome he was sitting in a chair, and couldn't lie down, and that when he was put on the bed he said, “I can't live, it’s killing me.” We think that this evidence was sufficient to warrant the court in submitting the statements of the deceased to the jury. Furthermore, the evidence of Dr. Pilcher, subsequently introduced, fully-warranted the conclusion that Newsome was in a dying condition when he made the declarations under consideration. Under these circumstances we are quite certain that the refusal of the court to allow counsel for the defendant to examine the witness before the solicitor had concluded his examination worked no injury to the defendant. The substance of the declarations of Newsome, as testified to by Stapleton, appears in these words: “He said Ed shot him, and, ‘I had not done anything to him whatever. I was there trying to protect his -wife and children and keep him from killing them.' ” Note, in this connection, the following ruling, made in the early case of Dumas v. State, 62 Ga. 58, añd quoted approvingly in Duren v. State, supra: “That declarations offered in evidence as dying declarations were made under the belief that the wound was mortal and death impending may be inferred from the nature of the wound, and other circumstances, though nothing direct was said respecting death or danger.”

Special ground 4 of the motion for a new trial complains of the court's refusal to rule out the testimony of the witness Sam Jones as to declarations made by Newsome, for the reason that at the time they were made it did not appear that Newsome was in articulo mortis, or that he believed that he was going to die. Jones testified that Newsome, on his way home, at about seven o'clock in the morning on which he was shot, drove his automobile within about thirty yards of his (Jones’s) house, and “couldn’t get any further;” that he “was hollering,” and called witness out to give him a drink of water; and that he asked witness to carry him home. The witness testified further as follows: “I asked him what was the matter, and he says, ‘Oh Lord, I am shot.’ I says, ‘Who shot you?’ I asked Mm three times, and he says, ‘Ed.’ And I says, ‘Why did he shoot you?’ And he didn’t tell until we got nearly to the road, and he said he was trying to keep him out of the house with a gun, and ‘he shot me.’” Witness drove New-some home in his (Newsome’s) car, and helped carry him in the house. Newsome could not lie down and sat in a chair. When Newsome first drove up near the house of the witness he said, “Oh, Lord, help me; give me a drink of water.” Witness saw blood on Newsome’s left side.

It may be added here that Dr. Pilcher, who examined Newsome shortly after Jones carried him home, subsequently testified as fpllows: “I saw G-us Newsome on Sunday about eight o’clock, and he was wounded, pistol wound in the abdomen. He was seriously wounded. . . That wound produced his death.' The ball passed through the left side, going through the pan, and landed in the soft tissue of the right side. . . He asked me if I thought he was going to die, and I told him I thought he was seriously wounded. . . After the incision, I knew he would have to die. When I got to him, he stated that Ed Phillips shot him; and I asked him why, and he stated that he did not know. . . He said they were not in a fight. There were some powder burns around the wound. There were some excoriations, a small area about like that (indicating). That indicated . . close range. . . He was in a dying condition, but not dying. He was in an actually dying condition at the time he made those statements to me, and did actually die from those conditions in twelve or fourteen hours. . . This man was in a dying condition, but that condition had not progressed quite far enough for the heart to cease beating.” In this connection see Dumas v. State, and Duren v. State, supra.

In special ground 5 it is insisted that the court erred in overruling counsel’s motion, made after all the evidence was in, to “rule out all the evidence regarding a dying statement, or as to a dying statement,” for the alleged reason that Newsome was not shown to have been in articulo mortis and to have abandoned all hope of living. Besides the witnesses, Stapleton, Jones, and Dr. Pilcher, whose testimony has been considered, four other witnesses testified to Newsome’s declarations, and it does not appear from the record that the testimony of any of said four witnesses was objected to. Clearly th.is court can not pass upon this blanket motion to rule out the evidence of seven witnesses, when the ground neither gives the' name of any witness nor his testimony.

We shall now consider the first of the special grounds of the motion for a new trial. It is that the court committed error in charging the law of voluntary manslaughter, because there was nothing in the evidence, or in the defendant’s statement, or in both together, to authorize the charge. In addition to the evidence already stated, we quote from the testimony of Albert Rivers, as follows: “I observed a bruise on his [Phillips’] head. . . It was not so bad. . . I saw a scratch. . . I blowed, . . and he (Phillips) came out of the house. . . I am familiar with the premises around Phillips’ house. . . I remember that there is a lightwood fence, sawed pickets.” Another witness testified that the pickets in the fence were about 1 inch by 1 inch by 3 or 3~y2 feet. The defendant’s statement follows: “I had just taken my wife and little boy to Wrens to see Dr. Pilcher. I came on back home, and he was drinking; and I asked him to go to bed, and he says, “No, I am going to Pan Handle and raise hell.” We walked out in the yard. He says, “I will go up yonder and get Flora to stay with your wife. I says, No, I can’t go, I don’t want her down here with my wife.’ He says, “She is as good as your wife or anybody else’s,” and he commenced to beat me here and here [indicating] with a paling, and I shot him. He didn’t fall, and walked out to the well and got a drink of water. Later he cranked up his car and left. Later they taken me to jail at Warren-ton. Mr. Whitley and Dr. Davis saw these wounds, and are here in court subpoenaed by me, and will testify as to these wounds.” Bearing in mind that Newsome had only one arm, and that the blows inflicted upon defendant appear not to have been at all serious, and that the “paling” defendant says Newsome began to beat him with was not shown to have been a deadly weapon, we are quite sure that it was the duty of the court to charge the law of voluntary manslaughter. The law controlling this feature of the case is well expressed in the case of Brown v. State, 10 Ga. App. 50 (supra) in the following language: “On the trial of an indictment for murder, where the offense of voluntary manslaughter is reasonably deducible from the evidence or the defendant’s statement to the jury, considered separately or together, a charge on the law of voluntary manslaughter, and a verdict for that offense, were authorized.” See Grinstead v. State, 37 Ga. App. 118 (139 S. E. 120).

The evidence authorized the conviction, the court did not err in overruling the general grounds of the motion for a new trial, and for no reason assigned was error committed.

Judgment affirmed.

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


text:
    19047.
    MOBLEY, superintendent of banks, v. CHRISTIAN et al.

    Decided October 2, 1928.

      Clarence B. Adams, for plaintiff.

      B. Howard Gordon, for defendants.
   Luke, J.

A. B. Mobley, superintendent of banks, for the use of Madison County Bank, sued C. W. Christian, W. L. Hardman, J. W. Jones, L. A. Childers, and W. G. Threlkeld on a promissory note for the principal sum of $408, dated December 28, 1925, providing for fifteen per cent, attorney’s fees, and due September 15, 1926. C. W. Christian signed the note where a principal would ordinarily sign, and the names of the other defendants appeared on the back of the note.

All the defendants admitted the execution of the note, that the plaintiff was the lawful holder thereof, and that each defendant had received the notice required for the recovery of attorney’s fees, a copy of which, in proper legal form, was attached to the petition as an exhibit. C. W. Christian pleaded usury. Each of the other defendants filed a plea of usury, and in addition thereto pleaded substantially as follows: There was an original note dated March 17, 1923, due October 1, 1923, signed by C. W. Christian as maker, indorsed by J. W. Jones, W. G. Threlkeld, J. D. Drake, L. A. Childers, and W. L. Hardman, and payable to Madison County Bank. Said note was renewed by the bank’s taking a second note, dated October 1, 1923, and signed and indorsed as was the original note. The note sued on was a renewal of said note of October 1, 1923, and was indorsed upon the distinct agreement between the defendant and the bank that the defendant was not to be bound by said note until the bank procured the indorsements of all the indorsers on the two preceding notes. The indorsement of J. D. Drake, one of the indorsers on the first two notes, was never procured on the note sued on. Therefore the note never became a completed contract, and the defendant was not liable thereon as indorser.

The jury rendered the following verdict: “We, the jury, find for the plaintiff against C. W. Christian the sum of $313 and attorney’s fees, and that all indorsers be relieved, to wit: W. L. Hardman, J. W. Jones, L. A. Childers, W. G. Threlkeld.”

The plaintiff in error duly excepted pendente lite to the ruling that the defendants should have the opening and conclusion of the argument. The plaintiff in error also excepted to the judgment overruling the motion for a new trial.

The first question for consideration is whether the court erred in holding that each of the defendants admitted a prima facie case and was entitled to the opening and conclusion of the'argument to the jury. “In an action upon a promissory note, to entitle the defendant to the opening and conclusion, he must, before the plaintiff has introduced any evidence, admit in his written plea the execution of the note sued upon and that the plaintiff is the legal holder thereof.” Farmers & Merchants Bank v. Brantley, 20 Ga. App. 774 (93 S. E. 237), citing Montgomery v. Hunt, 93 Ga. 438 (21 S. E. 59); Levens v. Smith, 102 Ga. 480 (31 S. E. 104); So. Mutual Assn. v. Perry, 103 Ga. 800 (30 S. E. 658); Swanson v. Cravens, 105 Ga. 471 (30 S. E. 642); Whitaker v. Arnold, 110 Ga. 857 (36 S. E. 231); Walker v. Bryant, 112 Ga. 412, 414 (37 S. E. 749). See also Coker v. Citizens Bank of Gainesville, 35 Ga. App. 595 (2) (134 S. E. 355). Applying the law to the pleadings, the court was correct in denying the plaintiff in error the right to open and conclude the argument.

Special ground 1 of the motion for a new trial is that the court erred in refusing to permit the defendant Hardman to testify as to the solvency of J. D. Dr aire at the time Hardman indorsed the note, counsel stating that he expected to show that Drake was insolvent, and that his insolvency “would show that these parties would not have been careful about Drake’s signing if he was insolvent.” Since Hardman testified that all the indorsers on the old note were to indorse the note sued on before it should become a binding contract, and Drake was one of them, and since the testimony of the defendants who indorsed the note tended to support Hardman’s testimony in this regard, it is not at all likely that the evidence sought to be adduced would have discredited Hardman’s testimony in the minds of the jury, or would have led the jury to-reach a different verdict from the one rendered.

What was said in regard to the evidence of Hardman applies with equal force to that of L. A. Childers, another of the defendants. Certainly the refusal of the court to permit H. H. Hart, who ivas not e.ven a defendant in the case, to testify as to the insolvency of Drake was not reversible error.

The refusal of the court to allow defendant Jones to testify on cross-examination that he had offered to pay the attorney for the bank one half of the amount due on the note, “claiming that Mr. Childers was good, and that the rest of them were insolvent,” was not error for the reason stated in counsel’s objection, that it was in the nature of a compromise settlement between Jones and the bank acting through its attorney.

In the last special ground exception is taken to the following excerpt from the charge of the court: “I charge you as a matter of law that if that was the agreement, that all these indorsers were to sign this new note which is now being sued upon before it should become binding, then if J. D. Drake was not procured, his signature obtained, then these indorsers whose pleas you have before you would not be' liable on this note. However, if, as contended by the plaintiff in this case, at the time these indorsers signed this note which is being sued upon, there was merely an agreement that the cashier was to try to get the signature of J. D. Drake, then that would not release the parties to this note. If he merely promised to try to get the signature of Drake, that would not release these indorsers.”

Counsel insists that the court should have gone further and charged that a written contract could not be varied by parol evidence, “and that it would be necessary for the defendants to show that the note was delivered as a completed contract.” It is further contended that the charge led the jury to infer that “if they believed that the cashier of the bank did not carry out his agreement as contended by the defendants, they were in all events authorized to release them from their liability on their note.”

The law applicable, to this case is clearly and concisely stated in Pidcock v. Crouch, 7 Ga. App. 299 (66 S. E. 971), in this language: “While it is permissible to show that a promissory note, signed by one or more persons and apparently complete, is not in fact complete, by reason of the fact that it has never been delivered from one party to the other as a finally completed contract, but that it was simply left in the possession of the payee until some additional person should sign it before it should become a completed contract, yet it is not permissible to show by parol that a note was delivered to the payee as a completed contract, but upon a promise upon his part that he would subsequently secure the signature of another person thereto, where the writing is silent as to any such promise on the payee’s part.” See also Heitmann v. Commercial Bank of Savannah, 6 Ga. App. 584 (65 S. E. 590); Bray v. Comer Mercantile Co., 32 Ga. App. 746 (124 S. E. 817).

The foregoing charge accurately stated the contention of the defendants. It gave the contention of the plaintiff almost in the words of the bank’s cashier who handled the transaction for the bank, and advised the jury that the indorsers would not be released if this contention was true. If the jury “believed that the cashier of the bank did not carry out his agreement as contended ly the defendants," it was their duty, under the law, to relieve the indorsers from liability on the note. The charge was not an inaccurate statement as to the law and was not inherently harmful to the plaintiff in error, and there was no request for fuller instructions. This last special ground indicates no reversible error, and the trial judge did not err in overruling it.

There was evidence to support the pleas of usury; and the evidence was conflicting as to whether or not the note was a binding and completed contract. Therefore the jury’s verdict, sustained by the evidence and approved by the trial judge, can not be reversed by this court for any reason assigned in the general grounds of the motion for a new trial.

Judgment affirmed.

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


text:
    19052.
    Hicks v. Brown Estate.
    Decided October 2, 1928.

      Astor Merrill, for plaintiff in error. J. B. Hutcheson, contra.
   Luke, J.

1. There being evidence to support the verdict rendered, this court can not say that the trial judge erred in overruling the general grounds of the motion for a new trial.

2. There being no assignment in the final bill of exceptions either upon- the exceptions pendente lite or upon the rulings excepted to therein, no question is presented for decision under the exceptions pendente lite. Ga. L. 1921, p. 232 (Michie’s Code (1926), § 6139 (1)); Alexander v. Chipstead, 152 Ga. 851 (111 S. E. 552); House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701); Atlanta Life Ins. Co. v. Jackson, 34 Ga. App. 555 (130 S. E. 378); Carter v. Vanlandingham, 37 Ga. App. 642 (141 S. E. 429).

3. The special grounds of the motion for a new trial show no reversible error. Judgment affirmed.

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


text:
    19054.
    Hines v. The State.
    Decided October 2, 1928.

      W. A. Dampier, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
   Luke, J.

It appearing from the uncontradicted evidence in this case that the defendant was in possession of whisky as charged, the trial judge properly overruled the motion for a new trial, based solely upon the usual general grounds, and the conviction must stand.

Judgment affirmed.

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


author: Bkoyles, C. J.

text:
    19055.
    St. Paul Fire & Marine Insurance Co. v. McCoy.
    Decided October 2, 1928.

      Underwood, Haas & Gambrell, R. Emerson Gardner, for plaintiff in error.

      Sibley & Sibley, contra.
   Bkoyles, C. J.

1. “In a suit upon a policy of fire insurance it is incumbent upon the plaintiff to allege in his petition that the property destroyed by fire belonged to him, or that he had some insurable interest therein, at the time of the fvre. (Italics ours.) . . Where the petition contains no such allegation, no cause of action is set forth.” Northwestern National Ins. Co. v. Southern States Phosphate &c. Co., 20 Ga. App. 506 (1, 1-a) (93 S. E. 157).

2. In the instant case the plaintiff in his petition alleged in substance that the automobile insured was his property on the date of issuance of the policy of insurance, to wit on September 24, 1926. He further alleged that the automobile was damaged and completely destroyed by fire on or about April 9, 1927. However, the petition failed to allege that the plaintiff owned the automobile at the time of the fire, or that he had some insurable interest therein at that time. The petition failed not only definitely to allege ownership of the property by the plaintiff at the time of the fire, but also failed to allege possession thereof by the plaintiff at that time. Had the petition alleged such possession, that allegation, together with the other facts alleged, possibly might have saved the petition from being subject to general demurrer, for possession by the plaintiff' of the property at the time of the fire, coupled with a bona fide claim of right thereto, “would doubtless raise in his behalf a presumption of ownership.” Morris v. Imperial Ins. Co., 106 Ga. 461, 463, bottom of page (32 S. E. 595). It was, however, essential for the plaintiff, in order to set forth a cause of action, to show or allege in his petition that the property insured belonged to him at the time it was destroyed by fire, or that, he had some insurable interest therein at that time. Morris v. Imperial Ins. Co., supra, 464 (top of page). It follows that the petition failed to set out a cause of action, and the court erred in overruling the defendant’s motion (made at the trial term) to dismiss the petition on the ground “that the plaintiff failed to allege in his petition that the subject of insurance belonged to him or that he liad any interest therein at the time of the alleged destruction of same.”

3. The error pointed out in the preceding paragraph rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, J.J., concur.


text:
    19070.
    WHITFIELD v. THE STATE.
    Decided October 2, 1928.

      II. G. Rawls, for plaintiff in error.

      B. T. Oasielloiu, solicitor-general, Bond Almand, contra.
   Luke, J.

Amie Whitfield was indicted for murder and convicted of voluntary manslaughter. The motion for a new trial was based upon the usual general grounds, the contention being that, while the accused might have been acquitted or convicted of the charge made, there was nothing in the case to sustain a conviction of manslaughter.

The evidence may be briefly summarized as follows: Bessie Walker was seen running from an outhouse, where she said she had been to relieve herself, with Amie Whitfield in hot pursuit. It was night and dark. Just before Bessie ran up to a witness and asked him not to let Amie cut her any more, the witness heard Amie say, “I have caught you,” and heard Bessie say, “Amie, don’t cut me, please.” When Amie came up, she had a pocket-knife, and was threatening to kill Bessie. Another witness took the knife from Amie. Amie told Bessie that she had caught her with her (Amie’s) husband. Bessie said she was in the outhouse relieving herself when Amie ran up and cut her. No weapon was found on Bessie. She was severely cut and bloody, and died as a result of the knife wounds inflicted by Amie. The full statement of the defendant follows: “Well, I cut this woman, and I cut her because I caught my husband on her. I had suspicioned them for six or seven weeks, and Will Scott came to me and told me that this woman was going to meet my husband at this house that night, and I went to the house.and waited for a while. And I struck a match and held it in the window, and my husband was on top of her, and I grabbed at him as he rim out, and I cut her because I couldn’t help it, I was so mad.”

In Daniels v. State, 162 Ga. 366 (133 S. E. 866), where it was inferable from the evidence that immediately after hearing her husband make an engagement to meet his mistress at night for the purpose of having illicit intercourse with her, the defendant followed the pair, and, in a violent and sudden heat of passion, slew the other woman, the court held that it was for the jury to say whether the homicide should be reduced from murder to voluntary manslaughter. In this decision the law controlling such cases was laid down in the following language: “While the jury may acquit the slayer of all crime, and should do SO' if they find that the kill ing was necessary, or apparently so, either to prevent the commission of a sexual act or the completion of it, yet, if the circumstances were not such as to impress a rational mind that it was necessary to take human life to prevent the sexual intercourse, and if the jury should find that the slayer killed the deceased under a violent and sudden impulse of passion, engendered by the circumstances, the homicide would be manslaughter. Mays v. State, 88 Ga. 399 (14 S. E. 560); Patterson v. State, 134 Ga. 264 (67 S. E. 816). Under the homely maxim that what is sauce for the goose is sauce for the gander, the above principles are applicable in a proper case where the wife is the slayer.”

It is clear to our minds that the jury had the right to conclude in the instant case that it was not necessary for the defendant to slay the deceased either to prevent the commission of a sexual act or the completion of it, and that the killing was done in a sudden and violent impulse of passion engendered by the circumstances. The verdict was warranted by the evidence and the defendant’s statement, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    19072.
    HALL v. YOUNG L. G. HARRIS COLLEGE.

      Decided October 2, 1928.

      W. T. Davidson, for plaintiff.

      T. S. Candler, W. V. Lance, T. J. Long, Ed. Quillian, Jones & Reid, Candler, Thomson & Hirsch, for defendant.
   Broyles, C. J.

“Process is a mandatory precept, issuing from a court. The mandate is set forth in the body of the instrument, which we call a process, and this may be printed or written out by any scrivener, but it is the signature of the proper officer which gives it efficacy. [Italics ours.] From the instrument itself, the person to whom it is addressed, or who is to be affected by it, learns what is required of him; from the official signature ho learns that it emanates from a court authorized so to command him. The mandate, without the authenticating signature, is no more ‘process" than would be the signature without the preceding mandate.” Brown v. Way, 33 Ga. 190, 191, 193. See also Chapman v. Central &c. Ry. Co., 20 Ga. App. 251 (93 S. E. 1025); Union Marine Fire Ins. Co. v. McDermott, 31 Ga. App. 676 (121 S. E. 849). Under this ruling and the facts of the instant case (the original process and the copy of process served on the defendant not being signed by any one), there was no process, and the court did not err in refusing to allow the proffered amendment to the process.

The only other assignment of error in the bill of exceptions is upon the judgment dismissing the petition upon the defendant’s written plea and motion “that said suit should be dismissed on the ground that the original process and the copy of process served on this defendant is unsigned by the clerk of the superior court of said State and county.” The sole exception to that judgment is as follows: “ To this ruling and order sustaining defendant’s motion to dismiss plaintiff’s petition, and in dismissing the same, the plaintiff in error excepted, now excepts, and assigns the same as error, upon the grounds that said ruling and order sustaining .defendant’s motion and in dismissing plaintiff in error’s petition was contrary to law. The court having refused to allow the process to plaintiff in error’s petition to be amended as above recited, and such rulings being controlling, as plaintiff in error contends, which entered into and affected the further progress and final result of the case, the court erred by sustaining defendant’s motion to dismiss plaintiff in error’s petition. To the action and ruling of the court in sustaining the motion of defendant to dismiss plaintiff in error’s petition, and in dismissing said petition, the plaintiff in error excepted, and now excepts, and assigns the same as error upon the ground that same was contrary tó law, and the said court having refused the process to be amended, and such refusal as plaintiff in error contends being controlling in effect, the said order and Judgment sustaining defendant’s motion to dismiss plaintiff in error’s petition could not be and are not a legal termination of the case.” In view of the ruling of this court in the first paragraph above, that the refusal to allow the proffered amendment to the process was not error, the above-stated assignment of error is without merit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    19085.
    Rowland v. The State.
    Decided October 2, 1928.

      William B. Kent, for plaintiff in error.

      W. B. GUIs, solicitor-general, contra.
   Luke, J.

1. There was uncontradictcd evidence iu this case that four two-gallon jugs of whisky were found in a hole under the defendant’s residence, and, under all the facts of the ease, the jury were authorized to find against the defendant’s contention that the whisky was “planted,” and this court can not say that the trial judge erred in overruling the general grounds of the motion for a new trial.

2. Grounds 1 and 3 of the amendment to the motion for a new trial can not be considered, for the reason that they are not approved by the trial judge.

3. The State having made a countershowing to the alleged newly discovered evidence that the foreman of the jury trying the case had stated that if he ever got a chance at the defendant, “he would put him just as far in the pen as he could,” this court can not say that the trial judge abused his discretion in overruling special ground 2 of the motion for a new trial. Hayes v. State, 16 Ga. App. 334 (85 S. E. 253); Crumley v. State, 23 Ga. App. 312 (98 S. E. 230); Bradford v. Brand, 132 Ga. 642 (64 S. E. 688); Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116); Brazil v. City of LaGrange, 37 Ga. App. 500 (4) (140 S. E. 782).

Judgment affirmed.

Broyles, O. J., and Bloodioorth, J., concur.


text:
    19094.
    HUFF v. THE STATE.
    Decided October 2, 1928.

      Earl W. Butler, for plaintiff in error.

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

The jury had the right to conclude in this case that at about five o’clock on „a January morning the defendant was seen, not far from the place where the store was burglarized the night before, with several of the articles of merchandise taken from the store. The defendant denied his guilt, and said he bought the merchandise found in his possession from an unnamed boy, who said he was working with a drummer. The contention is that the evidence does not support the verdict. It was for the jury to decide whether or not the goods found in the defendant’s possession were taken from said store, and whether or not the defendant satisfactorily explained his possession of the goods; and the trial judge did not commit error in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    18766.
    Wade v. Georgia Motor Sales Inc.
   Stephens, J.

1. A mere breach of warranty of a contract of sale of personal property does not, when the contract is executed, authorize a rescission of the contract by the purchaser. Civil Code (1910), § 4136. Hutchinson Lumber Co. v. Dickerson, 127 Ga. 328 (3) (56 S. E. 491).

2. Where an automobile had been purchased under a contract by which the seller retained “title to and ownership” of the property until payment of the purchase-money, and which provided that, in the event of failure to pay the purchase-money in accordance with the terms of the contract, the seller was authorized to take possession of the property and sell it and apply the proceeds to the unpaid purchase-money, the petition, in a suit by the purchaser against the seller to recover an amount paid on the purchase-price, in which it was alleged that the plaintiff “surrendered the car into the possession of defendant,” and that the “defendant accepted possession of the car as its own and exercised acts of ownership over it,” alleged an act by the defendant within the defendant’s right to perform under the contract, and therefore not conduct by the defendant which authorized an inference that, by the acceptance of the automobile by the defendant after its surrender by the plaintiff, there arose an agreement to rescind the contract of sale.

3. Whore, in a suit for a breach of warranty in the contract for the sale of an automobile, the petition alleged that the automobile “proved wholly ■ worthless for the use intended, in that the engine was constantly getting out of order, developed a noise, was unable to properly pull, ran hot, did not take the gas properly, and the piston, or something in the engine, blew out,” and that the automobile was entirely worthless for the use intended, the petition in this respect was subject to special demurrer, as being vague, indefinite, and uncertain, and not sufficiently specific as to the nature of the alleged defects which rendered the automobile worthless for the use intended.

4. In a suit by the purchaser of an automobile against the seller for an alleged breach of warranty whereby the automobile was rendered totally worthless to the plaintiff, where it was alleged that the plaintiff was damaged in deprivation of, and inconvenience in, the use of the automobile, in the sum of $100, but where the period of time during which the plaintiff was deprived of the • use of the automobile was not alleged, and where it was not alleged more specifically wherein the plaintiff suffered inconvenience in the use of the automobile, the petition was for this reason subject to special demurrer.

5. The agreed value of personalty transferred by the purchaser to the seller in part payment of the purchase-money is not legally recoverable by the purchaser as damages for a breach of warranty in a contract of sale. In a suit by the purchaser of the automobile against the seller for an alleged breach of warranty of a contract of sale, where the petition alleged, as the basis of the breach, that “the valve spring broke”, and specifically alleged the plaintiff’s damages as being the agreed value of another automobile, taken by the seller from the purchaser in part payment of the purchase-money, and also damage in an amount representing a loss to the purchaser for time arising out of the privation of the use to him of the automobile and for inconvenience to him in its use, the petition, in so far as it sought to recover, as damages for the alleged breach of warranty, the agreed value of the automobile taken in part payment of the purchase-price, alleged a measure of damages that was not recoverable; and where the petition did not allege the plaintiff’s damages otherwise than in a sum representing a loss to the purchaser for time arising out of deprivation of the use to him of the automobile and for inconvenience to him in its use, which allegation was stricken from the petition on special demurrer, the petition, in so far as it sought to recover for a breach of warranty by virtue of the breaking of the valve-spring, failed to set out a cause of action, and was subject to general demurrer. Truitt v. Rust-Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645); Haber-Blum-Bloch Co. v. So. Bell Telephone Co., 118 Ga. 874 (45 S. E. 696); Wright v. Smith, 128 Ga. 432 (57 S. E. 684); Christophulos Cafe Co. v. Phillips, 4 Ga. App. 819 (62 S. E. 562).

6. Whether the petition in a suit brought by the purchaser against the seller is construed as a suit based upon a breach of warranty by the seller, or as a suit based upon a rescission of the contract arising either by an agreement between-the parties or by conduct of the defendant authorizing a rescission by the plaintiff, the petition was subject to the general and special demurrer interposed, and the court did not err in sustaining the demurrer.

Decided October 11, 1928.

Fleming & Fleming, fox plaintiff.

Hamilton Phinizy, for defendant.

Judgment affirmed.

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


text:
    18930.
    Seckinger v. Exchange Bank of Springfield.
    Decided October 11, 1928.

      J. W. Usher, H. R. Tarver Jr., Clarence T. Guyton, for plaintiff in error.

      Paul F. Seabroolc, contra.
   Stephens, J.

1. The provision in section 3546 of the Civil Code (1910), relative to discharge of a surety, guarantor, or indorser of a promissory note on failure of the creditor, after notice from the surety, guarantor, or indorser, to bring suit against the principal within a required time, that “no notice shall be considered a compliance with the requirements of this section which does not state the county of the principal’s residence,” requires actual notice. Constructive notice, if there be any, arising by virtue of an act of the legislature incorporating a city, that the city is in a particular county, will not suffice as a compliance with this section. Ware v. City Bank of Macon, 59 Ga. 840 (5); Smith v. Morris Fertilizer Co., 18 Ga. App. 217 (89 S. E. 174).

2. A notice which states that the principal’s residence is “Waycross, Ga.,” but which does not state the county of the principal’s residence, is not the notice required by the Civil Code (1910), § 3546.

3. This being a suit by the payee of the note against an indorser thereon, the plea of the defendant was properly stricken on demurrer, and the judgment aiterwards rendered for the plaintiff was not, by reason of the judgment on the demurrer, error.

Judgment affirmed.

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


author: Bell, J.

text:
    18744.
    Davis v. Lee.
   Bell, J.

Under the provisions of section 5183 of the Civil Code, requiring that a petition for certiorari “shall plainly and distinctly set forth the errors complained of,” a mere general averment of error, in connection with which there is no statement or assignment whatever as to how or wherein the rulings complained of were erroneous, presents no case or question for decision by the judge of the superior court. Edgeman v. Stewart, 141 Ga. 686 (81 S. E. 1036); Citizens Banking Co. v. Parris, 119 Ga. 517 (46 S. E. 638); Smith v. Marshall, 127 Ga. 374 (56 S. E. 416); Harrell v. Quitman, 17 Ga. App. 299 (86 S. E. 662); Chan v. Judge, 36 Ga. App. 13 (134 S. E. 925).

Decided October 12, 1928.

Parker & Parker, Walter Thomas, for plaintiff.

Robert G. Mitchell, for defendant.

2. Accordingly, the petition for certiorari in the instant case, which contained only the following assignments of error: “Petitioner avers that said court erred in refusing him the right to present his evidence in support of his plea, and in not allowing him to present his side of the case and considering same, and in entering up judgment against him in one or all five of said suits, all of which judgments, rulings, and findings of said court the petitioner assigns as error,” did not meet the requirements of the statute referred to above; and the judge of the superior court should have dismissed the petition for certiorari, instead of sustaining the same and remanding the case for a new trial. Especially is this true where, as here, the magistrate in his answer denied having refused the petitioner “the right to present his evidence in support of his plea, and in not allowing him to present his side of the case,” thereby leaving nothing for consideration by the judge of the superior court in the hearing on the certiorari, except the mere statement in the petition that the magistrate committed error in entering up final judgment against the petitioner.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.