text:
    18443.
    WINDER NATIONAL BANK v. GRAHAM.
    Decided September 1, 1928.

      J. G. Pratt, for plaintiff. J. D. Quillian, for defendant.
   Bell, J.

This was an action by Winder National Bank upon a joint and several note for $1,000 alleged to have been executed by W. G. Graham and Mrs. Delia Graham. Mrs. Graham alone was sued. She pleaded no consideration, non est factum, and usury. The court directed a verdict in her favor upon the plea of usury, and, the bank’s motion for a new trial assigning error upon that ruling having been refused, the bank excepted.

Stated most favorably to the plaintiff bank, the evidence established conclusively and without dispute that W. G. Graham, a son of the defendant, being indebted to the bank upon a note for $12,500, past due since July 20, 1924, applied to the bank for a new loan of about $900 to be made jointly to himself and his mother, which loan they obtained on April 3, 1925. As a condition precedent to the making of this loan, the bank demanded that the defendant Mrs. Graham sign the note sued on in the sum of $1,000 as surety for W. G. Graham, to cover interest on the old loan from July 30, 1934, to July 30, 1935, thus extending the maturity of the old debt from a date in the past to a date in the future. There was nothing to show that Mrs. Graham was in any way connected with or responsible for the old debt, or that she desired any extension of the maturity thereof, or received any benefit whatever from such extension. The agreements herein referred to were made between the bank and W. G. Graham in the absence of Mrs. Graham: It does not appear that W. G. Graham was authorized to speak for his mother except for the purpose of obtaining the new loan of $900 to be made to him and to her jointly as above indicated. The full legal rate of interest was charged upon this loan, and the principal and interest amounted at maturity to $974.51, for which a note was executed by the borrowers; that debt has been fully paid and is now material only as the transaction in which the alleged usury was exacted, the contention of the defendant being that the amount of the note sued on was, as to her, usury.

We think the plea of usury was sustained by the evidence, as a matter of law, and, therefore, that the court committed no error in directing the verdict in favor of the defendant. According to our interpretation of the decision of the Supreme Court in Bishop v. Exchange Bank, 114 Ga. 962 (2) (41 S. E. 43), the promise of Mrs. Graham as surety, contained in the note sued on (assuming that she executed it), to become responsible for a debt of W. G. Graham in the sum of $1,000, was nothing more nor less than usury; and, under the act of 1916 (Ga. L. 1916, p. 48, Park’s Code Supp. 1922, § 3438), was subject to be forfeited. Compare Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (132 S. E. 221).

We do not think the conclusion should be otherwise merely because there was an extension of the old indebtedness due to the bank by W. G. Graham, although this, under other circumstances, could have amounted to a sufficient consideration for the note in controversy. The usury springs from the fact that the defendant was required at all to sign the note as surety, when the same was exacted as a condition precedent to the making of a loan to her by another, upon which the full legal rate of interest was charged, and when as to her there was absolutely no other benefit or consideration for her promise as contained in the note. Nor do we think it material whether W. G. Graham was solvent or insolvent, although insolvency was a fact mentioned in the decision in the Bishop ease, supra, and in some of the cases cited therein.

The defendant testified in support of her plea of non est factum and denied the whole transaction except as to the procuring of the new loan by herself and W. G. Graham, and as to the payment of that indebtedness. The evidence was in dispute as to the issue of non est factum, and, while it is true that the contention of the defendant upon that question might, without a further disclosure of the facts, appear to have been inconsistent with the plea of usury, and thus to have made the question of usury also a matter for determination by the jury (see Wheeler v. Salinger, 33 Ga. App. 300 (6, 7, 8), 125 S. E. 888; Myers v. Woodson, 33 Ga. App. 748 (3), 127 S. E. 888), such is not the case as actually made in the record.

The plea of usury, so far from admitting the execution of the instrument, expressly repeated the defendant’s denial of its execution. It then proceeded to allege facts showing that the note in any event could not have been other than an usurious transaction. This plea was sustained by the testimony of H. M. Oakley, a former official or employee of the bank, from whose evidence it appeared, without dispute, that the terms and conditions of what we have herein referred to as the new loan were agreed to by the bank and W. G. Graham in the absence of Mrs. Graham and were as above stated. The witness prepared the papers and they were taken to the home of Mrs. Graham by Hope Harris, another of the bank’s employees, for execution. The defendant testified that she signed only the note for $974.51, and knew nothing of any other transaction or agreement. Harris testified to his having carried the notes to the defendant’s home for her signature, and that she executed each of them, including the one sued on. This witness gave no evidence whatever as to the nature of the transactions in question. The defendant’s pleas as drawn were not contradictory, and there was no inconsistency or conflict between her testimony and that of Oakley, nor was Oakley contradicted by any other witness.

In these circumstances we think that the plea of usury was sustained by the evidence as a matter of law, and thus that the court did not err in directing the verdict in the defendant’s favor.

The court did not err, as assigned in the motion for new trial, in admitting certain testimony referred to therein. There was no error in refusing the motion.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18466.
    HUTCHINGS v. ROQUEMORE.
    Decided September 1, 1928.

      E. F. Goodmm, for plaintiff in error.

      J. D. Hughes, J). W. McCoy, contra.
   Bell, J.

The bill of exceptions in this case seeks to review a judgment of the superior court of Bibb county refusing to sanction a petition for certiorari which complains of a judgment of the municipal court of Macon. The superior court refused the sanction expressly upon the ground “that under the act of the legislature approved August 7, 1925 (Ga. Laws 1925, p. 463), certiorari is not the proper remedy.” In the bill of exceptions the assignments of error were limited to an attack upon the constitutionality of the act of 1925. There was no attempt to raise any other question, and this question was not raised in the petition for certiorari. The case first went to the Supreme Court and was later by that court transferred to this court, the Supreme Court holding that no constitutional question was properly raised for determination. Hutchings v. Roquemore, 164 Ga. 637 (139 S. E. 216). Since the assignments-of error by which it was sought to confer jurisdiction upon the Supreme Court were nugatory and futile, and since there are no other exceptions to the judgment, the bill of exceptions presents no question whatever for decision, and must be dismissed. .

The conclusion reached herein is not altered by the fact that in a later decision in another case the Supreme Court held that the act was unconstitutional. See Empire Investment Co. v. Hutchings, 166 Ga. 749 (144 S. E. 209).

Writ of error dismissed.

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


author: Bell,. J.

text:
    18544.
    WESTERN & ATLANTIC RAILROAD v. HETZEL, executrix.
    Decided September 1, 1928.

      Tye, Peeples & Tye, Seth M. Walker, Neel & Neel, for plaintiff in error.

      Reuben R. & Lowry Arnold, Fred Mayfield, Paul F. Akin, John T. Norris, contra.
   Bell,. J.

Mrs. Hetzel, as executrix, brought suit under the Federal employer’s liability act against Western and Atlantic Bail-road for the homicide of her husband, W. F. Hetzel, alleged to have been caused by the defendant’s negligence. After verdict for the plaintiff, the defendant moved for a new trial, and, the motion being overruled, the movant excepted.

The decedent was employed by the defendant as a locomotive engineer. On January 18, 1925, he was operating the engine of a passenger-train en route from Chattanooga to Atlanta, and was fatally injured when his locomotive collided with a landslide of earth and rock which had fallen upon the track in a cut near the station of Hugo, in Bartow county, Georgia. Because of embankments and the curvature of the tracks, the decedent was unable to see the obstruction until it was too late to stop the train and avoid the danger. As to the character and condition of the track and right of way at the place in question, the petition alleged: “The formation of said cut on said side of track at point of said derailment was largely of rock formation and was composed of layers with seams in them which would receive and did receive the water percolating from the surface of the earth, and the said layers of rock on said right side were of a very heavy substance, and sloped downward towards the track and pointed to the track, and the tendency thereof was, if said layers slipped from any cause, that the same would slip towards said track, and, on account of the great height of said cut and its close proximity to the track as aforesaid, the said layers, in case of a slide or fall, would fall directly upon said track and obstruct the same. . . On said right side of the cut the said rock formation did not have any anchorage or toe hold, which anchorage or toe hold in case of breaking of the seams would cause the same to remain stationary, but in the absence of said anchorage or toe hold, when said layers were loosened or cracked by the force of gravity, the same would slide down towards said track, and any vibration or rain or other cause which would tend to loosen up said layers or cause water to- percolate between the same or cause cracks or seams to occur in the same from strain or vibration or other cause would, on account of the natural incline of said layers towards the track, cause them inevitably to pile upon said track and obstruct the same. . . The said layers of rock in such dangerous and close proximity on said right-hand cut of said track sloped at an angle of from 40 to 50 degrees towards said track, which was a dangerous angle, and which, in connection with their weight and their formation into layers, constituted a constant menace to said track as aforesaid. . . Between the layers of rock at said point there were various seams, fissures, crevices, and openings, into which the water falling upon the surface of the earth would naturally tend to percolate, thus rendering larger the seams and openings and in the course of time decrease the power of resistance to slipping. . . The point of said derailment was specially dangerous because the same was approached from the north on a curve, and said curve, in connection with said steep cut and embankment, would prevent the crew on the train from seeing a landslide, should there be one on the track, in time to avoid danger.”

It is alleged that the defendant was negligent “in maintaining the side of the cut too close to said track . . and in maintaining the same in too vertical a position;” and “in all particulars hereinbefore described [italics ours] in reference to the construction and maintenance of said track, road-bed, cut, embankment and right of way, and that the same at the point of said derailment was dangerous in the particulars hereinbefore described, and that the defendant was negligent in maintaining the same, and that the said landslide occurred because of defendant's failure to exercise ordinary care in the particulars hereinbefore described in the construction and maintenance of said track, roadbed, right of way, embankment and adjacent parts, and had the same not been negligently constructed and maintained, as hereinbefore fully set forth and described, the said landslide would not have occurred, and said rock, debris, and dirt would not have obstructed said track.”

We can not say that the court erred in refusing a new trial on the general grounds of the motion. The question of whether the defendant was negligent as charged in the petition was a matter of prolonged inquiry in the trial court. The brief of evidence, comprising some 340 pages, is replete with the testimony of various experts and discloses that the evidence was devoted chiefly to that important issue. Some of these witnesses had not examined the particular location until after the catastrophe, and it is pointed out by counsel for the plaintiff in error that only one of the witnesses who testified for the plaintiff “had seen the cut before the slide,” and that even this witness had made no particular inspection of it and was a man with little or no experience in railroad matters.

However,- it can not be said, under the record, that the other witnesses had no opportunity for knowing the facts to which they testified, nor that their opinions as experts, based upon subsequent examinations, should have been disregarded by the jury. Besides, numerous photographs picturing minutely the wall of the cut and disclosing in some measure the character of the formations were introduced in evidence, and from these alone the jury could have drawn inferences favorable to the plaintiff upon the question of whether the defendant had exercised reasonable diligence in the maintenance of its track and right of way as respects such conditions. The fact that no landslide had occurred in the particular cut during the space of eighty years, or since the construction of the road, did not conclusively establish the fact that the defendant was not negligent in supposing that one would never occur.

A solution of the question of liability depended mainly upon a knowledge of geology, applied science, and railroad engineering, and, after a careful examination of the case in the light of such little knowledge as we possess touching these matters, we are, in the language of Judge Bleckley (Oglethorpe Mfg. Co. v. Van Winkle, 54 Ga. 569) “unable to make a better verdict for the plaintiff in error than the jury made.”

The court charged the jury as follows: “Under the provisions of the act of Congress, any common carrier by railroad, where death of any employee occurs, due to injuries, and action is brought therefor against such a common carrier, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damage shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

In the motion for new trial the defendant complains that this charge was erroneous because it authorized the jury to find for the plaintiff regardless of the defendant’s negligence, and irrespective of whether the injury resulted from a risk which the decedent assumed. There is no merit in this contention. The court was instructing the jury not upon the question of liability, but upon the effect of contributory negligence by the decedent. The charge was substantially in the language of section 3 of the Federal employer’s liability act (U. S. Comp. St., §§ 8657-8665), and was entirely free from the criticism made upon it.

In the motion for a new trial error is also assigned upon the following charge of the court: “If the jury finds that the decedent, Mr. Hetzel, was guilty of some negligence which contributed to his death, but that the defendant railroad was also guilty of négligence in some or all of the particulars described in the petition, which likewise contributed partly to the injury, and if the damages on that account are diminished by the jury in proportion to the amount of negligence attributable to such employee, the jury will consider this rule as applicable to the entire charge of the court on the measure of damages.” The contention here is that in the use of the clause, “if the damages on that account are diminished by the jury in proportion to the amount of negligence attributable to such employee,” and especially by the “if,” the court in effect left it to the jury to. determine whether they “should or would diminish the amount of damages” awarded to the plaintiff in proportion to the negligence attributable to the decedent, notwithstanding they might find as a matter of fact that the decedent’s negligence did conribute to his injury and resulting death.

It is true that if the decedent was contributorily negligent, the damages accruing to the plaintiff should, as a matter of law, be reduced in like proportion, the law being that, where the existence of such contributory negligence is once determined, the making of such reduction will not depend upon the discretion of the jury, but will follow as an absolute legal consequence. However, the charge of the court here under consideration could not have misled the jury to a different conclusion as to this rule of law, the same having been sufficiently explained to them elsewhere in the charge. The point which the court was endeavoring to bring out was that the rule in relation to the diminution of damages should apply to the entire measure of damages or to all elements of damages, should it appear in fact that the decedent was guilty of some contributory negligence.

The judge was doubtless making an effort to rid the case of any such question as confronted this court in Western & Atlantic Railroad v. Reed, 35 Ga. App. 538 (6) (134 S. E. 134), and the word “if,” as used in the clause referred to, was clearly not intended to imply a condition which would leave the matter of reduction wholly to the pleasure or will of the jury, the effect of the instruction being that if the jury should find that the defendant and the decedent were each guilty of negligence contributing to the decedent’s death, then, on coming to the matter of reducing the damages, the jury should understand that the rule in reference thereto was to be applied by them to the entire measure of damages or to all elements of damages submitted for their consideration; and this is so plainly true that the jury could not have thought otherwise.

A further ground of the motion complains that the court did not clearly and adequately state to the jury the defendant’s plea of contributory negligence, nor sufficiently instruct them as to the law applicable to such plea. An examination of the entire charge discloses that this contention is without merit.

The defendant made timely requests in writing for certain instructions, as follows:

(a) “I charge you that in order for the plaintiff to recover in this case it is not enough for the evidence to raise in your minds mere surmise or conjecture that there may have been negligence on the part of the defendant. There must be such a preponderance upon the whole evidence in favor of the plaintiff’s allegations of negligence on the part of the defendant to justify a conclusion on your part that such negligence existed. The charges of negligence made by plaintiff against -defendant in her petition must be proved by the greater weight of the evidence before you can find a verdict in her favor. You have no right to presume negligence on the part of defendant, and if the evidence in this case does not preponderate in favor of plaintiff, then your verdict should be for the defendant.”

(5) “It is not sufficient for plaintiff to show that defendant may or might, or could have been guilty of such negligence, but plaintiff must show by a preponderance of the evidence that defendant was in fact guilty of such negligence; and if the evidence leaves the matter uncertain, the jury would have no right to act on a mere guess or conjecture as to the existence of such negligence of defendant, and on such guess or conjecture find the defendant guilty of such negligence and that the same was the real cause of the disaster complained of.”

(c) “I charge you that it is your duty to consider the ease in all its bearings the same as you would a case between private citizens. The defendant corporation is entitled to the same fair and unprejudiced treatment in a court of law as an individual would be under like circumstances.”

(d) “I charge you that the defendant company was not an insurer of the life or safety of the said W. F. Hetzel. The law does not impose upon a railroad company the duty to insure to its employees that the place where they work or carry on the business of the company shall be absolutely safe. The duty of the defendant company to its employees, including the said W. F. Hetzel, as to providing a safe place for them or him to work, would be fulfilled by the exercise of ordinary care on the part of defendant to provide a reasonably safe place for such work as deceased was called upon by his duty as its employee to do under such conditions as it should be reasonably anticipated would exist in the operation of its trains by said Hetzel as engineer thereof in running over the track where the injury is alleged to have occurred.”

Several of such requested instructions would have injected into the case issues that, so far as appears from the pleadings or the evidence, were entirely fictitious, and each of them was argumentative. The fact that the highest court in the land may, in discussing some case, have used language similar to that employed by the defendant in one or more of these requests did not make it obligatory upon the trial court to charge the jury as requested. In Flemister v. Central Ga. Power Co., 140 Ga. 511 (8), 517 (79 S. E. 148), our own Supreme Court, dealing with an assignment of error upon the refusal of the trial court to give to the jury certain requested instructions, said: "The request to charge embodied in the twenty-fifth ground was generally in the right direction, and was doubtless taken largely from Boom Co. v. Patterson, 98 U. S. 403 (25 L. ed. 206). It is, however, argumentative in form, which may be meritorious in an opinion of a court of last resort, where a proposition is being supported by reason and authority, but is not desirable when a trial judge is charging a jury, and, under the practice in this State, may amount to positive error.” See also: Bellamy v. City of Atlanta, 75 Ga. 167 (1); Caraker v. Brown, 152 Ga. 677 (3) (111 S. E. 51); Griffin v. State, 34 Ga. App. 526 (130 S. E. 368).

Assuming that the last sentence of the request designated as d above could be construed as stating a correct principle of law, the language was so confused and involved that a jury of laymen would probably never have understood what the principle was. Under the ground of the motion complaining of the court’s refusal to give such statement in charge, counsel for the plaintiff in error have taken occasion to discuss the question of whether the duty of the master in reference to the place of work is to use ordinary care to furnish a safe place, or to exercise such care to furnish a reasonably safe place, the contention being that the latter expression is a statement of the true rule.

The Justices of the Supreme Court of Georgia were evenly divided upon the point, presented on certified question in Otis Elevator Co. v. Rogers, 159 Ga. 53 (125 S. E. 60). Upon the return of that case to this court by the Supreme Court without instructions, this court agreed with the view of those Justices who were of the opinion that the master’s duty is to exercise ordinary care to furnish a safe place of work, “especially so when applied to the excerpts complained of.” Otis Elevator Co. v. Rogers, 33 Ga. App. 181 (125 S. E. 763).

Counsel, in undertaking, to sustain the proposition that the duty concurrently and conjointly involves the idea of both ordinary care and the reasonableness of the safety to be provided, have cited several cases decided by the Federal Supreme Court, namely: Hough v. Texas & Pacific R. Co., 100 U. S. 213, 218 (25 L. ed. 612); Texas & Pacific R. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707, 41 L. ed. 1136); Patton v. Texas & Pacific R. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361); Reese v. Philadelphia &c. Ry. Co., 239 U. S. 463 (36 Sup. Ct. 134, 60 L. ed. 384).

A careful examination of each of these cases discloses that in none of them was the question directly presented for decision, but that the court in each instance was speaking in mere general terms of the master’s duty, without thought of any such precise or nice distinction as is argued by counsel in their briefs in the case at bar. Perhaps we should qualify this statement to some extent in regard to the Barrett case. In that case the trial judge charged the jury that the plaintiff must show that the injuries sued for resulted from the failure of the master “to exercise ordinary care either in selecting such engine or in keeping it in reasonably safe repair;” but the court also charged the jury that “a railway company is bound to use ordinary care to furnish safe machinery and appliances for the use of its employees.” In passing upon exceptions to the court’s charge the United States Supreme Court said: “We think that these instructions laid down the applicable rules with sufficient accuracy and in substantial conformity with the view of this court.”

We do not think the defendant’s contention as to what would be a correct and exact statement of the duty referred to is necessarily sustained by any of the Federal cases cited, but, regardless of that, we have seen that each and all of the requested instructions were properly.refused for other reasons, and it is therefore unnecessary for this court to make any adjudication in regard to such master and servant rule in the present case. However, the writer, speaking only for himself, is of the opinion that the master is under the duty to exercise ordinary care to furnish a safe place, not merely a reasonably safe place, of work. The duty is not twice or doubly mollified. The master is not an insurer of his servant’s safety, it is true, but it seems he should at least exercise ordinary care to do that which an insurer would be bound to do, with respect to such matter. “The duty of a master to use ordinary care to keep his premises and to conduct his business in such manner that his servants may perform their duties in safety is but a phase of the broader and more anciently recognized doctrine of the common law, that every person who expressly or impliedly invites another to come upon his premises or to use his instrumentalities is bound to use ordinary care to protect the invited persons from injury.” Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706 (2) (62 S. E. 488). The duty to an invitee seems to be to exercise ordinary care to keep the premises safe, not reasonably safe. See, in this connection, Atlanta &c. Oil Mills v. Coffey, 80 Ga. 145 (4 S. E. 759, 12 Am. St. R. 244); Civil Code (1910), § 4420.

A further excerpt from the court’s charge, excepted to in the motion for a new trial, was the following: “This action is brought against the defendant on account of alleged negligence of the defendant, and is based upon a claim of negligence. Negligence is a failure to exercise legally required care. The defendant in this case was required to exercise ordinary care under all of the particulars as to which negligence is charged in the petition.” The assignment of error is directed mainly at the last sentence of this excerpt, the criticism being that it invaded the province of the jury upon the question of whether the acts and omissions characterized by the plaintiff as negligence should be considered such in fact. While the expression under consideration, or the like, is frequently found in charges to juries, we think it is inapt and perhaps confusing. It is not cause for a new trial, however, in the present case. It must have been perfectly plain to the jury, from the entire charge, that the defendant was not liable in the absence of negligence on its part, and that the existence or non-existence of such negligence was a matter for their exclusive determination from the evidence. For instance, the court in other portions of the charge instructed the jury as follows: that the burden was upon the plaintiff to show that the defendant was “negligent in all or some of the ways alleged in the petition, and failed to exercise ordinary care;” that it was for the jury “to decide, under all the evidence, whether a particular state of facts constituted negligence or ordinary diligence;” that if the defendant exercised ordinary care “in the maintenance of its road-bed, cut, bank, track walkers or patrol, and in the ways it is alleged to have been negligent,” the plaintiff could not recover; and that if the decedent’s death was merely the result of accident, without fault on the part of himself or the defendant, or the defendant’s employees, the defendant would not be liable. The court also charged the jury as follows: “The defendant in this case denies that he is guilty of any negligence. If the jury do not believe that the defendant was guilty of negligence in some or all of the particulars described in the plaintiff’s petition, plaintiff could not recover ; or, if the jury believes there was negligence in some or all of such particulars, but that such negligence did not contribute to the death of the decedent, the plaintiff could not recover. If you believe, under all the evidence and circumstances of the case, that the defendant exercised ordinary care and diligence for the safety of the decedent, the plaintiff could not recover. The defendant sets up in this case that it is not liable because it claims that it was not guilty of any negligence. It claims that any landslide or other obstruction on the track which may have caused the wreck of the engine, which the decedent was driving, occurred from causes beyond its control, and it says, therefore, that not being negligent in any of tbe respects alleged in the petition, it is not liable. In considering and deciding this case you should look solely to the evidence for the facts, and to the instructions of the court for the law of the case, and find your verdict accordingly, without any reference as to who is plaintiff or who is defendant. If the jury find, under the instructions given them in this case, that the defendant is not liable to the plaintiff, you would proceed no further in your investigation, and you would return a verdict for the defendant. If, on the other hand, upon applying the law as given you in charge by the court to the facts as you find them, you find that the defendant is liable, it would be your duty to assess the plaintiff’s damages in this case.”

The excerpt complained of, when considered in connection with the other instructions given, was not calculated to mislead the jury, and hence was not cause for a new trial. Davis v. Whitcomb, 30 Ga. App. 497 (13 b) (118 S. E. 488); Scarborough v. Walton, 36 Ga. App. 428 (2) (136 S. E. 830), and cit.

Two. of the special grounds of the motion for a new trial which are specially emphasized in this court are in reference to the court’s charge upon the subject of assumption of risk. It is insisted that while the judge gave to the jury certain general instructions upon this subject, he omitted to state the contention of the defendant that the decedent was killed by reason of a risk which he had assumed, and to instruct them that if this was true the plaintiff could not recover.

Assuming that the charge upon assumption of risk was so incomplete that it would have been erroneous, provided there was evidence to raise that issue, it is our opinion that the evidence wholly failed to present any question of assumption of risk for determination by the jury, and, thus, any alleged defects in the court’s charge upon such matter were harmless and immaterial.

It appears, from the evidence, that the decedent, throughout a period of many years, had made frequent runs over the particular track, and that in doing so he had had the opportunity of observing the height, slope, and nearness to the track of the embankment in question. According to some evidence it was not unusual for his train to stop at a siding near by; and upon such occasions the embankment stood immediately in front of him and in close view, so that he could have observed the character of the formations thereon. However, the question of the defendant’s negligence or diligence depended upon problems of construction and engineering, falling not within the line of decedent’s duty, but solely within the sphere of other departments, and as to which it was the duty of the defendant to exercise a reasonable degree of skill and judgment for the safety of the decedent and other employees, in the operation of its trains. The decedent was entitled to assume that the track and right of way were safe, in the absence of dangers either known or plainly observable by him.

While the evidence authorized the inference that the embankment in question was of such character and in such condition as to endanger the safety of the defendant’s employees, and that the defendant was negligent in failing to remedy or guard against the defect, there was absolutely no evidence to indicate that the decedent either knew of such danger or negligence or that the same should have been observable by him. The defect complained of was not an ordinary risk of the employment; and, as to whether the decedent should have assumed the risk of danger from the defendant’s negligence considered as an extraordinary hazard, it will be remembered that his duties were to operate his engine under the rules of the company, and not to check or review the work of those responsible for the safe condition of the track and right of way.

In Gila Valley &c. Ry. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229, 58 L. ed. 521), the United States Supreme Court said: “An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.” See also, in this connection, Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (6) (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475); Chicago &c. Ry. Co. v. Ward, 252 U. S. 18 (2) (40 Sup. Ct. 275, 64 L. ed. 430); Boldt v. Pennsylvania R. Co., 245 U. S. 441 (38 Sup. Ct. 139, 62 L. ed. 382); Duffey v. Consolidated Black Coal Corp., 147 Iowa, 225 (2) (124 N. W. 609, 30 L. R. A. (N. S.) 1067); Southern Ry. Co. v. Wessinger, 32 Ga. App. 551 (6) (124 S. E. 100).

We are satisfied that no question of assumption of risk was presented by the evidence and thus hold that no error was committed in the failure of the judge to instruct the jury more fully than he did upon that subject. See further, in this connection, C. & O. Ry. Co. v. Proffitt, 241 U. S. 462 (2) (36 Sup. Ct. 620, 60 L. ed. 1102); Chicago &c. Ry. Co. v. Bower, 241 U. S. 470 (2) (36 Sup. Ct. 624, 60 L. ed. 1107); Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451 (6) (16 Sup. Ct. 618, 40 L. ed. 766.); Central Vermont Ry. Co. v. White, 238 U. S. 507 (35 Sup. Ct. 865, 59 L. ed. 1433, Ann. Cas. 1916B, 252); Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 672 (18 Sup. Ct. 777, 47 L. ed. 1188); Choctaw &c. R. Co. v. McDade, 191 U. S. 64, 68 (24 Sup. Ct. 24, 48 L. ed. 96); Texas & Pacific Ry. Co. v. Swearingen, 196 U. S. 51, 61 (25 Sup. Ct. 164, 49 L. ed. 382). This ease is different in its facts from Southern Pacific Co. v. Berkshire, 254 U. S. 451 (41 Sup. Ct. 162).

We will not further prolong this opinion by a detailed discussion of the other grounds of the motion for a new trial. 'Suffice it to say that we have examined each ground of the motion in the light of the record and of the authorities cited, and it is our opinion that no reversible error was committed. The evidence was amply sufficient to establish liability, and the amount of the verdict ($16,000) was not excessive. The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    18601.
    Johnson v. Milam.
   Bell, J.

1. In this suit upon an account, in which the issue was whether certain persons who purchased the goods in behalf of the defendant and for his use were authorized by him to do so, there being evidence to show that the transactions were a continuation of a course of dealing in which like accounts were incurred by the same persons under like circumstances and were paid by the defendant, and that the agency of such persons to make tire purchases had never been questioned, a finding in favor of the plaintiff was authorized. Hogg v. Cole, 34 Ga. App. 120 (128 S. E. 222), and cit.

Decided September 1, 1928.

Terrell & Terrell, for plaintiff in error. E. T. Moon, contra.

2. Furthermore, there was independent evidence of agency in this case. “The agent’s authority will be construed to include all necessary and usual means for effectually executing it. Private instructions or limitations not known to persons dealing with a general agent can not affect them.” Civil Code (1910), § 3595.

3. The evidence authorized the verdict found for the plaintiff, and the court did not err in refusing a new trial.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


text:
    18606.
    Levinson v. Guggenheimer & Co. Inc., for use, etc.
    Decided September 1, 1928.

      ,E. E. Coates, Lawson & Ware, for plaintiff in error.

      J. H. Milner, contra.
   Bell, J.

1. “Under repeated rulings of the Supreme Court and of this court, where a verdict is directed and the losing party excepts to the overruling of his motion for a new trial but does not complain, either in the bill of exceptions or in the motion for a new trial, of the direction of the verdict, the reviewing court will consider, in this connection, only the question as to whether the verdict is supported by the evidence.” Watson v. Kvaternik Export Stave Co., 31 Ga. App. 146 (2) (121 S. E. 126); Head v. Towaliga Falls Power Co., 27 Ga. App. 142 (107 S. E. 558); Moore v. Butler, 150 Ga. 154 (3) (103 S. E. 154); Kelley v. Gartledge, 151 Ga. 179 (106 S. E. 93).

2. The evidence did not demand a finding in favor of the defendant upon either of the defenses pleaded, but authorized the verdict returned in favor of the plaintiff. The court did not err in refusing the defendant’s motion for a new trial based upon the general grounds only.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


author: Beil, J.

text:
    18641.
    REYNOLDS v. SPEER.
    Decided September 1, 1928.

      G. H. Parker, H. L. Williams, for plaintiff in error.

      Wade H. Watson, contra.
   Beil, J.

To a suit in the city court of Baxley upon a promissory note for $200, made by the defendant to the plaintiff in 1920, the defendant pleaded certain causes for set-off, arising out of an independent contract made between him and the plaintiff in the year 1921. The court struck the plea containing the items of set-off, and, the case then being in default, gave judgment for the plaintiff, and the defendant excepted.

The defendant’s answer, so far as material to the question for decision, was as follows:

“9. Further answering plaintiff’s petition, this defendant shows unto the court that on or about the 15th day of November, 1921, plaintiff and this defendant entered into a rent contract whereby this defendant was to have the use and privileges of the farm and building on what is known as the ‘ Jim Slater ’ place, situated near Piney Bluff on the Altamaha river in Appling county, Georgia. This defendant shows that said contract of rental between plaintiff and this defendant contained various terms and conditions, one of which was that certain compost situated on the farm rented by and taken possession of by this defendant was to be used on the farm by this defendant without any charge whatever for same, that this was part of the consideration of the rental contract made by and between them. This defendant alleges that by reason of the terms of said rent contract so made by plaintiff and defendant, that plaintiff was not only to furnish said compost, but that he was to furnish this defendant with a manure spreader for the purpose and to be used by this defendant in putting such fertilizer out to the corn crop upon which same was to be used. This defendant shows that there was a sufficient quantity of such fertilizer to have well fertilized thirty acres of corn which it was contemplated by both plaintiff and defendant same would be used upon. Defendant alleges that notwithstanding the fact that this defendant stood ready at all times to use said fertilizer as agreed upon by him and plaintiff, that by reason of the fact that plaintiff failed and refused to furnish said manure spreader as he contracted and agreed tó furnish that it was impossible for this defendant to spread said fertilizer, and as a result of same defendant was absolutely unable to use said fertilizer as he expected to do. Defendant shows that by reason of the fa ilure of plaintiff to furnish the manure spreader, and thus the inability of defendant to have the benefit and use of said compost, that the corn, consisting of about thirty acres, failed to produce anything like it should have produced by reason of the failure to use such fertilizer. Defendant shows that as a matter of fact the thirty acres of corn produced only about three bushels of corn, when as a matter of fact, with the same weather conditions, it would have easily produced the amount of six hundred bushels of corn had plaintiff complied with his part of the contract and furnished such spreader as he contracted to do. Defendant shows that it was impossible for him to secure the service of another manure spreader, and that it was further impossible for him to distribute said compost without the use of a manure spreader. This defendant alleges that by reason of such failure on the part of the plaintiff to furnish said spreader, that the yield of said corn was decreased to the extent of three hundred bushels, and that under the contract of rental existing between plaintiff and defendant that this defendant was to have one half of said corn so produced, making the amount of corn going to this defendant 150 bushels. Defendant alleges that said corn was worth the sum of eighty-five cents per bushel, making the sum of $127.50 loss sustained by this defendant by reason of the breach of said rental contract by plaintiff, and this defendant alleges that plaintiff is indebted to him in said sum of $127.50 by reason of the failure of plaintiff to carry out the terms of his contract with defendant with respect to furnishing such manure spreader.
“10. Further answering plaintiff’s petition, this defendant alleges that plaintiff committed a further breach of the rental contract herein referred to in that as a part of said contract plaintiff was to furnish this defendant certain brood sows for the purpose of raising hogs on shares, plaintiff and defendant under such contract were to divide the hogs so raised half and half. This defendant alleges that the plaintiff was to furnish wheat shorts for the purpose of feeding such sows and pigs, but this defendant alleges that while plaintiff furnished the brood sows as agreed upon that he failed to comply with his part of the contract in furnishing sufficient food for. keeping up such sows and their brood. This defendant alleges that by reason of such failure on the part of plaintiff to furnish such feed for said hogs that this defendant was damaged'in the sum of $135 by reason of such failure, defendant alleges that there were 90 pigs, the offspring of such brood sows, one half of which were the property of this defendant, and this defendant alleges that each of said hogs was damaged $3 per hog by reason of failure to have sufficient feed provided under the terms of their contract, making a total of $135 damages sustained by this defendant by reason of plaintiffs failure and refusal to comply with his contract in this respect.
“11. This defendant alleges further that plaintiff committed another breach of his contract of rental as herein referred to-, in that he failed to furnish this defendant with a drill or seeder as he was obligated to do under the terms of the rent contract existing between plaintiff and this defendant. Defendant alleges that while he in fact planted the oats and peas without a drill or seeder, that as a matter of fact it required two men instead of one to do this work, hence'this defendant was placed to an additional expense of $10, which expense he would not have been required to undergo had plaintiff complied with his contract and furnished such drill or seeder.”

We can not agree with counsel for the defendant in error in the suggestion that the assignments of error in the bill of exceptions are insufficient' to raise any question for decision.

The assignment was sufficient to present the question of whether the answer set forth any valid defense, and in our opinion the answer was good as against the motion to strike. This view is fully supported by the authorities cited in the headnotes.

Judgment reversed.

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


text:
    18651.
    BOLTON v. KEYS.

      Decided September 1, 1928.

      Porter & Mebane, for plaintiff in error.

      F. A. Cantrell, J. PL. Paschall, contra.
   Bell, J.

On August 27, 1923, a judgment was rendered in favor of Moses Keys and against J. E. Bolton. Tbe defendant’s property being levied upon, he filed an affidavit of illegality which the court struck in its entirety, and the defendant excepted. The affidavit was as follows: “Affiant has never had his day in court, was never served with any process or other notice of the pendency of the suit whereon said execution is based, nor did he waive jurisdiction, nor did he appear in or defend said suit. Affiant further says that on or about the -- day of January, 1923, he removed his home, family, and place of residence from Gordon county, Georgia, where he had formerly resided, to Lindale, in Floyd county, Georgia, where he has resided since said date until the present time, and that on the 5th day of July, 1923, affiant signed the following acknowledgment of service in the suit of MoseS Keys v. J. E. Bolton, in Gordon county superior court, being the same suit on which the execution against affiant now is proceeding illegally, was based in the following words, to wit: ‘Due and legal service acknowledged; copy, process and all other and further service waived. This July 5, 1923/ Affiant says that said execution based upon said suit and the acknowledgment of service of copy and process signed by affiant was no waiver as to the jurisdiction of Gordon superior court over affiant; that at the time of said acknowledgment of service he was a resident and citizen of Floyd count}; Georgia, and the superior court of Floyd county, Georgia, and the city court of Floyd county, Georgia, either or both had jurisdiction of both the subject-matter and the person of affiant, and that he has never waived jurisdiction in said suit. Affiant further says that said execution is proceeding illegally for the reason that at the time of said acknowledgment of service aforesaid the superior court of Gordon county, Georgia, had no jurisdiction over the person of affiant, and affiant did not waive jurisdiction nor did he appear in or defend said suit. Affiant says that said fi. fa. is proceeding illegally for the further reason that the suit on which said judgment was based was filed in the office of the clerk of the superior court of Gordon county, Georgia, on the 4th day of December, 1922, and process issued thereon, dated on said date, requiring affiant to be and appear at the next superior court to be held in and for Gordon county, Georgia, on the 4th Monday in February, 1923; that affiant did not acknowledge service of copy and process until the 5th day of July, 1923; that no service was had on affiant, neither did he acknowledge service of copy of process in time for said suit to be returnable to the February, 1923, term of Gordon superior court; that no order of the court was taken, making the May term, 1923, the next succeeding term of said court, the return term of said suit; that preceding the February nor May terms, 1923, of superior court of Gordon county, Georgia. was affiant served in any way with copy of suit and process, nor did lie waive same in any manner provided by law, and there being no service or acknowledgment thereof as provided by law, and within the time provided by law, at the February term, 1923, and there being no order extending the time of service to the May term, 1923, or any subsequent term of said court, that any judgment based upon said suit at any term of court subsequent to February term, 1923, was null and void, and the execution issued thereon and thereunder was issued and is proceeding illegally for said reasons.

“Affiant says said execution issued and is proceeding illegally for the further reason that the acknowledgment of service of copy and process signed by affiant on July 5, 1923, while said suit at said time, in the absence of proper orders of the court, was null and void, at most, even if said suit had been originally brought to the August term, 1923, of said court, and service acknowledged within the time provided by law, the August term, 1923, of said court was and would have been return term of saidsuit, and the November term, 1923, of said court would have been and was the first term after the August term, 1923, when judgment might have been taken against affiant, whereas judgment in said case was entered up and signed on the 27th day of August, 1923, by M. C. Tarver, judge of said court, being the first term of said court after acknowledgment of service by affiant, and for that reason said judgment issued thereon and the fi. fa. thereupon issued, based -upon said judgment, were null and void, issued illegally, and is proceeding illegally.”

On September 12, 1927, the court dismissed the affidavit of illegality by an order as follows: “Upon motion within affidavit is dismissed, it appearing defendant acknowledged service on February 5, 1923.”

The following statement was made by the judge in a note to the bill of exceptions: “F. A. Cantrell, attorney for Moses Keys* upon examination of original suit and J. R. Bolton’s acknowledgment thereon by court, stated in his place that he wrote the acknowledgment and it was February 5, 1923, and, although not before court’s eyes at time, the writ record of court discloses that the acknowledgment was recorded in superior court clerk’s office on February 5, 1923. Also issue docket discloses that case was marked in default May 5, 1923.”

In passing upon the ground of the affidavit of illegality dealt with in headnotes 1 and 2 it would have been necessary to determine the date of the acknowledgment of service, the affiant contending that the date was July 5, 1923, and the plaintiff in fi. fa. contending that it was February 5, 1923.

The court could not properly take judicial cognizance of the pleadings in the original case. In the case as made by the affidavit of illegality such pleadings could only be considered as evidence, and could not even be. considered as evidence until duly introduced and admitted as such. If the date of the entry is uncertain because of illegibility of the handwriting, this would constitute an ambiguity, and make a jury question. Civil Code (1910), §§ 4268 (1), 5789; Central Railroad &c. Co. v. Georgia Fruit &c. Exchange, 91 Ga. 389 (2) (17 S. E. 904); Doctor Shoop &c. Co. v. Clifford, 11 Ga. App. 491 (75 S. E. 822); Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800 (55 S. E. 923); Ferrell v. Hurst, 68 Ga. 132; Hicks v. Ivey, 99 Ga. 648 (26 S. E. 68).

Under the rulings set forth in headnotes 1 and 2, the affidavit of illegality was good upon its face, and the issue, even in case of a traverse, should have been tried before a jury, — subject, of course, to the power of the court to direct a verdict provided the evidence demanded a finding in favor of either of the parties.

In the opinion of this court, as indicated in the headnotes, the affidavit of illegality contained a further ground that was good. In the grounds of the affidavit of illegality, considered in headnotes 3 and 4, it would be immaterial whether the true date of the acknowledgment of service was February 5, 1923, or July 5, 1923. If the defendant, after the filing of the petition and before the entry of service, changed his residence to another county, the court thereby lost jurisdiction of his person, and such jurisdiction was not revived merely by the acknowledgment of service. It follows that if the allegations of the affidavit of illegality as to the want of jurisdiction because of the defendant’s removal from the county be true as made, the judgment ultimately rendered in the case would be void even though the acknowledgment of service was dated February 5, 1923, as stated by the court in the judgment dismissing the affidavit of illegality.

It is unnecessary to a,dd more to what is said in the headnotes.

Judgment reversed.

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


text:
    18674.
    HUMPHREY v. MERCHANTS & MINERS TRANSPORTATION CO.
    Decided September 1, 1928.

      Frederick A. Tuten, for plaintiff.

      Adams, Adams & Douglas, for defendant.
   Bell, J.

To a suit by J. C. Humphrey Jr. against Merchant and Miners Transportation Company the defendant filed general and special demurrers. The court sustained the general demurrer and dismissed the petition, not passing upon the special demurrers, and the plaintiff excepted.

The plaintiff in his petition made the following case: On August 18, 19S7, the plaintiff became a passenger upon the “Alleghaney,” “a passenger boat” used by the defendant for the carriage of passengers between Savannah and Baltimore and other points. The plaintiff was assigned to and occupied Stateroom No. 35; On August 19 the plaintiff “retired for the night, removing his clothing, and laying it on the bed or across the chair in said room, closing the door to said room. Next morning he awoke and found his door to said room open, his money, $18, which was in his pocket, gone, his watch worth $40, and watch chain worth $5, and a bill folder with $10 in bills and other valuables gone.” The plaintiff made complaint of his loss to the company’s agent both at Baltimore and at Savannah, but was in each instance informed that the defendant was not liable.

The petition charged that the defendant was negligent in certain particulars, and specified, among other things, that it was negligent in not keeping a night watch and in permitting the petitioner’s stateroom to be entered and his property taken therefrom, and in not furnishing the petitioner with a safe and secure stateroom into which robbers and thieves were not allowed or permitted to enter. The plaintiff claimed to have been damaged in the sum of $1,000, but all of this except $73, representing his actual pecuniary loss, was for humiliation .and embarrassment.

The test of the sufficiency of a petition is whether the defendant can admit all of the allegations thereof and escape liability. Citizens Bank v. Union Warehouse Co., 157 Ga. 434 (9), 454 (122 S. E. 327). Whether the defendant, as to the plaintiff’s personal effects referred to in the petition as having been lost, should be held to the same degree of responsibility as is imposed upon an innkeeper, or should be dealt with as a common carrier, are questions which we need not decide in the present case. Upon a reasonable construction of the petition, it is apparent that the pleader intended to allege that during the night, while the plaintiff was asleep, the property was stolen from his stateroom, the door of which was closed but not locked. Whether the defendant be treated as an innkeeper or as a common carrier of goods, it would at least be responsible to the plaintiff for the loss of such articles as the passenger might be reasonably expected to carry on his person, where the loss occurred as a result of the defendant’s negligence. Compare Pullman Palace Car Co. v. Martin, 95 Ga. 314 (95 S. E. 314, 22 S. E. 700, 29 L. R. A. 498). Under the rule laid down by the courts of New York, the owner of a steamship is responsible for the personal baggage of a passenger, except where the loss thereof is caused by the act of God or the public enemies. Hart v. North German Lloyd S. S. Co., 108 App. Div. 279 (95 N. Y. Supp. 733). The weight of authority, however, appears to be different, and in most States where the question has been decided it is held that unless the baggage has been delivered into the exclusive control of the carrier’s officers or agents it is not liable, unless the loss was due to the carrier’s negligence. 3 Hutchinson on Carriers (3d ed.), 1509-1514; 5 R. C. L. 176-186; 36 Cyc. 344; The R. E. Lee, 20 Fed. Cas. 519, 2 Abb. (U. S.) 49; Cohen v. Frost, 2 Duer (N. Y.), 335; Clark v. Burns, 118 Mass. 275 (19 Am. R. 456); Abbott v. William Bradstreet, 55 Me. 530; The Humboldt, 97 Fed. 656; Crystal Palace v. Valrderpool, 55 Ky. (16 B. Mon.) 302; American Steamship Co. v. Bryan, 83 Pa. 446. The determination of the true relationship and the question of liability in eases of this sort has apparently given trouble to many judges. See discussions in McKee v. Owen, 15 Mich. 115, in which the Justices were evenly divided and the judgment of the lower court was affirmed by operation of law. But since the petition in the present case contained allegations of negligence which were good and sufficient as against a general demurrer, there is no occasion here for an adjudication as to whether the defendant, as respects the articles lost, occupied toward the plaintiff the relation of an innkeeper, or of a common carrier of goods, or of an insurer in any capacity. In other words, since negligence on the "part of the defendant has been duly alleged, it is unnecessary to decide whether the defendant could be held liable in the absence of such averment. See, in this connection, Kates v. Pullman Co., 95 Ga. 810 (23 S. E. 186); Pullman Co. v. Hall, 106 Ga. 765 (32 S. E. 923, 44 L. R. A. 790, 71 Am. St. R. 293); Pullman Co. v. Green, 128 Ga. 142 (57 S. E. 233, 119 Am. St. R. 368, 10 Ann. Cas. 893); Payne v. Wilson, 28 Ga. App. 351 (111 S. E. 582); Atlantic Coast Line R. Co. v. Barksdale, 32 Ga. App. 643 (124 S. E. 362); Civil Code (1910), §§ 2731, 3508, 3509, 3511, 3530. In support of the statement that the petition, as against general demurrer, sufficiently alleged negligence on the part of the defendant, see The Western States, 159 Fed. 354, affirming 151 Fed. 929; Pullman Co. v. Schaffner, 126 Ga. 609 (55 S. E. 933, 9 L. R. A. (N. S.) 407); Kates v. Pullman Co., supra.

It was not necessary for the plaintiff to show in the first instance that he himself was not negligent, although if it affirmatively appeared from the petition that his loss was the result of his own fault the petition would, of course, be subject to general demurrer. However, the only act or omission of the plaintiff which could with any semblance of reason be charged as negligence was his failure to lock the door of his stateroom, this being a mere matter of inference; and, in the absence of notice of a rule of the defendant requiring him to lock the door, his failure to do so would not amount to negligence as a matter of law. Bohler v. Owens, 60 Ga. 185; Murchison v. Sergent, 69 Ga. 206 (3) (47 Am. R. 754).

The court did not err in holding that the petition failed to set forth any cause of action for humiliation and embarrassment, but did err in adjudging that it failed to show any right of recovery for the loss of the plaintiff’s money and effects as alleged. A complaint is not subject to general demurrer where it appears that the plaintiff is entitled to recover even a small part of the sum sued for. Napier v. Union Cotton Mills, 93 Ga. 587 (20 S. E. 80); Harris County v. Brady, 115 Ga. 767 (2) (42 S. E. 71).

The trial court having made no ruling upon the special demurrers, these are not for consideration by this court under the present writ of error. Willingham v. Glover, 28 Ga. App. 394 (2) (111 S. E. 206).

Judgment reversed.

Jenkins, F. J., and Stephens, J., concur.


author: Stephens, J.

text:
    18431.
    Christy Brothers Circus v. Turnage.
   Stephens, J.

1. There may be a recovery of damages for mental suffering, humiliation, or embarrassment resulting from a physical injury of which they are inseparable components. The ease of Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183), and eases following it, are distinguishable.

2. Any unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. See, in this connection, Civil Code (1910), § 4423; Goodrum v. State, 60 Ga. 509. The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.

3. Since the right 'to recover for a mental condition induced by the tortious act of another is dependent upon the existence of a physical injury, a person suffering a mental condition dependent upon an injury to the person may, in suing to recover damages for the injury, limit the damages to the mental suffering alone, and it is not essential to his right to the recovery of damages for mental suffering that the physical injury out of which the mental suffering arose was productive of any actual physical hurt or damage, or that he should seek a recovery for such actual physical hurt or damage.

4. Where a petition alleged that the plaintiff was an unmarried while lady, and that while in attendance as a guest of the defendant at a circus performance given by the defendant, and while seated in one of the seats provided by the defendant for the defendant’s guests at the circus, a horse, which was going through a dancing performance immediately in front of where the plaintiff was sitting, was by the defendant’s servant, who was riding upon the horse, caused to back towards the plaintiff, and while in this situation the horse evacuated his-bowels into her lap, that this occurred in full view of many people, some of whom were the defendant’s employees, and all of whom laughed at the occurrence, that as a result thereof the plaintiff was caused much embarrassment, mortification, and mental pain and suffering, to her damage in a certain amount, that the damage alleged was due entirely to the defendant’s negligence and without any fault on the part of the plaintiff, the petition set out a cause of action and was good as against a general demurrer.

Decided September 15, 1928.

G. W. Worrill, A. L. Miller, for plaintiff in error.

P. D. Rich, L. B. West, H. G. Rawls, contra.

5. Whether an amendment to the declaration in attachment, which alleged the plaintiff’s damage in a sum larger than the damage claimed in the affidavit as the basis for the- attachment, was or was not properly allowed, its allowance was harmless to the defendant since the amount recovered by the plaintiff was not greater than the amount claimed in the affidavit for attachment, and the verdict for the plaintiff is allowed to stand.

6. A charge that, under a hypothetical state of facts, an inference of negligence on the part of the defendant is authorized does not exclude the idea that a duty rests upon the plaintiff to exercise ordinary care to avoid the consequences of the defendant’s negligence.

7. Where the court instructed the jury that the duty rested upon the plaintiff to exorcise ordinary care, it was not error, in the absence of a special request and in the absence of a plea setting up the defense, for the court to fail to instruct the jury that the duty rested upon the plaintiff to exercise ordinary care to avoid the consequences of the defendant’s negligence.

8. The court having properly instructed the jury as to the relative rights of the parties under the pleadings and the evidence, it was not error to fail to give in charge the definition of a tort as contained in the Civil Code (1910), § 4423.

9. The court, fairly to the defendant, submitted all the issues presented. The evidence authorized the inference that the plaintiff was damaged, by reason of humiliation and embarrassment, in the sum of $500, and the verdict found for her in that amount was authorized.

10. It does not appear that the case was brought to this court for the purpose of delay only, and therefore the motion of the defendant in error to be allowed damages for delay is denied.

Judgment affirmed.

Jenlwns, P. J., and Bell, J., concur.


text:
    18439.
    Lewis v. Virginia-Carolina Chemical Co.
   Stephens, J.

Where the only issue presented under the pleadings is whether the obligation sued on was an obligation and undertaking by the defendant as a married woman in payment of or in satisfaction of a debt of her husband for fertilizers furnished by the plaintiff and delivered to tlie husband, the prior execution and giving by a third person of a promissory note to the plaintiff for the fertilizer, the execution and giving of which was exacted by the plaintiff as a condition precedent to the plaintiff’s furnishing the fertilizer, and the fact that the person executing and giving this note will have to pay it if the obligation sued on is not paid by the defendant, arc immaterial and irrelevant, and calculated to prejudice the defendant’s rights, and the court erred in admitting such facts in evidence over objection interposed by the defendant.

Decided September 15, 1928.

Wade E. Watson, for plaintiff in error. E. J. Lawrence, contra.

Judgment reversed.

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


text:
    18458.
    Electric City Brick Co. v. Minter.
   Stephens, J.

1. Where a contract provides that one of the parties is to furnish plans and specifications for construction work to be performed by the other party, and expressly limits the use of the plans to the particular construction work described, and where the party entitled to the use of the plans expressly agrees to confine the use of them to the construction work described, and agrees not to use them upon any other construction work than that described, this provision of the contract is not in restraint of trade and is not against public policy.

2. In a suit by the party furnishing the plans against the other party to the contract, to recover for the alleged breach by the defendant in using the plans and specifications in performing construction work other than that to which the use of the plans is limited by the contract, the petition, which set out these facts and alleged the plaintiff’s damage as being “the face value” of the plans in a designated sum for their use in the additional construction work, alleged a breach of the contract; and, assuming that the value of the plans was not the legal measure of the plaintiff’s damage, the petition nevertheless alleged a damage to the plaintiff. The petition therefore set out a cause of action and was good as against a general demurrer. Kenny v. Collier, 79 Ga. 743 (8 S. E. 58); Graham v. Macon, Dublin & Savannah Railroad Co., 120 Ga. 757 (5) (49 S. E. 75); Western Union Telegraph Co. v. Glenn, 8 Ca. App. 168 (68 S. E. 881); Whatley v. Cohen, 24 Ga. App. 514 (3) (101 S. E. 310); Sampson v. McRae, 29 Ga. App. 690 (8) (116 S. E. 651).

3. An amendment to the petition, which alleges damage to the plaintiff in the same sum as representing “the market value” of the plans, alleges the same measure of damages, and does not add a new and distinct cause of action, and does not convert the suit from one upon an express contract to a suit upon a quantum meruit.

Decided September 15, 1928.

Lee, Qongdon & Fulcher, for plaintiff in error.

Hammond & Kennedy, contra.

4. Applying the above rulings, the court did not err in overruling the demurrer.

5. Although, where the petition alleges the plaintiff’s damage in a certain sum as representing the market value of the plans, a failure to demur specially to this allegation upon the ground that the value of the plans does not represent the legal measure of damages does not adjudicate the plaintiff’s right to recover damages in the measure alleged, (Richmond Hosiery Mills v. Western Union Tel. Co., 123 Ga. 216) yet where there was introduced, without objection from the defendant, evidence as to the market value of the plans for use in the additional construction work, as alleged by the plaintiff as the measure of his damages, whether or not this was the legal measure of the plaintiff’s damages, the defendant can not complain that the court erred in instructing the jury that the plaintiff’s measure of damages was the market value of the plans for their use in the construction work other than that to which their use was limited by the contract.

6. The evidence authorized the inference that the defendant used the plans and specifications in the construction work to which their use was not limited by the contract, and that the value of the plans for the purpose used by the defendant in violation of the contract was in the amount found in the verdict for the plaintiff.

7. The verdict found for the plaintiff was authorized and no error of law appears. Judgment affirmed.

Jenlcins, P. J., and Bell, J., eoneur.


text:
    18542.
    Edenfield v. Youmans, administrator.
   Stephens, J.

1. This being a suit upon purchase-money promissory notes given for the balance due for land and a building thereon, purchased by the defendant at an administrator’s sale, and the defendant having-pleaded an abatement in an amount representing the alleged value of a side wall of the building and ten feet of land, which wall and land the defendant alleged had never been in the possession of the plaintiff, but which were included in the description in the deed to the defendant, and it appearing, under the law of this case as announced in Youmans v. Edenfield, 36 Ga. App. 529 (137 S. E. 288), as applied to the undisputed evidence, that the wall and the portion of the land sustaining the wall were in the possession of the plaintiff administrator at the time of the sale, but a portion of the ten feet of land at the time of the sale was not in the possession of the administrator, but was being held adversely by, and the title thereto was in, another person, and also it appearing from the evidence that, in the administrator’s advertisement of the sale of the property, the land and the building are described as fronting 60 feet, when in fact the building fronted only 50 feet, and the land in the possession of the administrator fronted only 50 feet, and the intestate had title to no more of the land than this 50 feet frontage, yet, it appearing without dispute that in the application for the sale, filed by the administrator with the ordinary, the property is described only as “one brick building,” and, from the defendant’s uncontradieted and undisputed testimony, she “expected to get the building and one half of the southern wall,” the evidence is undisputed that the administrator intended to sell, and the defendant intended to purchase, and the administrator sold and the defendant purchased, the building which fronted 50 feet and only the land covered by the building fronting only 50 feet, and that the defendant obtained all that she bought, and is therefore entitled to no abatement in the purchase price. See Youmans v. Edenfield, supra. The evidence here differs from that .in the first trial of this case (Edenfield v. Rountree, 33 Ga. App. 444, 126 S. E. 731), in that on that trial the defendant testified that she “was expecting to buy sixty feet of ground, the building and all.”

2. The production in court by the attorney for the defendant, in response to a notice to produce served upon him, of a paper constituting the notice for attorney’s fees required to be served under the provisions of the Civil Code (1910), § 4252, as a condition precedent to the maker’s liability for attorney’s fees contracted for in a promissory note, is evidence that the paper produced is in the possession, power, custody, or control of the defendant. The production of the notice for attorney's fees in response to a notice to produce is a circumstance which, when taken in connection with other testimony, is sufficient to authorize the inference that the defendant received the statutory notice for attorney’s fees required by law. It appearing that the written notice for attorney’s fees had been produced in court in response to a notice to produce served upon the defendant’s counsel, and that therefore it had been in the possession, power, custody, or control of the defendant, it was properly admitted in evidence.

3. The liability for attorney’s fees in a promissory note, being in its nature a penalty upon the maker for the failure to pay the note by a specified time, the notice required under the statute and its service upon the defendant within the required time as a condition precedent to such liability must be established by evidence authorizing with some degree of certainty and without ambiguity the inference that the required notice was given, and was given within the required time.

4. Where the only evidence tending to establish the service of the notice for attorney’s fees within the statutory period of- ten days before suit consisted of the testimony of counsel for the plaintiff that he deposited the notice in the mail, properly stamped and addressed to the defendant, “on a date early enough to reach her more than ten days before suit,” and the production in open court, by the attorney for the defendant, of the notice for attorney’s fees, in response to a notice to produce, but where it nowhere appears upon what date the notice was mailed, the evidence is a mere conclusion of the witness, and is insufficient to authorize the inference that the statutory notice required to be served upon the defendant as a condition precedent to her liability for attorney’s fees contracted for in the note was served upon her within the required period of ten days before the institution of the suit.

Decided September 15, 1928.

Rehearing denied September 28, 1928.

Kirkland & Kwklmd, for plaintiff in ¿rror.

Anderson & Trapnell, contra.

5. The evidence demanded the verdict found for the plaintiff in the amount of the principal and interest of the note sued on, but failed to authorize the verdict found for attorney’s fees. The judgment is affirmed, upon condition that, at the time the judgment of this court is made the judgment of the trial court, the plaintiff write off from the verdict the amount found as attorney’s fees, and, upon the failure of the plaintiff so to do, the judgment is reversed and a new trial granted.

Judgment affirmed on condition.

Jenlci/ns, P. J., and Bell, J., concur.


text:
    18565.
    Bainbridge Power Company v. Ivey.
   Stephens, J.

1. The lawful power to construct a dam and impound water does not carry with it the power to create a nuisance by the maintenance of foul and ill-smelling water in the pond and in the breeding- of mosquitoes, to the damage of persons living in the neighborhood of the pond. Holmes v. Atlanta, 113 Ga. 961 (39 S. E. 458).

2. A nuisance of the character indicated above, whether permanent or not, is nevertheless a continuing one, and there may be a recovery for all damage resulting therefrom occurring within the statutory period of limitation, notwithstanding the nuisance may have been created and may have arisen at a time prior to that period. Massengale v. Atlanta, 113 Ga. 966 (39 S. E. 578).

3. Liability for damages arising as a result of the maintenance of a nuisance is not dependent upon the existence of negligence upon the part of the person performing the act which constitutes the nuisance. Central of Georgia Railway Co. v. Amerious Construction Co., 133 Ga. 392 (65 S. E. 855); City of Macon v. Roy, 34 Ga. App. 603, 606 (130 S. E. 700). It is therefore no defense, in a suit to recover damages resulting from a nuisance as described in paragraph 1 above, that the defendant was not negligent as respects the maintenance of the pond in the condition indicated.

4 Where a nuisance is of a permanent character, a person suffering damage as a result of its maintenance may recover damages, past and prospective, resulting to him from the maintenance of the nuisance. Langley v. Augusta, 118 Ga. 590 (9) (45 S. E. 486, 98 Am. St. R. 133).

5. While a sum representing- a decrease in the market value of land damaged, when caused by the nuisance, may be recovered as an element of damages, yet where the decreased value of the land is not caused solely by the nuisance, but has been partly caused by a general slump and fall in land values from some other cause than the nuisance, this decrease in the value of the land, without an allowance being made for the decrease in value caused by the general slump in values caused otherwise than by the nuisance, does not represent the damages recoverable as a result of the nuisance. Where the plaintiff sought a recovery in damages representing a decrease in the value of his land, resulting from the maintenance by the defendant of a nuisance as described in paragraph 1 above, and there was evidence that after the creation of the nuisance there was a general slump and decline in the land values in the community, the court erred in charging as follows: “If you should find, from the evidence, that the value of the plaintiff’s property has been depreciated by the maintenance of this pond at any time prior to the 9th day of September, 1926 [the date when the suit was brought] for a period of four years theretofore, then he would be entitled to recover damages, and the measure of that damage would be the difference between the value of his land at the time that the injury thereto occurred and the present value, or the value at the time of the filing of his suit, and any prospective damage thereto by reason of the depreciation thereof because of such injury. Bear that in mind now, gentlemen. Look to the evidence and see what the land was worth at the time the injury ensued, and if you find that it was worth a certain sum, and if you find from the evidence that it is worth less than that sum at this time, then the plaintiff would be entitled to recover the difference as that element of his damages.”

6. Although the burden of proof does not rest upon the defendant and the defendant is not required by a preponderance of the evidence to establish his defense, yet should the defendant carry a greater burden than the law puts upon him and establish his defense by a preponderance of the evidence, the defendant is entitled to prevail. Therefore a charge by the court that the defendant should prevail if the evidence preponderates in his favor states a legal truism, and the giving of this charge is not error. Modern Woodmen of America v. Williams, 36 Ga. App. 359 (3) (137 S. E. 100).

7. Although a witness testifies that he is not familiar “much” with land values in the community in which is located the land in question, and that he “don’t fool with buying land,” yet where he testifies that he owns the land in question, that he bought it twenty-one years ago and has “lived there” since that time, that he considers himself reasonably familiar with the values of land at the time he bought the land, that he has heard of other people buying land, and has been hearing of sales in the community in which the land in question is located ever since he has been there, the witness shows a sufficient knowledge as to the value of the land in question to render admissible his testimony as to its market value six years prior to the date of his testimony. Civil Code (1910), § 5874.

8. While a contract made between the defendant who owned the pond which the plaintiff alleges was a nuisance, whereby the defendant agreed to take certain precautionary measures against the breeding of mosquitoes in the pond, may not have any value as fixing any legal duty upon the defendant to prevent the propagation of mosquitoes therein, its execution by the defendant possesses a probative value as tending to establish an admission by the defendant that the pond constitutes a breeding place for mosquitoes. Since the breeding of mosquitoes by the pond was a material fact in the case, evidence of an admission to this effect by the defendant was relevant to the issue. The contract therefore was properly admitted in evidence, and the probative value of the admission was, under all the circumstances surrounding the making of it, a question for the jury.

Decided September 15, 1928.

Rehearing denied September 28, 1928.

A. B. Conger, B. K. Wilcox, T. G. Connell, for plaintiff in error.

P. D. Rich, Chester A. Drake, contra.

9. Where, in a suit against the defendant to recover damages resulting from a nuisance, it was alleged as one of the elements of damages that the nuisance, which was a pond of water, had caused malaria in the family of the plaintiff, who lived near by, the testimony of a witness who had lived in the neighborhood of both the pond and the plaintiff’s land during the alleged continuance of the nuisance, that he moved away because he had “malaria fever,” was testimony to the effect that malaria was prevalent in the neighborhood, and was properly admitted.

10. Damage sustained by a father for the loss of the services of his minor child is damage to a property right, and a suit for damages thus arising may be brought within four years. Frazier v. Georgia Railroad & Banking Co., 101 Ga. 70 (28 S. E. 684); Civil Code (1910), § 4496.

11.. Except where error is indicated above, the court, fairly to the defendant, submitted all the issues to the jury, and no substantial error appears. Any inaccuracies in the charge, — as a reference to the pond as a “dam,” and instruction to the jury that they could look to “other facts and circumstances” besides the evidence, will doubtless be corrected upon another trial.

12. Since the right of the plaintiff in this action to recover damages representing both a permanent diminution in the value of his land and loss of services suffered by him by reason of the sickness of members of his family is not presented for determination, no decision is made thereon. See, in this connection, Towaliga Falls Power Company v. Sims, 6 Ga. App. 749 (65 S. E. 844); City Council of Augusta v. Lamar, 37 Ga. App. 418 (140 S. E. 763).

13. The court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    18600.
    Caldwell v. Life & Casualty Insurance Co.
   Stephens, J.

1. Where an accidental-death benefit policy provides for the furnishing of a written proof of loss within a stated period, and there is nothing in the policy which, in the event that another policy in the same company covers the same loss upon the same person, requires the furnishing of a separate proof of loss upon each policy, the furnishing to the company of a proof of loss under the second policy will suffice, provided the proof so furnished substantially conforms to the requirements as to proof of loss in the first policy. 37 C. J. 558; Girard Life Insurance Annuity & Trust Co. v. Mutual Life Insurance Company of New York, 97 Pa. 15; Bohles v. Prudential Insurance Co., 83 N. J. L. 246 (83 Atl. 904), affirmed in 84 N. J. L. 315 (86 Atl. 438).

2. In a suit by the beneficiary under the first policy to recover for the accidental death of the insured, where the policy provides that upon a failure of the insurance company to furnish to the claimant, within a certain period, forms for the making of the proof of loss, the claimant will be deemed to have complied with the requirements of the policy as to proof of loss upon submitting, within the time fixed in the policy for furnishing the proof of loss, which was within ninety days after the “date of such loss,” “written proof covering the occurrence, character and extent of the loss,” and where it appears from the petition that no proof of loss was filed under the policy, but within this period there was furnished to the company, under an industrial-insurance policy covering the same loss, issued by the same company, a written proof of the same loss, containing information “covering the occurrence, character, and extent of the loss,” and there is no provision in the policy sued on covering the furnishing of a separate proof of loss, it appears from the petition that the provision of the policy sued on, as respects the furnishing of a proof of loss, has been complied with.

3. Where the policy sued on, under which the plaintiff as beneficiary thereunder is seeking to recover for the accidental death of the insured, requires that “written notice of injury on which claim may be based, must be given to the company within twenty days after date of the accident causing such injury, [and] in the event of accidental death immediate notice thereof must be given to the company,” and that a failure to give this notice “within the time provided” shall not invalidate any claim “if it should be shown not to have been reasonably possible to give such notice and that notice was given as soon as reasonably possible,” it is a question of fact as to whether such notice, when given to the company three days after the accident which caused the death of the insured, was given within a reasonable time as provided in the policy.

4. Where the policy does not require a compliance with the provision as to immediate notice to the company of an accident causing an injury to the insured as a condition precedent to a recovery under the policy, a failure of the company to receive such notice within the time required under the policy will not operate to prevent a recovery on the policy unless the company’s failure to receive the notice within the time required was injurious to the rights and interests of the company under the contract as contained in the policy. Where actual notice of the accident which caused the death of the insured was received by the company within three days after its occurrence, and the company’s agent came to investigate the claim before the rendition of a verdict by the coroner’s jury which investigated the cause of the death of the insured, and where the company settled with the beneficiary under another policy upon the life of the insured, although it was not an accident policy, but an industrial insurance policy, an inference is authorized that, if the company failed to receive notice of the accident within the time required by the policy, the failure of the company to receive the notice within the time required was not injurious to the rights and interests of the company under the contract as contained in the policy.

Decided September 15, 1928.

William E. & Gordon Maim, for plaintiff.

Maddox, Maddox & Mitchell, for defendant.

5. The plaintiff’s petition, with the two amendments thereto allowed, set out a cause of action, and the court erred in sustaining the demurrers thereto. Judgment reversed.

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


text:
    18654.
    National Life & Accident Insurance Co. v. Weaver.
   Stephens, J.

1. Where a life-insurance policy provides that “unless otherwise stated in the ‘ space for endorsements ’ in a waiver signed by the president or secretary, this policy is void if . . any policy on the life of the insured has been issued by this company and is in force at the date hereof, unless this policy contains an endorsement signed by the president or secretary that such prior policy may be in force,” there can be no waiver of this provision of the policy by reason of the conduct of the company after notice of the existence of a policy in the company on the life of the insured at the date of the issuance of the policy, unless the notice is given to the president or secretary of the company or to some agent of the company authorized to waive the condition. Where the policy also expressly provides that it contains the entire agreement between the company and the insured, and “its terms can not be changed or its conditions varied, except by written agreement, signed by the president or secretary of the company, [and] no other agent or employee shall have the power to make or alter contracts, [or] waive forfeitures,” notice to any agent of the company other than the president or the secretary, — as a local soliciting agent or manager in charge of a local agency, who is not shown to have any authority, in behalf of the insurer, to make or alter contracts, — is not notice to an agent of the company having authority to waive the provisions of the policy. New York Life Insurance Co. v. Patten, 151 Ga. 185 (106 S. E. 183); Mutual Life Insurance Co. v. Blount, 165 Ga. 193 (140 S. E. 496); American National Insurance Co. v. Floyd, 34 Ga. App. 541 (130 S. E. 531); American National Insurance Co. v. Potts, 35 Ga. App. 32 (132 S. E. 142).

Decided September 15, 1928.

Hammond & Kennedy, for plaintiff in error.

Lon Lamwr Fleming, contra.

2. Where the policy provides also that “the company shall not be presumed or held to know of . . any previous policy unless such fact . . shall be expressly shown in the application, and the issue of this policy shall not be deemed a waiver of this condition,” the mere fact that at the date of the issuance of the policy there was in existence in the same company a policy on the life of the same insured was, in the absence of -knowledge of this fact by the president or the secretary, or some officer of the company with authority to alter contracts, insufficient as notice which would serve as the basis for a waiver by the company of the provisions of the policy. Were this otherwise, the provision in the policy which voids it by reason of the existence of another policy in the same company upon the life of the same insured would be meaningless and a mere nullity.

3. This being a suit by the beneficiary against the insurer to recover under the policy for the death of the insured, and there being, on the policy sued on, no endorsement of a waiver of the existence, at the date of the issuance of the policy, of a pre-existing policy in the same company upon the life of the insured, and it not appearing that the president or the secretary of the company, or some officer of the company with authority to alter contracts had ever had knowledge of the existence of the other policy, and the fact of its existence not appearing in the application, the verdict found for the plaintiff was, under the above rulings, unauthorized. See Home Friendly Society v. Berry, 94 Ga. 606 (21 S. E. 583); Life Insurance Co. of Va. v. Fitzgerald, 143 Ga. 725 (85 S. E. 913).

4. The above rulings being controlling, it is unnecessary to pass upon any of the special assignments of error.

Judgment reversed.

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