text:
    17282.
    Turner v. Dempsey.
    Decided October 13, 1926.
    Damages; from Fulton superior court — Judge Humphries.' March 3, 1936.

      Paul S. & Anton L. Etheridge, for plaintiff in error.

      Mayson & Johnson, Bolert T. Efurd, contra.
    Landlord and Tenant, 36 C. J. p. 208, n. 90; p. 253, n. 47.
   Jenkins, P. J.

The petition as amended alleged: that the plaintiff, as the tenant of the defendant, was seriously hurt and injured by reason of the front steps of the rented premises giving way when being used by her for the purposes and in the manner intended; that the strips supporting the steps were of unsound material, were tacked on by small shingle-nails, and were insufficient to sustain the weight of the steps at the time a person was using them in the ordinary and proper way; that such defective construction was unknown to her and could not be ascertained by a casual inspection, but was in fact actually known by the defendant, who had personally done the work of construction and repair just prior to the plaintiff’s entry upon the premises. The jury found a verdict in favor of the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted. Held:

1. While a landlord is not liable for injuries to his tenant arising from a patent defect in the premises existing at the time of the lease, and of which the tenant knew or had means of knowing, equal to those of the landlord, he is liable for injuries to the tenant arising from latent defects unknown to the tenant, existing at that time, provided the landlord actually knew,, or in the exercise of ordinary care on his part might have known, of their existence. McGee v. Hardacre, 27 Ga. App. 106 (105 S. E. 451).

2. It appearing from the evidence, that the landlord must necessarily have known of the condition of the steps, for he had himself made repairs thereon not long previous to the injury, and the jury being authorized to And that the defect occasioning the injury was not such as the plaintiff by casual inspection must necessarily have become acquainted with, the verdict in her favor can not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    17329.
    Vaughn v. Bank of Toccoa.
    Decided October 13, 1926.
    Affidavit of illegality of execution; from Franklin superior court —Judge W. L. Hodges. February 20, 1926.

      W. B. Little, for plaintiff in error.

      George L. Goode, contra.
    Exemptions, 25 O. J. p. 159, n. 10.
   Jenkins, P. J.

“In order to maintain a claim to chattels which is founded solely on the contention that they are the product or increment of duly exempted personalty, it is incumbent upon the claimant to prove . affirmatively that the subject-matter of the claim was obtained in exchange for exempted property or the proceeds thereof, or by labor exerted in connection with the use or consumption of such property, so that the newly acquired personalty could with fairness and reason be said to take the place of that which had been set apart.” Culver v. Tappan, 113 Ga. 525 (38 S. E. 944).

It indisputably appearing that the personal property levied upon consisted largely of property acquired from a source independent of the proceeds of the homestead, and the defendant in fi. fa. having failed to show which part, if any, of the property levied upon represented the proceeds of the homestead, the verdict sustaining the levy was demanded by the evidence. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17347.
    Harvey v. Long Cigar & Grocery Company.
    Costs, 15 C. J. p. 311, n. 94 New; p. 313, n. 39 New.
   Jenkins, P. J.

Where a judgment in favor of a claimant was reversed by the appellate court, and the judgment of that court was made the judgment of the court below, and an execution for the costs incurred in the proceeding in the appellate court was issued against the claimant and the sureties on the forthcoming bond, the fact that the judgment on the remittitur included the sureties as liable with the claimant for such costs did not render that judgment and the execution founded thereon illegal so far as the claimant was concerned. Ray v. Atlanta Banking Co., 110 Ga. 305 (6) (35 S. E. 117). Accordingly, on the trial of an affidavit of illegality interposed to a levy of the execution upon the property of the claimant, the court correctly held that tfrfe execution was proceeding legally so far as the claimant was concerned.

Nor was the levy under such an execution, issued in the name of the plaintiff for the use of officers of court, subject to be arrested by affidavit of illegality on account of its being made to appear that the attorney for the plaintiff had advanced the' costs incurred in the appellate court. Civil Code (1910), § 6210.

The ground that the execution was proceeding illegally for the reason that it appeared that the appellant had not actually paid the costs is without merit, .especially since the execution was on its face proceeding for the benefit of the officers.

Decided October 13, 1926.

Affidavit of illegality of execution; from city court of Oglethorpe —Judge Greer. February 23, 1926.

J. J. Bull & Son, for plaintiff in error.

Jule W. Felton, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17390.
    HENNON v. STATE OF GEORGIA.
    The evidence for the State, when considered with the conflicting statements .of the intervenor claiming ownership of the automobile, was sufficient to authorize a finding that the car had not been stolen from the intervenor, as alleged, but was being used by him at the time of the seizure, and that he must necessarily have been aware of its illegal use at that time for the transportation of liquor.
    Intoxicating Liquors, 33 C. J. p. 687, n. 78.
    Decided October 13, 1926.
    Confiscation under liquor law; from city court of Polk county— Judge Tison. April 6, 1926.

      Smith, Hammond & Smith, Porter & Mebane, for plaintiff in error.

      J. A. Wright, solicitor, contra.
   Jenkins, P. J.

This was a proceeding for the condemnation of an automobile seized in Polk county ab.out two and a half miles west of Cedartown, on what is known as the Esom Hill-Cedartown road, and which, at the time of its seizure, contained twenty-two gallons of whisky. At the time the car was seized the person or persons in charge of it had fled; and the proceeding was against the car in rem. The plaintiff in error, by intervention, claimed ownership of the car, and by his testimony showed that the car’ seized bore the saíne license number as a similar car which had been owned and possessed by him, and which he testified was stolen from his residence in Floyd county, about two and a half miles east of Lindale, and seven and a half miles from Rome, on the night of the seizure. He further testified that after leaving his car near his residence on the night of.the seizure he spent the entire remainder of the night at his home. On the trial of the intervention there ivas evidence for the State going to show that about 1:15 o’clock a. m. on the night of the seizure the intervenor called at the home of a witness who lived about five miles east of Cedar-town and telephoned to Rome for a taxicab, stating over the telephone that his car had broken down “on the other side of Ced_artown.” This testimony as to the intervenor’s presence in Polk county near where the car was seized and the admission over the telephone as to his previous whereabouts was denied by the intervenor. The judge, to whom the case was submitted without a jury, found against the intervenor, and sustained the condemnation proceeding, and the intervenor excepted.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17408.
    ATLANTIC COAST LINE RAILROAD CO. v. MITCHELL COUNTY.
    An action against a county, brought in 1923, to recover taxes alleged to have been illegally levied and collected in 1919, and alleging that a month before the filing of the suit a demand that the taxes so collected be refunded was made upon the county authorities and refused, was barred, under section 411 of the Civil Code (1910), which provides that “all claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability.”
    Payment, 30 Cyc. p. 1316, n. 14.
    Taxation, 37 Cyc. p. 1186, n. 93.
    Decided October 13, 1926.
    Complaint'; from Mitchell superior court — Judge Custer. April 12, 1926.

      Bennet & Peacock, Gardner & Gardner, for plaintiff.

      E. M. Davis, for defendant.
   Jenkins, P. J.

1. Assuming, but not actually deciding, that the payment of illegally levied taxes, induced by materially mistaken representations of fact by the county authorities as to the .status of the claim, is not such a voluntary payment as would preclude its being recovered back under the provisions of the Civil C.ode (1910), § 4317 (see, in this connection, 30 Cyc. 1316 (14); 2 R. C. L. 784 (12); 21 R. C. L. 164, 165; 15 Am. & Eng. Enc. Law (2d ed.), 1103 (7); Betz v. City of New York, 119 App. Div. 91 (103 N. Y. Supp. 86); 193 N. Y. 625, 86 N. E. 1122), and likewise assuming that' one seeking such recovery i§ not limited to the procedure outlined by section 526 of the Civil Code, it is nevertheless true that an action brought in the year 1923 for the recovery of taxes alleged to have been illegally levied and collected in the year 1919, and setting forth that demand for such refund had been made upon the county authorities and by them refused a month previous to the filing of the suit, is barred under section 411 of the Civil Code, which provides that “all claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability.” Under this section a cause of action against a county such as can be recovered upon does not exist unless the claim has been presented within twelve months after its accrual. While it has been held that in the absence of any previous presentation of such claim, a suit filed within twelve months after the accrual of the claim amounts in itself to a compliance with the requirement as to the presentation of the claim, in the instant case both the presentation of the claim and the filing of the suit were long subsequent to the expiration of the limitation provided by the statute, which can not be taken to mean that the limitation thereby established can be tolled by deferring the presentation of the claim, when by the terms of the statute itself such presentation must be made within twelve months from the time the claim accrued or became payable.

2. Under the foregoing ruling, the court did not err in sustaining the demurrer to the petition as amended.

Judgment affirmed.

Stephens and Bell., JJ., concur.


text:
    17414.
    Barrett v. Miller.
    Sales, 36 Cyc. p. 362, n. 45; p. 394, n. 97; p. 461, n. 59; p. 465, n. 92.
   Jenkins, P. J.

1. A sale of stolen property by one who has acquired it in good faith to another bona fide purchaser does not divest the true owner’s title. Giles v. Citizens Ins. Co., 32 Ga. App. 207 (122 S. E. 890).

Decided October 13, 1926.

Complaint; from White superior court — Judge J. B. Jones. April 13, 1926.

C. H. Edwards, B. P. Gaillard Jr., for plaintiff in error.

A. H. Henderson, W. N. Oliver, contra.

2. The vendor of personal property is presumed to impliedly warrant tlie title thereto. Civil Code (1910), § 4135; Malsby v. Widincamp, 24 Ga. App. 737 (1) (102 S. E. 178).

3. In an action by a vendee of personal property on the vendor’s implied warranty, where it appeared that under a judgment against the vendee in a suit of the true owner the vendee had been compelled to surrender possession of the property, the court did not err in admitting in evidence the judgment adverse to the vendee’s title, where it appeared, without objection and without dispute, that the vendee had notified the vendor of the pendency of that proceeding, and that the vendor, instead of making a defense to it, told his vendee that “when they prove it was a stolen car” he would gladly refund the purchase price, and where it appeared that with full notice of the pendency of the suit, and being actually present at the trial thereof, the vendor permitted judgment to be rendered against his vendee. In such a case, under the provisions of section 5821 of the Civil Code (1910), the judgment was conclusive upon the party thus vouched, as to the amount and the right of the plaintiff to recover in the former suit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17492.
    Holloman v. Baird.
    Decided October 13, 1926.
    Rehearing denied November 15, 1926.
    Petition for certiorari; from Fulton superior court — Judge Humphries. May 27, 1926.

      Charles W. Anderson, for plaintiff in error.
    Courts, 15 O. J. p. 987, n. 61.
   Jenkins, P. J.

1. “While the municipal court of Atlanta has jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not differ from that of the justice’s courts.” Walker v. Cliff Drug Co., 23 Ga. App. 722 (2) (99 S. E. 392).

2. In the instant case, which was a suit begun by summons directed against the defendant, in the municipal court of Atlanta, for the sum of $23, “house rent for month of February, 1925,” the summons contained sufficient data to authorize an amendment curing the alleged defects of omission.

3. The court did not err in refusing to sanction the petition for certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17498.
    Lucas v. Cornett.
    Decided October 13, 1926.
    Rehearing denied November 15, 1926.
    Trover; from Crawford superior court — Judge Malcolm D. Jones. April 30, 1926.

    Application for certiorari was denied by the Supreme Court.
    Pledges, 31 Cyc. p. 848, n. 71.
    Replevin, 34 Cyc. p. 1508, n. 66.
    Sales, 35 Cyc. p. 703, n. 71; p. 707, n. 11.
   Jenkins, P. J.

1. “In a trover suit for the recovery of property the title to which the plaintiff holds as security for a debt, the measure of damages where plaintiff elects to take a money verdict' is either the highest proved value of the property between the date of conversion and the trial, or the value of the property at the date of conversion, with interest or hire thereon, subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security.” Benton v. Harley, 21 Ga. App. 168 (2) (94 S. E. 46); Levy v. American Wholesale Co., 32 Ga. App. 103 (2) (122 S. E. 808).

2. While it appears, from the evidence, that the demand made in Florida upon the defendant for the property sued for, prior to the filing of the suit in trover, was conditional, it nevertheless further appears from the defendant’s own testimony that a subsequent unconditional demand upon him for the property sued for was made in Georgia. Accordingly the charge of the court to the effect that if the plaintiff made a demand upon the defendant for the property, and the defendant refused to deliver the property to the plaintiff and held and used it for his own benefit, there was a conversion under the law, and that the plaintiff would be entitled to recover the value of the property at that time, the plaintiff having elected to take a money verdict, was not error for the alleged reason that no demand had been proved.

3. It appearing, from the evidence, that after the filing of the suit in trover an agreement was made between the plaintiff and the defendant, whereby the defendant agreed to pay the plaintiff a stipulated sum as the value of the property sued for, or, in default thereof, to deliver the property to him, which he failed to do, and it further appearing that a greater balance than this stipulated sum was due on a title-retention note executed by the defendant for the same’ property, the verdict for the plaintiff in the amount of this sum, less a payment subsequently made, was supported by sufficient proof of the value of the property. Levy v. American Wholesale Co., supra.

4. The defendant’s objection to the introduction of the title-retention note, that it had been transferred to a third person, was properly overruled, it appearing from the plaintiff’s testimony that the transfer was made for the purpose of depositing the note as collateral security, and .that the debt thus secured had been paid and that the note was the property of the plaintiff.

5. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Homer Beeland, for plaintiff in error.

LeSueur, Garrett & LeSueur, contra.


text:
    17508.
    McRae v. Federal Land Bank of Columbia.
    Decided October 13, 1926.
    Complaint; from Montgomery superior court — judge Graham. May 8, 1926.

      M. B. Calhoun, for plaintiff. L. C. Underwood, for defendant.
    Bills and Notes, 8 O. J. p. 415, n. 70; p. 416, n. 71; p. 417, n. 86, 91; p. 418, n. 4, 5, 6 New.
   Jenkins, P. J.

1. It is competent for parties to a promissory note to provide that in case default is made in the payment of any installment of principal or interest when due, or in the payment, when due, of the taxes on the property by which the note is secured, the whole amount, both principal and interest, shall at once become due and payable, or to provide that in such event the whole amount, both principal and interest, may, at the option of the holder of the note, become at once due and payable.

2. Where the instrument does not provide that in case of default the amount remaining due thereon shall at once become due and payable, but provides merely that in case of such default the entire amount may, at the option of the holder, become at once due and payable, if the arrears are paid and accepted prior to such election on the part of the holder his right to exercise the option would thereupon become extinguished; but if such an election is declared prior to the tender of such arrearage (and the giving of the statutory notice of intent to sue for attorney’s fees is sufficient evidence of such an election, — Harris v. Powers, 129 Ga. 74 (6), 58 S. E. 1038, 12 Ann. Cas. 475), the rights of the parties are the same as if the entire nóte had by its terms become due immediately upon default, without such an election. In either of such eases, the 'entire debt being then due, the mere acceptance of part payment thereon would not amount to a waiver of the prior default or undo the maturity of the remainder of the indebtedness and set it forward to the dates .originally fixed therefor under the terms of the original contract. Gilford v. Green, 33 Ga. App. 1, 4 (125 S. E. 80), and cases there cited; Pape v. Woolford Realty Co., 35 Ga. App. 284 (134 S. E. 174). The fact that after the entire indebtedness had been declared due, the holder may have offered -to reinstate the contract on certain conditions, which were not complied with, would not operate to change the ruling stated.

3. The court properly allowed the amendment setting forth nonpayment of taxes as an additional ground for accelerating the maturity of the note sued on, and for this additional reason the action of the court in directing a verdict in favor of the plaintiff was in accordance with law.

Judgment, affirmed.

Stephens and Bell, JJ., concur.


text:
    17512.
    CONYERS v. LUTHER WILLIAMS BANKING COMPANY.
    1. The act approved August 7, 1925 (Ga. L. 1925, p. 463), providing, as the exclusive method of reviewing a judgment of the municipal court of Macon refusing to grant a new trial, in any case in which the principal sum claimed or the value of the property in controversy exceeds one hundred dollars, a writ of error to the Court of Appeals, and further providing that a bill of exceptions shall be tendered within ten days from the judgment complained of, even if constitutional, does not apply to a judgment rendered more.than ten days prior to the approval of the act, since, even construing the act to be remedial in its nature, its application in such a case would be such as to render nugatory the complaining party’.s rights thereunder, and to deprive him of the right to avail himself of a method of review theretofore existing. Searcy v. Stubbs, 12 Ga. 437 (2); Lockett V. Usry, 28 Ga. 345 (3).
    2. Accordingly, the court erred in dismissing the petition for certiorari.
    Courts, 15 O. J. p. 1039, n. 57 New.
    Decided October 13, 1926.
    Rehearing denied November 15, 1926.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. March 3, 1926.

      Luther U. Bloodworth, for plaintiff in error.

      D. L. Churchwell, contra.
   Jenkins, P. J.

Judgment was rendered adversely to the plaintiff in error by the municipal court of Macon on July 14, 1925; she filed a motion for new trial in accordance with the provisions of the act creating that court; the motion was overruled July 22, 1925, and her petition for certiorari was presented to the judge of the superior court and sanctioned by him on August 14, 1925. On August 7, 1925, the act of the General Assembly re-enacting section 26 of the act of 1913 (Ga. L. 1913, p. 252), creating the municipal court of. Macon, was approved by the Governor. This act provides that “from the judgment of said municipal court, city of Macon, refusing to grant a new trial, or making final disposition of any case, in which the principal sum claimed, or the value of the property in controversy, exceeds one hundred dollars, an appeal shall lie to the Court of Appeals of Georgia by writ of error, and a bill of exceptions shall be tendered, certified, and filed, under the same rules as apply to bills of exceptions from the superior courts of this State; provided, however, that the bill of exceptions shall be tendered within ten days from the judgment complained of and served and filed within ten additional days.” The act further provides that the method of review therein provided shall .be exclusive of all other methods provided for by law, including the constitutional writ of certiorari. TJpon the hearing of the petition for certiorari, on motion of counsel for the defendant in error the petition was dismissed, upon the ground that the writ of certiorari from the municipal court of Macon had been abolished by the act of 1925 quoted above. The plaintiff in error carried the case to the Supreme Court, contending in that, court that the trial court erred in dismissing the petition for certiorari, upon the ground that the act of 1925 was unconstitutional and in conflict with various provisions of the constitution set out and enumerated, and that the act of 1925 quoted above had no application to the instant case, for 'the' reason that it had been disposed of prior to the approval of the act, and that to apply the act to this ease would make the law retroactive in its effect. The Supreme Court transferred the case to this court, holding that the constitutionality of the act of 1925 was not involved, for the reason that the constitutional questions were not raised in the court below or passed upon by that court, and such questions, therefore, were not properly before the Supreme Court for decision (162 Ga. 350, 133 S. E. 862), thereby leaving, as the only question for determination by this court, whether or not the act of 1925 applies to the instant case.

Judgment reversed.

Stephens and Bell, JJ., concur.

ON MOTION FOR REHEARING.

On motion for rehearing the contention is made that the court overlooked the principle of law enunciated by the Supreme .Court in the ease of Memmler v. State, 75 Ga. 576, in which it was held that “if a certiorari was properly dismissed, the judgment will not be reversed, though the court based it upon an erroneous reason.” The argument of counsel for the defendant in error is that the evidence demanded the finding against the claimant, and that the result effected by the dismissal of the, certiorari'should not be disturbed, although the dismissal was planted upon an erroneous reason. Assuming (without deciding) that in a case such as the instant one, where the judgmént of the court below shows on its face that the case was dismissed .for.alleged lack of jurisdiction, with no decision at all by the judge on the question of evidence, the principle of the Memmler case would have application, we are unable to agree with the contention of the defendant in error that the evidence was such as to demand the finding in favor of the plaintiff in fi. fa. and against the claimant, so as to deprive the judge of the superior court of the discretion vested in him by law. It appears from the evidence that the claimant wife had bought certain portions of the property levied upon under the fi. fa. against her husband out of her monthly allowance from her husband’s salary about six years or more prior to the issuance of the fi. fa. against the husband, the date of the fi. fa. being the only indication disclosed by the record as to when the debt against the husband was created. Rehearmg denied.


text:
    17519.
    Camp, administratrix, et al. v. Lanier.
    Decided October 13, 1926.
    Complaint; from Barrow superior court — Judge Stark. December 2, 1925.
    G. A. Johns, for plaintiffs in error. Rollin H. Kimball, contra.
    Appeal and Error, 4 C. J. p. 809, n. 32, 34.
    Continuances, 13 C. J. p. 123, n. 14; p. 141, n. 53.
   Jenkins, P. J.

1. “This court will not control the discretion of the trial judge in granting or refusing a continuance of a case, unless it be made to appear that ho has abused the discretion vested in him by law.” Porter v. Porter, 17 Ga. App. 456 (87 S. E. 707). Where a motion to continue was based upon the certificate of a physician as to the condition of a party, and the certificate was- vague and indefinite, in that it stated nothing as to her physical condition or when the physician had last examined her, but'stated merely that he was “attending” her and that she would not be in condition to leave the house for “several days,” and where the case was continued for a day, in order that she might have opportunity to perfect the showing for continuance, and she failed to do so, and where it appears from the order of the court that at two previous terms the case had been continued on account of her absence, it can not be said that the refusal to grant an additional continuance amounted to an abuse of the discretion vested in the court by law. Civil Code (1910), §§ 5710, 5717.

2. The court did not err in overruling the motion for a new trial, the only ground insisted upon being the refusal of the judge to grant the continuance. Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    16587.
    Lasseter v. O’Neill.
    Decided October 16, 1926.
    Complaint; from city court of Floyd county — Judge Bale. May 26, 1925.
    The Supreme Court in this case held, that “An agreement for the purchase and sale of cotton on margin, commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time.of the settlement,’ though it is an agreement which is condemned by the Civil Code (1910), § 4258, as unlawful, is not a gaming contract in the sense and meaning of the Civil Code, § 4256, to the effect that money paid upon spch consideration may be recovered back from the winner, by the loser, under certain conditions stated.”

      James Maddox, for plaintiff. Denny & Wright, for defendant.
    Appeal and Error, 4 O. J. p. 1247, n. 33 New.
   Bell, J.

Under the rulings of the Supreme Court in answer to questions certified in this case, the petition failed to set forth a cause of action, and the general demurrer thereto was properly sustained. See Lasseter v. O’Neill, 162 Ga. 826 (135 S. E. 78).

Judgment affirmed.

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


text:
    17136.
    Mulling v. Bank of Cobbtown.
    Bills and Notes, 8 C. J. p. 79, n. 70.
    Executions, 23 O. J. p. 452, n. 55; p. 547; n. 62, 63; p. 548, n. 72, 74.
    Principal and Surety, 32 Cyc. p. 24, n. 78 New; p. 30, n. 44 New; p. 142, n. 14 New.
   Bell, J.

1. An accommodation indorser is a surety. Civil Code (1910), § 3541. A principal and a surety are joint and several promisors. Heard v. Tappan, 116 Ga. 930 (1) (43 S. E. 375). An execution against them may proceed against the property of either at the election of the plaintiff. Williams v. Kennedy, 134 Ga. 339 (3) (67 S. E. 821); Bank of LaFayette v. Wardlaw, 20 Ga. App. 741 (4) (93 S. E. 236).

2. Where property is levied upon to satisfy an execution against joint makers and a surety, the fact that the advertisement of the sale of the property “sets forth that said execution is only against” the person who was surety is no ground for arresting the process by affidavit of illegality. Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (3) (82 S. E. 774).

3. Nor is it a ground of illegality that the defendant surety was not notified of the impending levy and was given no opportunity to point out property either in his possession or in the .possession of one of the principals in the judgment. Civil Code (1910), § 6028; Douglas v. Singer Co., 102 Ga. 560 (2) (27 S. E. 664).

Decided October 16, 1926.

Affidavit of illegality of execution; from city court of Beidsville —Judge Cowart. December 17, 1925.

H. H. Elders, for plaintiff in error.

Anderson & Trapnell, contra.

4. “The provision of the statute as to the giving of notice of levy to the tenant in possession is merely directory, and the failure to give such notice does not render the levy ipso facto void. Solomon v. Peters, 37 Ga. 251 (92 Am. D. 69); Cox v. Montford, 66 Ga. 62 (3). The levy not being void through the failure of the sheriff to perform this ministerial duty, this irregularity affords no ground for staying the execution by an affidavit ol illegality.” Banks v. Giles, 20 Ga. App. 97 (2) (92 S. E. 651).

Judgment affirmed.

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


text:
    17145.
    Sheffield v. Dean.
    Decided October 16, 1926.
    Levy and claim; from city court of Miller county — Judge Geer. January 15, 1926.

      N. L. Stapleton, for plaintiff. P. Z. Geer, for defendant.
    Appeal and Error, 4 C. J. p. 905, n. 41.
    Chattel Mortgages, 11 C. J. p. 467, n. 19; p. 541, n. 52.
   Bell, J.

1. Where a bill of sale to secure a debt described the property as “30 head of horses now located at the residence of said B. S. Jones [the maker], in the 12th district of Miller county, Georgia,” the description was so vague and indefinite that the record of the instrument was, as a matter of law, insufficient to give constructive notice to a purchaser of a part of the property from one other than the maker. Nussbaum v. Waterman, 9 Ga. App. 56 (3) (70 S. E. 259); Reynolds v. Tifton Guano Co., 20 Ga. App. 49 (1) (92 S. E. 389); Ellis v. Lynch, 28 Ga. App. 529 (112 S. E. 151); Hicks v. Walker Brothers Co., 31 Ga. App. 395 (2) (120 S. E. 694); Nix v. Citizens Bank, 34 Ga. App. 546 (2) (130 S. E. 597).

2. T'he above ruling controls all the special grounds of the motion for new trial, adversely to the plaintiff in error. The evidence authorized the verdict. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Jenkins, R. J.

text:
    17334.
    Brock v. Hurst.
    Decided October 16, 1926.
    Complaint; from city court of Cairo — Judge Rigsby. February 23, 1926.

      C. F. Richter, for plaintiff in error. W. H. Duckworth, contra.
    Appeal and Error, 4 C. J. p. 864, n. 34.
   Jenkins, R. J.

The motion for a new trial being upon the general grounds only, and the verdict being fully authorized by the evidence and approved by the trial judge, this court is not authorized to set it aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17381.
    STEPHENSON v. WYATT HARDWARE COMPANY.
    Where, in settlement of advances made by a landlord to his tenant for the current year, the landlord accepts a bale of cotton grown on the rented premises, without receiving actual possession of the cotton, and tells the tenant to sell it and bring “the check” to him, the facts are sufficient to show an assertion of dominion on the part of the landlord and constructive delivery of the cotton; and if the tenant thereafter, as agent for the landlord, sells the cotton as directed, and the purchaser refuses to account to the landlord for-the proceeds, because the tenant is indebted to himself, he is liable in trover to the landlord.
    Sales, 35 Oye. p. 313, n. 16; p. 314. n.' 21, 23; p. 320, n. 67.
    Trover and Conversion, 38 Cyc. p. 2023, n. 30; p. 2044, n. 56.
    Decided October 16, 1926.
    Trover; from city court of Summerville — Judge Neal. April 6, 1926.

      Porter & Mebane, for plaintiff. C. D. Rivers, for defendant.
   Jenkins, P. J.

In Dudley v. Isler, 21 Ga. App. 615 (94 S. E. 827), this court said: “‘To maintain an action of trover, the plaintiff must show title in himself, or the right of possession wrongfully withheld from him by the defendant.' Grover v. Iler, 1 Ga. App. 77 (57 S. E. 906); Gilmore v. Watson, 23 Ga. 63; Palmour v. Durham Fertilizer Co., 97 Ga. 244 (22 S. E. 931); Where a sale is relied upon by one as vendee thereunder, and it appears that possession is retained by the vendor, something more than the parol agreement of sale relating to the transfer of the title and the possession is necessary to constitute constructive delivery. The statute requires something more than mere words; it calls for acts, to dispense with a writing. It must appear that after the parol contract was made, some, act was done within the intention of the parties' indicating an assertion of dominion over the goods by the vendee. It is no objection that such act be done by the vendor as the agent of the vendee. The vendee may constitute his vendor his bailee to accept the goods,, but such bailee must do some act on the faith of the parol contract which characterizes his possession as that of agent or bailee of the vendee, or the vendee must do some act in recognition of the change in the character of the possession.' Walker v. Malsby Co., 134 Ga. 399, 404 (67 S. E. 1039).”

Accordingly, where in a trover suit the plaintiff testified that he as landlord, without receiving actual physical possession thereof, had accepted a bale of cotton grown on the rented premises, in settlement of advances made to the tenant for the current year,' and had told him to “take the bale of cotton to Menlo and sell it for me,” and to “sell this bale of cotton and bring me the check,” such an assertion of dominion over the goods by the vendee, although the act to be done was to be effected by the vendor as the agent of the vendee, was sufficient to evidence constructive delivery; and where the vendor in such case, acting as such agent of the vendee, sells the cotton as directed by the vendee, and the person to whom it is thus subsequently sold refuses to account to the original vendee for the proceeds, on account of a debt owing by the tenant to such last purchaser, such subsequent vendee is liable in trover to the original vendee, upon proof of these facts. Weller v. Ellis, 65 Ga. 744. The original vendee, as plaintiff in trover, having sworn to the state of facts indicated above, it was error in the trial judge to grant a nonsuit..

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17436.
    EVANS v. CENTRAL OF GEORGIA RAILWAY COMPANY.
    The petition as amended set forth a cause of action in favor of an employee for injuries alleged to be due to inadequate lighting of his place of work after he had complained of the dark and dangerous conditiqn of the premises and an agent of the employer had promised to furnish proper light; and the court erred in sustaining the general demurrer and dismissing the petition. The jury should have been allowed to determine whether the alleged negligence in fact constituted negligence, and, if so, whether the plaintiff was authorized to continue his work, for the time shown by the petition, in reliance upon the alleged promise to remedy the defect, or whether his continuing the work in the face of what might be found to be a known and obvious risk amounted to such contributory negligence as would bar a recovery.

      Master and Servant, 39 C. J. p. 343, n. 24; p. 793, n. 94; p. 947, n. 40; p. 1205, n.-78.
    Negligence, 29 Cye. p. 635, n. 68; p. 639, n. 4.

      Decided October 16, 1926.
    Rehearing denied November 15, 1926.
    Action for damages; from Bibb superior court — Judge Malcolm D. Jones. May 14, 1926.
    Application for certiorari was denied by the Supreme Court.

      R. D. Feagin, Grady Gillon, for plaintiff.

      Harris, Harris & Popper, for defendant.
   Jenkins, P. J.

The facts in this case, as stated by counsel for the defendant in error, are as follows: Evans sued his employer, Central of Georgia Bailway Company, for damages for personal injuries. The defendant demurred to the plaintiff’s petition. The plaintiff amended. The defendant continued to demur. The court sustained the general demurrer. The plaintiff excepted. The petition showed the following facts: Evans was a watchman in the employ of the railway company. He went to the'ice-box in the round-house shop, took out a large piece of ice, put it on a platform about thirty-six inches from the ground, leaned up against the platform, took an ice-pick, split the block of ice into two pieces, and one piece fell toward him and injured the part of his person which was resting on the platform. The only negligence alleged against his employer was that the employer was negligent in failing to furnish him a safe place in which to work. In his original petition he said that the place was very dark and he could hardly see how to do the parcelling of ice at said location or take the necessary precautions to prevent injuries to himself. His amendment went more into detail as to the lighting, and shows that the light was dim, the only light which he had at the ice-box being that which came from the lights in the round-house through the round-house window, six or eight feet to the right of the ice-box, and a dim reflection from one light some seventy-five yards away. He says that he had complained about the dark and dangerous condition of the premises and the need of lighting, and had been promised by one Middlebrooks, special agent in charge of the watchmen, that a light would be installed. He first objected about a month before his injury, and on three other occasions. he reminded Middlebrooks of the need of the light and his promise to have it installed. Two or three days before he was injured Middle-brooks told him that he had made requisition for the light to the electrical department and that the same would be installed within a few days. He says also that a’ week before his injury he complained to the foreman of the round-house, where the ice-box was located, about the dim and insufficient light around the ice-box, and the foreman promised him that he would see that a light was installed over said ice-box. The plaintiff had done this work for six months without injury to himself, and says that the danger was not so great and not so patent that no person of ordinary prudence would have worked with the instrumentalities and under the circumstances until the danger was removed and the defect remedied.

1. As has often been held by the appellate courts, it is peculiarly within the province of the jury to determine questions of negligence, including a determination as to what constitutes the proximate cause of an injury.

2. Where a servant with knowledge of a dangerous situation or instrumentality proceeds with the performance of his duties for a reasonable time, relying upon a promise by the master to rectify such condition, he will not be held to have assumed the risk of injury from such dangerous situation or instrumentality, unless it should appear that the danger was so patent that no person of ordinary prudence would in the meantime carry on the work under the then surrounding conditions and circumstances.

3. Whether the servant was guilty of contributory negligence in continuing his work for a reasonable time, pending the rectification of such dangerous condition, and while relying upon such promise by the master, is ordinarily a question for the jury, to be determined from the evidence as to the obvious and serious character of the defect. Hadden v. Cherokee Sawmill Co., 12 Ga. App. 120 (76 S. E. 997).

4. The doctrine often stated by the courts, to the effect that a master can not be held liable for injuries received by the servant when brought about by the shifting character and condition of the risk as transformed by the direct result of the servant’s labor (Cowart v. Southern Marble Co., 144 Ga. 254, 87 S. E. 282), can not properly be said to apply in the instant case, where the negligence complained of was the failure to furnish a light whereby the work of the servant could be more safely performed, and where the work of the servant in the performance of his duties to his master in no wise brought about the dangerous condition complained of, and did not alter or.change the character for safety of the place provided for the performance of such duties.

5. Under the foregoing rulings the petition set forth a cause of action and should not have been dismissed on demurrer, and the jury should have been allowed to determine whether in fact the act charged as negligence constituted negligence, and if so, whether the plaintiff was authorized to continue his work for the time indicated, in reliance upon the alleged promise of the master to remedy the defect, or whether his thus continuing his duties in the face of what might be found to be a known and obvious risk amounted to such contributory negligence as would bar a recovery.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17487.
    SHIPPEY v. CARPENTER, executrix.
    1. The contract sued on is on its face a broker’s contract for the sale of land, and the plaintiff having set up a different consideration, if was incumbent upon him to prove the same. Commercial Bank v. Tucker, 94 Ga. 289 (21 S. E. 507).
    2. The plaintiff having sought to make such proof by the testimony of a disinterested witness, who claimed to be present at the time the terms of the agreement were entered upon, and who testified that the rebate in commissions on the original sale was to furnish the consideration of the subsequent agreement, and this testimony having been disputed by the defendant to the extent that he denied that the witness was present at the time the agreement was made, or had ever heard any such obligation assumed by him, it was for the jury to say whether the plaintiff had succeeded in establishing the consideration claimed for the contract, and it was error for the court to direct a verdict in favor of the plaintiff.
    3. “Where any suit is instituted . . by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the . . deceased person as to transactions or communications with such . . deceased person.” Civil Code (1910), § 5858 (1). The fact that evidence by a disinterested witness may have been adduced for the plaintiff in support of such a transaction would not operate to alter the rule. Jones v. Teasley, 25 Ga. App. 784 (1) (105 S. E. 46).' Accordingly, the exception taken to the refusal of the judge to allow the defendant to testify as to the transactions or communications with the deceased plaintiff is without merit, but he properly was allowed to impeach the testimony of the plaintiff’s witness by denying that such witness was pres'ent when the agi-eement was made.

      Brokers, 9 C. J. p. 582, n. 57; p. 644, n. 91; p. 657, n. 57.
    Witnesses, 40 Cyc. p. 2303, n. 22; p. 2313, n. 3; p. 2341, n. 21; p. 2577, n. 72 New.

      4. Under the theory of liability under which the suit is maintained by the plaintiff, if the defendant saw proper to extend credit to a purchaser from him for a portion of the purchase price of the premises subsequently sold, or saw proper to sell only a portion of the premises, he would be liable, under his agreement, for the commissions for the portion thus actually sold.
    Decided October 16, 1926.
    Complaint; from city court of Atlanta — Judge Reid. May 29, 1926.
    W. W. Tindall, J. K. Jordan, for plaintiff in error.

      Fuller & Bell, contra.
   Jenkins, P. J.

Carpenter instituted a suit, -which after his death was maintained by his executrix, on the following contract: “This agreement entered into between J. K. Shippey, State of Ga., County of Fulton, party of the first part, and J. L. Carpenter, State of Georgia, County of Fulton, party of the second part, witnesseth: that J. L. Shippey, party of the first part, and his heirs agrees to pay to J. L. Carpenter, party of the second part, his heirs and assigns, one half of commission at the rate of five per cent, when the following described property, which he now owns, is sold, whether by himself (meaning party of the first part) or his agents, whether sold by the party of the second part or his agents, or whether sold by any one, party of the second part is to receive one half of commission: Land lot No. 30 in the 17th district of Fulton County, Ga., containing two hundred and two and one half acres, more or less, known as Mrs. Margarette E. Stroup property.

“In witness whereof, party of the first part has hereunto set his hand and affixed his seal this 3rd day of January in the year of our Lord nineteen hundred and twelve.

“J. K. Shippey (L. S.)

“Signed, sealed, and delivered in the presence of:

“W. Paul Carpenter, Notary public, Fulton County, Ga.”

The petition set forth that the consideration of the contract sued on was that the land described in the petition had been previously sold to Shippey by the previous owner, acting through the plaintiff as a real-estate broker, and that the plaintiff had agreed to pay and did pay to Shippey as purchaser one half of the commissions accruing to Carpenter as broker on the previous sale, in consideration of his signing the agreement sued on, under the terms of which Carpenter, whenever the property should be resold, was to receive two and one half per cent, of the purchase-price on the resale. The plaintiff executrix, the wife of the original plaintiff, who was the sole beneficiary under his will, introduced as a witness on the trial the decedent’s son, who testified to the allegations of the petition, the witness asserting that he was present at the time the contract of sale was effectuated and when the terms of the agreement sued on were formulated and agreed upon. On the trial Shippey. testified that this witness was not present when he purchased the land or when he first went out to look at it, and that he never did tell the witness, or any one else in the presence of the witness, that in consideration of the rebate of one half of the commissions he would pay to Carpenter one half of the commissions on any subsequent resale. It was admitted that Carpenter had gone out of business as a real-estate agent before the subsequent sale was effected, and rendered no service in effectuating it. The contention of the defendant is, that, the contract sued on being a mere broker’s agreement for the sale of land, under the state of facts just set forth there could be no recovery by the plaintiff thereunder. He offered to testify, but was not permitted to do so, that the first sale was effectuated only by reason of the payment to him by the plaintiff of one half of his commissions, and that the sole consideration of such rebate in commissions consisted in the defendant’s original purchase of the property. His testimony to the effect that he did not receive the $250 rebate on the contract sued on was allowed to remain in evidence, but he was not permitted to testify that no consideration had ever been paid in consideration of the contract sued on.

The court directed a verdict in favor of the plaintiff, and overruled the defendant’s motion for a new trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    15870.
    Moore v. DeKalb Supply Company.
    Decided October 29, 1926.
    Action for damages; from city court of Decatur — Judge Daley. June 17, 1924.

      Alston, Alston, Foster & Moise, W. G. Shearer, W. H. Sibley, for plaintiff.

      Joseph E. Berman, Ralph G. Sims, for defendant.

      Appeal and Error, 4 C. J. p. 1247, n. 33 New.
   Stephens, J.

The judgment of reversal heretofore rendered by this court in this case (34 Ga. App. 375, 129 S. E. 899) having been reversed by the Supreme Court on certiorari (162 Ga. 758, 134 S. E. 620), the opinion rendered by this court in reversing the judgment of the court below is hereby withdrawn, and the ruling of the Supreme Court is hereby applied.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    15942.
    Sheffield v. Atlantic Refining Company.
    Decided October 29, 1926.
    Appeal; from Glynn superior court — Judge Highsmith. August 27, 1924.

      Farr & Powell, for plaintiff.

      Bennet, Twitty & Reese, for defendant.
    Appeal and Error, 4 C. J. p. 1247, n. 33 New.
   Stephens, J.

The judgment of reversal heretofore rendered by this court in this case (34 Ga. App. 303, 129 S. E. 667) having been reversed by the Supreme Court on certiorari (162 Ga. 656, 134 S. E. 761), the opinion rendered by this court in reversing the judgment of the court below is hereby withdrawn, and the rulings announced by the Supreme Court in its opinion are hereby applied.

Judgment affirmed.

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


author: Belu, J.

text:
    17157.
    COLT COMPANY v. ARMSTEAD.
    1. In an action for the purchase-price of property sold and delivered, where the plea is that the consideration has totally failed, in that the property was worthless, a general verdict in the defendant’s favor is not authorized by evidence that the property is worthless in its present condition, where the undisputed evidence further shows that by a small expenditure it could be repaired and made to perform good work.
    Sales, 35 Cyc. p. 484, n. 98; p. 557, n. 92 New.

      2. The court, while instructing the jury in reference to the alleged breach of an express-warranty that the thing sold was of “good” material, erred in charging them in such language as to imply that the warranty was not complied with unless the material was of the “best.” Whether this error alone would require a new trial under the facts appearing is not decided.
    Decided October 29, 1926.
    Complaint; from Barrow superior court — Judge Stark. November 28, 1925.

      G. A. Johns, for plaintiff. J. D. Quillian, for defendant.
   Belu, J.

The J. B. Colt Company brought suit against D. J. Armstead for the purchase-price of a generator and appurtenances designed for use as a home lighting plant. The defendant pleaded that the consideration had failed totally, in that the property was worthless. The jury found a general verdict for the defendant, and the plaintiff excepted to the overruling of its motion for a new trial.

We think the court erred in refusing the motion. The plea of total failure or consideration was not sustained unless the evidence showed that the plant was worthless for any purpose. Harmon v. Block, 32 Ga. App. 700 (1) (124 S. E. 548). The evidence disclosed that the property was defective and authorized the inference that it was worthless in its existing condition; but the undisputed testimony, further showed that with a small expenditure of money, far less than the purchase-price, it could be repaired and made to perform the work for which it was intended. In this state of the evidence, the general verdict in the defendant’s favor was unauthorized. See, in this connection, Trippe v. McLain, 87 Ga. 536 (13 S. E. 523); Felder v. Neeves, 36 Ga. App. 41 (135 S. E. 219); Thompson Oil Mill Co. v. Murray, 19 Ga. App. 137 (91 S. E. 217); Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427); Colt Co. v. Pickron, 32 Ga. App. 715 (3) (124 S. E. 550); Colt Co. v. Bridges, 34 Ga. App. 422 (129 S. E. 904); Colt Co. v. Bridges, 162 Ga. 154 (132 S. E. 889); Colt Co. v. Mallory, 35 Ga. App. 289 (133 S. E. 55); Colt Co. v. Hiland, 35 Ga. App. 550 (134 S. E. 142).

The charge of the court was inaccurate, though perhaps not materially erroneous, under the facts appearing.

Judgment reversed.

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


text:
    17171.
    CITY OF ATLANTA v. ROBERTSON.
    1. The general rule is that a municipal corporatoin is bound to keep its ■ streets in a reasonably safe condition for travel by the ordinary modes, and will be liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the street may have become defective an,d unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence.
    2. Irrespective of whether a municipal corporation is exercising a “governmental function” in allowing a part of its sewerage system to become worn and in a bad state of repair, where a traveler upon a public street in a city is injured in consequence of a dangerous condition under the surface of the street, of which the city knew .or should have known in time to repair it or to give warning of its existence before the injury, the city can not escape liability upon the ground that such condition of the streets was due to its failure to repair its sewerage system.
    3. The petition set forth a cause of action. The court did not err in overruling the general demurrer.
    Municipal Corporations, 28 Cyc. p. 1359, n. 51; p. 1360, n. 52; p. 1366, n. 78; p. 1384, n. 99; p. 1465, n. 36.
    Decided October 29, 1926.
    Damages; from Fulton superior court — Judge Humphries. January 2, 1936.

      J. L. Mayson, C. S. Winn, for plaintiff in error.

      Reuben R. & Lowry Arnold, E. C. Hill, contra.
   Bell, J.

This case is before this court upon exceptions by the defendant municipality to the judgment of the superior court overruling the defendant’s general demurrer to the plaintiff’s petition. The suit was for damages for personal injuries, and contained among others the following allegations: When the plaintiff was riding in an automobile along James street in Atlanta “the street and paving beneath said automobile suddenly and without any warning gave way and said automobile plunged nose first into a hole in said street, between fifteen and twenty feet deep,” with the result that the plaintiff was seriously hurt. Under the surface of James street “at the point above described” is a portion of the city’s sewerage and water system. “The culverts supporting said sewerage system at the point above described had become worn, decayed, and disintegrated, and the same was insufficient in capacity and strength to care for the large volume of water and refuse required to pass this point, and the entire system at the point above described had been condemned some two or three years ago by the city authorities although the same was still in use with an increased demand thereon.” “On account of the defective condition of said sewerage system at said point and the increased demand thereon, the same had undermined the street at said point above described, washing away all the supporting dirt and structure, • and left nothing but a mere shell bridging a cavity some twenty feet or more square and approximately fifteen or twenty feet deep, and the surface of said street suddenly and without warning gave way under the weight of the automobile in which petitioner and his companions were riding, and the whole car fell into the said cavity and was completely submerged therein.” The defendant was negligent in failing to keep the sewerage system in a proper state of repair, and in failing to give warning to travelers of the defective condition which existed in the street “beneath the surface thereof” and in peeping the street open to travel when it was “decayed, worn, and in a dangerous state of repair,” and when the same “had been condemned and the danger thereof was well known to defendant, its officers, agents, and employees.”

The plaintiff gave notice to the city of his injuries and of his claim for damages as a result thereof, as required by section 910 of the Civil Code (1910),.more than thirty days prior to the filing-of the petition.

The main contention of the counsel for the plaintiff in error is that any default by the city with respect to the proper maintenance of the sewer was a failure to perform a governmental function, that the proximate cause of the plaintiff’s injury was a defective sewer and not a defective street, and that therefore the city is not liable. In support of this contention counsel cite the case of City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345), from which it is insisted the case of City of Atlanta v. Trussell, 21 Ga. App. 340 (94 S. E. 649), should be distinguished. (See, in this connection, Lewis v. City of Moultrie, 27 Ga. App. 757, 110 S. E. 625.) In the brief of counsel for the plaintiff in error is the following statement and request: “We are aware that this court has held in the ease of Henning v. City of Atlanta, 35 Ga. App. 24 (131 S. E. 921), to the contrary of the principles claimed in this brief. However, that case will be [carried by] certiorari to the Supreme Court, and pending the decision on the certiorari we ask that the decision in this case be held up.” The petition for certiorari in that case has since been denied; but we do not think it necessary in the present case to decide whether the city could be held liable ior negligence relating solely to the maintenance of its sewerage system, since in our opinion the judgment of the superior court was clearly right, regardless of this question. It seems appropriate that we forego any decision upon this question at this time, because it does not appear what ruling the superior court made thereon, the judge in his order saying: “The basis of plaintiff’s suit is not primarily upon alleged defects in the sewer-main, but on account of an alleged unsafe condition of the street, growing out of alleged defects in the sewer-main under the surface of the street. The court can not hold, as a matter of law, that under the allegations of the petition the defendant did not know, or, by the exercise of a proper degree of diligence to keep the street inPa safe condition for its ordinary use, could not have known of the alleged unsafe condition of the street.”

The test of the sufficiency of a petition is whether the defendant can admit all that the plaintiff alleges and at the same time escape liability. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (6) (122 S. E. 327); Vandalsem v. Caldwell, 33 Ga. App. 88 (7) (125 S. E. 716). Applying this test to the petition before us, we have no hesitancy in holding that a cause of action is stated, even assuming that no actionable breach of duty is shown except with respect to the defective condition of the street, of which the city either had notice, or which had “existed for a sufficient length of time for notice to be inferred.” Civil Code (1910), § 898; Mayor &c. of Montezuma v. Wilson, 82 Ga. 206 (2) (9 S. E. 17, 14 Am. St. R. 150). The general rule is that a municipal corporation is bound to keep its streets in a reasonably safe condition for travel by the ordinary modes, and will be liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the street may have become defective and unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence. Brown v. Mayor &c. of Milledgeville, 20 Ga. App. 392 (1) (93 S. E. 25); Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (1) (126 S. E. 883); City Council of Augusta v. Cleveland, 148 Ga. 734 (5) (98 S. E. 345); Mayor &c. of Savannah v. Waldner, 49 Ga. 316 (1); Mayor &c. of Savannah v. Jones, 149 Ga. 139 (4) (99 S. E. 294).

We can not agree with, the contention of counsel for the city that the proximate cause of the injury was a-defective sewer and not a defective street. The plaintiff was having nothing to do with the sewer, and the sewer was having nothing to do with him. The sewer was fifteen or more feet under the street, and, in any contact with that, the plaintiff, under the existing circumstances, would have been a trespasser, except for the fact that he had the right to be where he was at the time as a traveler upon the street, and while in. the exercise of this right became unwittingly involved in a condition created by defects in the sewerage system. In this use of the street he had his only contact with any duty owed to him by the city, and it would therefore appear that the proximate cause of the injury was a defective street and not a defective sewer. The petition, it is true, describes a condition that was common both to the sewer and to the street, or at least a condition of the street which was brought about by a defect in the sewerage system, and yet it seems that such condition, for the purposes of this case, should be considered as one relating only to the street. In this view, the point .mainly relied, on by counsel for the plaintiff in error could not be said to be involved in the present ease. It is the opinion of the writer that although the duty of the city to properly maintain its sewerage system may be a governmental function, the city is not engaged in a governmental function when it is doing nothing toward the maintenance of such system, and is by neglect and inaction failing to keep it in good condition. I think the city certainly was not “in the actual performance of a governmental function” at the time the injury occurred. Mayor &c. of Savannah v. Jones, supra; Mayor &c. of Savannah v. Waters, 33 Ga. App. 234 (125 S. E. 772). We hold, however, that irrespective of whether a municipal corporation is exercising a “governmental function”^ allowing a part of its sewerage system to become worn and in a bad state of repair, where a traveler upon a public street in a city was injured in consequence of a dangerous condition under the surface of the street, of which the city knew or should have known in time to repair it or to have given warning of its existence before the injury, the city can not escape liability upon the ground that such condition of the street was due to its failure to repair its sewerage system.

The petition, set forth a cause of action, and the court did not err in overruling the general demurrer.

Judgment affirmed.

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


text:
    17553.
    WESTERN & ATLANTIC RAILROAD v. TOWNSEND, administratrix.
    1. Damages recoverable under the Federal employer’s liability act for the homicide of an employee may include, in addition to the value of his earnings in his employment, the proved monetary value of services for his family of a kind which he was rendering, such as domestic work in his household and the teaching of a minor child. An amendment adding to the petition in this case allegations as to such services and their value was properly allowed.
    2. A witness may swear to his opinion or belief as to the value of services rendered, especially where he gives the facts upon which his testimony is based.
    3. The charge that “the damages are such as flow from the deprivation of pecuniary benefits — whatever benefits might reasonably have arisen if the decedent had not died from his injuries,” was not subject to the exception taken.

      4. It is not cause for a new trial that the court 'admitted testimony as to the amount of taxes paid by the decedent, offered as tending to prove his earnings by showing his income and expenditures.
    5. The court did not err in charging in substance that if both the decedent and the defendant were negligent, the decedent’s negligence would not defeat a recovery, but in such event the damages should be diminished by the jury in proportion to the amount of negligence attributable to him.
    6. Under the Federal safety-appliance act, when it is proved that the injury for which the plaintiff seeks to recover was the proximate result of a defect in the appliance complained of, the plaintiff is entitled to recover full damages, irrespective of contributory negligence on the part of the injured employee and without proof of negligence on the part of the defendant.
    7. The court, after charging as to the discount to be made in reduction of future compensation to present value, based on the rate of interest obtainable for the money, did not, for the reason alleged, err in charging to the effect that the award of compensation should be upon a basis that does not call upon tlie beneficiaries to exercise financial skill to obtain the highest legal rate of interest.

      Appeal and Error, 4 O. J. p. 969, n. 56.
    Death, 17 O. J. p. 1297, n. 93; p. 1309, n. 32; p. 1314, n. 75; p. 1318, n. 30; p. 1326, n. 3; p. 1328, n. 9; p. 1333, n. 82; p. 1334, n. 89, 95; p. 1358, n. 82.
    Evidence, 22 O. J. p. 551, n. 50, 52; p. 593, n. 26, 27.
    Master and Servant, 39 C. J. p. 385, n. 52; p. 386, n. 55; p. 820, n. 60, 61; p. 821, n. 62; p. 822, n. 84; p. 823, n.86; p. 1072, n. 65; p. 1249, n. 86.
    Negligence, 29 Cyc. p. 510, n. 69.

      S. The evidence supported the verdict, and for no reason assigned can the verdict be disturbed.
    Decided October 29, 1926.
    Damages; from Fulton superior court — Judge Pomeroy. June 22, 1926.
    Application for certiorari was denied by the Supreme Court.
    This was an action for damages, brought in two counts, by the administratrix of a freight-conductor who was killed by the derailment of his train while engaged in interstate commerce. In the first count liability was predicated on a violation of the safety-appliance act, it being alleged that a defective air-brake caused the brake-shoe to stick, heating a wheel, and thereby causing its collapse, with the consequent derailment of the train. The second count was predicated upon negligence on the part of the defendant, alleging failure to inspect and repair the brakes, and misconduct on the part of the engine-crew in failing to stop the train for a distance of a mile after the defective ear had become derailed, in spite of repeated signals, and while in violation of the company’s rulé which required the engineer and the fireman to look back at frequent intervals. The jury found in favor of the plaintiff, and exception was taken by the defendant to the refusal to grant a new trial.

      Tye, Peeples & Tye, for plaintiff in error.

      Reuben R. & Lowry Arnold, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

The court did not err in allowing the amendment to the petition, setting up that the decedent left surviving him the plaintiff (his wife) and a daughter about eight years of age, who were dependent upon him and received his earnings, and that the action was brought by the plaintiff, as administratrix, for the benefit of herself as the widow and of the minor child, the amendment further alleging that in addition to the salary of the decedent, amounting to the sum of $250 per month, he performed domestic services for the benefit of his wife and daughter, amounting to the value of $50 per month, and rendered services of especial value to his daughter in instructing her in her lessons, of the added value of $25 per month. While it is true that under the Federal employer’s liability act the plaintiff is entitled to recover only such damages as would represent the pecuniary value of the contributions which the decedent would probably have made for the benefit of his wife and daughter had he not been killed, and it is not permissible to recover damages for the sentimental value of the society and companionship growing out of the relationship which existed between the decedent and his family, since the loss thus occasioned is not capable of being measured by any material standard (Mich. Cen. R. Co. v. Vreeland, 227 U. S. 59, 33 S. Ct. 192, 57 L. ed. 417, Ann. Cas. 1914C, 176), it is nevertheless true that a recovery is permissible for any lost contribution which is capable of pecuniary measurement; and in thus assessing the damages accruing to the widow and child for the death of the husband and father, it is competent to include the proved monetary value of any domestic services which the husband would have continued to render for the benefit of his family, and such proved monetary value of the services rendered to the child in bestowing educational training.

“Where the question under examination, and to be decided by the jury, is one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.” Civil Code (1910), § 5874. Testimony as to the value of services rendered is in the nature of opinion evidence. See Civil Code, § 5875. Thus, in an action for damages' on account of the loss of services rendered, while it would not be permissible to prove by a mere general statement the amount of the damage sued for, still, the value of the services testified to being in its nature a matter of opinion, any witness may swear to his opinion or belief as to the value of such services, especially where the ’witness goes into full detail as to the facts upon which his opinion is based. Jennings v. Stripling, 127 Ga. 778 (56 S. E. 1026); Central &c. Ry. Co. v. Hartley, 25 Ga. App. 110 (4) (103 S. E. 259), and cit. Accordingly, the first ground of the amendment to the motion for a new trial is without merit.

There was evidence sustaining the allegations set forth in the amendment referred to in the first division of the decision; consequently the exception taken to the charge upon this phase of the case, based upon the ground that it was without evidence to authorize it, is without merit; likewise, the refusal of the court to charge, as requested, that the jury, for the reason that there was no evidence to support it, would not be authorized to base any finding of damages upon the allegations of the amendment to the petition as to the services rendered to the daughter of the decedent, was not error. The other ground of complaint to the excerpt from the charge actually given upon this phase of the case, which is that the court charged that “the damages are such as flow from the deprivation of pecuniary benefits — whatever benefits might reasonably have arisen if the decedent had not died from his injuries,” movant contending that the pecuniary benefits allowable in such a case could only be such as the widow and child were probably deprived of by the death of the decedent, is without merit. The reference to such benefits as might reasonably have arisen is equivalent to “such benefits as the jury might find the widow and child were probably deprived of.”

The testimony as to the amount of taxes paid by the decedent was admitted in evidence, in an effort by the plaintiff to prove the earnings of the decedent by showing his income and expenditures, and was properly admitted for that purpose. But even if not properly admitted, its admission was not such harmful error as would authorize a new trial.

The court charged the jury in substance that if both the decedent and the defendant were negligent, the negligence of the decedent would not entirely defeat a recovery, but in such event the damages would be diminished by the jury in proportion to the amount of negligence attributable to him. This excerpt from the charge is substantially in the language of the Federal statute. Exception is taken thereto on the ground that it does not embody the construction, of the statute as given by the Federal decisions, which are controlling in an action brought under the Federal employer’s liability act. This portion of the statute has been construed by the Federal courts to mean that in such a case the plaintiff shall not recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to the employer bears to the entire negligence attributable to both. Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114 (33 S. Ct. 654, 57 L. ed. 1096, Ann. Cas. 1914C, 172). This court, in Central of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198 (6) (110 S. E. 636), construed the rule under the Federal decisions, as just stated, as being merely an amplification of the statute rule, and in the Lindsey case it was said that under the Federal decisions a charge giving the rule in terms substantially identical with the statute had been approved by the Federal courts. See also Southern Ry. Co. v. Wessinger, 32 Ga. App. 556 (124 S. E. 100); Norfolk & Western Ry. Co. v. Earnest, supra; Illinois Central R. Co. v. Skaggs, 240 U. S. 73 (36 S. Ct. 249, 60 L. ed. 528). Moreover, in the instant case, in another portion of the charge, the rule as amplified by the Federal decisions was in terms given in charge, as follows,: “The court further instructs you, that, unless you find that the death of the husband of plaintiff was due to a violation of the safety-appliance act in some particular specified in the petition, and that such violation was the proximate cause of his death, you would have the right to consider the contributory negligence of plaintiff’s husband, if there was such negligence, on the question of the amount of damages allowable in this case; and in this connection the court charges you, that, if the plaintiff’s husband and the defendant were both negligent in matters proximately causing or contributing to his death, and if the negligence of the defendant did not involve a violation of the safety-appliance act as above explained to you, the plaintiff would not be entitled to recover full damages, but only such a proportionate amount, bearing the same relation to the full amount as the negligence attributable to the defendant bears to the entire negligence attributable to both the defendant and the decedent.” Accordingly, the exception taken to this excerpt from the charge is without merit.

Under the provisions of the Federal safety-appliance act, upon proof being made that the injury proximatety resulted from a defect in the appliance complained of, the plaintiff is entitled to recover full damages, irrespective of any contributory negligence on the part of the employee, and without proof of negligence on the part of the defendant. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33 (36 S. Ct. 482, 60 L. ed. 874); Spokane & Inland Empire R. Co. v. Campbell, 241 U. S. 497 (36 S. Ct. 683, 60 L. ed. 1125); Great Northern R. Co. v. Otos, 239 U. S. 349 (36 S. Ct. 124, 60 L. ed. 322); L. & N. R. Co. v. Layton, 243 U. S. 617 (37 S. Ct. 456, 61 L. ed. 93); Minneapolis & St. Louis R. Co. v. Gotschall, 244 U. S. 66 (37 S. Ct. 598, 61 L. ed. 995). In the instant case the proved facts and circumstances were such as would authorize the inference by the jury that the air-brake was defective when the trip was begun, as well as at the time of the accident, and that such defect was the proximate cause of the derailment. Accordingly, the excerpts from the charge complained of, in which these principles were fairly and correctly set forth as governing the law applicable to the first count of the petition, were without error; nor were they objectionable as being argumentative in character.

The court charged the jury in part as follows: “When you decide upon the amount of pecuniary benefit which the decedent’s life would have been to his wife, and also to his child, under the conditions hereinbefore stated, it would not be proper to give the gross amount of those benefits in the verdict which you render in the case, because, inasmuch as the same is paid down all in cash, the amount would have to be reduced to its present cash valué. You are instructed that the present cash value of future benefits of which the beneficiaries may have been deprived by the death of the decedent, making adequate allowance, according to the- circumstances, for the earning power of money, is the proper measure of damages in an action of this character. In determining what rate of interest you should find that money will bring, and hence what rate of discount shall be used by you in reducing this amount to its present value, you would consider all the facts and circumstances of the case. Local conditions are not to be disregarded, nor should the discount necessarily be at what is commonly called the legal rate of interest. It may be that such rates are not obtainable upon investments upon safe securities without the exercise of financial experience and skill. The compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill. It is a matter for you to decide as to what the earning power of money at this place and this time on safe investments would be. You are authorized to make the calculation, reducing the sum found by you to its present value by any proper .method of calculation. In other words, whatever the annual loss by these beneficiaries might be throughout the expectancy of the decedent, in your opinion, or throughout such part of his expectancy as you decide that these beneficiaries would receive annual benefits, the same would be reduced to its present cash value upon the rate of interest which you fix as reasonable and right under the circumstances of the case, as I have, just explained to you.” Exception is taken to the following excerpt from this portion of the charge: “It may be that such rates are not obtainable upon investments upon safe securities without the exercise of financial experience and skill. The compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill;” the objections of the defendant being that the charge was error in that it is contended that the quoted excerpt left it to the jury to reduce the gross amount of damage to its. present value, using a rate of discount such as could be realized by the beneficiaries without the exercise of any degree of financial skill.

The excerpt from the charge was manifestly based upon what was said in the opinion of the court in the case of Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 495 (36 S. Ct. 630, 60 L. ed. 1117, L. R. A. 1917F, 367). It will be seen from an examination of the decision in that case that the question there' involved was whether or not the trial judge erred in failing to instruct the jury that whatever gross amount of damages they found was sustained by the plaintiff should be reduced to its present value. The Supreme Court, in ruling that where a verdict is based upon the deprivation of future benefits the ascertained amount of such benefits should ordinarily be discounted so as to make the verdict equivalent to their present value, went further in the opinion to discuss the proper method of so doing, and it was in this discussion as, set forth in the opinion in that case,-as delivered by Mr. Justice Pitney, that the following language was used: “We are constrained to say that in our opinion the Court of Appeals erred in its conclusion upon this point. The damages should be equivalent to compensation for the deprivation of the reasonable expectancy of pecuniary benefits that would have resulted from the continued life of the deceased. . . So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future. Ordinarily a person seeking to recover damages for the wrongful act of another must do that which a reasonable man would do under the circumstances, to limit the amount of the damages. . . And the putting out of money at interest is at this day so common a matter that ordinarily it can not be excluded from consideration in determining the present equivalent of future payments, since a reasonable man, even from selfish motives, would probably gain some money by way of interest upon the money recovered. Savings banks and other established financial institutions are in many cases accessible for the deposit of moderate sums at interest, without substantial danger of loss; the sale of annuities is not unknown; and, for larger sums, State and municipal bonds and other securities of almost equal standing are commonly available. Local conditions are not to be disregarded, and besides, there may be cases where the anticipated pecuniary advantage. of which the beneficiary has been deprived covers an expectancy so short and is in the aggregate so small that a reasonable man could not be expected to make an investment or purchase an annuity with the proceeds of the judgment.’ But, as a rule, and in all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded, the ascertained future benefits ought to be discounted in the making up of the award. We do not mean to say that the discount should be at what is commonly called the “legal rate’ of interest; that is, the rate limited by law, beyond which interest is prohibited. It may be that such rates are not obtainable upon investments on safe securities, at least without the exercise of financial experience and skill in the administration of the fund; and it is evident that the compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill,-for where this is necessarily employed the interest return is in part earned by the investor rather than by the investment. This, however, is -a matter that ordinarily may be adjusted by sealing 'the rate, of interest to be adopted in computing the present value vpf 'the future benefits; it being a matter of common knowledge ■that, as a rule, the best and safest investments, and those which require the least care, yield only a moderate return.”

As has already been indicated in the syllabus, the decisions of the Federal courts are binding on questions of construction arising under the Federal employer’s liability act. It is contended, however, that the language of the decision relied upon by the defendant in error as supporting the charge is merely obiter, and for that reason not binding, since the question'for determination was not how the gross sum should be reduced to its present worth, but whether or not it should be so reduced. Construing merely the language referred to, there might be some difficulty in determining whether or not it constitutes a part of the ruling or is mere obiter, since the court in passing upon the question of whether or not there should be a reduction to present value, might by this language have intended to define what it meant in saying that the gross amount should be reduced to its present value. Under such a view, it might well be said that the language thus employed could be. taken as a part of the adjudication. The difficulty is relieved, however, by a further statement in the opinion, expressly disclaiming such an intent. This language is as follows: “We are not in this case called upon to lay down a precise rule or formula, and it is not our purpose to do this, but merely to indicate some of the considerations that support the view we have expressed that, in computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made upon the basis of their present value only.” It follows, therefore, that we have no absolute ruling by the Supreme Court upon the question here involved, but the language thus employed by one of the ablest jurists of the day must be taken as persuasive authority only.

It is manifest that in a suit of this character it would be entirely beyond the mark tp enter upon the question of what financial experience and skill, if any, the particular plaintiff might possess. Evidence upon that question would not be admissible. Some general rule must be adopted. To require that the plaintiff should earn the highest legal rate of interest not actually prohibited by law would not result in eliminating from consideration the degree of financial experience and skill possessed by the plaintiff, but would be to assume, as a matter of law, that the plaintiff did possess the highest degree of financial experience and skill; on the other hand, to require that the plaintiff should earn only such interest as the fund might be made to produce without the' exercise of any degree of financial experience and skill would not re-suit in eliminating from consideration the degree of financial experience and skill possessed by the plaintiff, but would be to assume, as a matter of law, that the plaintiff possessed no degree of financial experience and skill whatever. As stated in the opinion referred to, the theory on which it is required that the amount of the damages sustained should be reduced in the award to its present cash value is that “a person seeking to recover damages for the wrongful act of another must do that' which a reasonable man would do under the circumstances to limit the amount of the damage.” This principle is recognized and embodied in section 4398 of our Civil Code, which provides that “Where by a breach of contract or negligence one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.” It thus might seem that in order to eliminate the personality of the plaintiff in determining the amount of the damages when considered in connection with the duty to reduce the award to its present cash value, the sum awarded should be made to that fictitious person known only to the law, who is assumed to be a reasonable man exercising ordinary care and diligence. It will be observed that no exception is taken to the failure of the judge to require ordinary care and diligence in the management of the fund awarded, but the only exception actually taken to the charge as made is that it was erroneous in that under it “no financial skill would be required.” We do not think this ground of exception is well taken. The excerpt from the charge complained of does not prescribe any such limitation; its only import being that the compensation should not be awarded upon a basis that calls for such financial experience and skill as would result in obtaining interest at the recognized legal fate, the precise excerpt excepted to being as follows: “It may be that such rates are not obtainable upon investments upon safe securities without the exercise of financial experience and skill. The compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill.” (Italics ours.) It is manifestly not erroneous to charge that the plaintiff is not required to obtain the legal rate. Indeed it has been expressly adjudicated by the United States Supreme Court that a charge imposing such a duty would be erroneous. L. & N. R. Co. v. Holloway, 246 U. S. 525 (38 S. Ct. 379, 62 L. ed. 867). Since, therefore, the charge complained of was not erroneous in itself, and no ground of complaint is made upon the failure to charge the rule as to ordinary care, the exception as taken is without merit, even were it to be assumed that the rule of ordinary care be the true and correct one. Upon that question, however, we are not here called upon to pass.

The evidence supported the verdict. The charge was clear, full, and fair and for no reason assigned can the verdict be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17586.
    Clark et al. v. Union School District.
    Appeal and Error, 4 C. J. p. 180, n. 34; p. 557, n. 49.
    Costs, 15 C. J. p. 282, n. 11; p. 283, n. 13.
    Schools and School Districts, 35 Cyc. p. 991, n. 90.
   Bell, J.

1. The Supreme Court, in transferring this ease from that court to this court, expressly held that no constitutional question was involved. 162 Ga. 597 (34 S. E. 325).

2. In this proceeding to validate bonds for the purpose of building a schoolhouse in a local tax district the court did not err in refusing the motion to dismiss the petition and to declare the election void, based on the ground that the notice of the election had not been published as required by section 440 of the Civil Code- (1910), where it appeared that the election was held on Saturday, January 23, 1926, and that notice thereof had been published in the proper newspaper once a week for six weeks, beginning on Friday, December 18, 1925, and ending on Friday, January 22, 1926. The trustees were authorized to name for the election any day of the week except Sunday; and since the notice was inserted the first time at least 30 days before the date of the election and as nearly that precise number of days immediately preceding such date as was possible under the circumstances, the fact that the publication began more than 30 days prior to such date was immaterial and afforded taxpayers no cause for attacking the validity of the notice. Montford v. Allen, 111 Ga. 18 (1) (36 S. E. 305); Davis v. Dougherty County, 116 Ga. 491 (3) (42 S. E. 764).

3. The bill of exceptions does not even attempt to raise a question as to the legality of any votes cast in favor of the bonds, and this court can not consider the reference to such question as made in the brief for the plaintiff in error.

4. The motion of the defendants in error to award damages on the ground that the case was brought to this court for delay only must be denied. The judgment to which the exception was taken being the validation of a proposed issue of bonds and not a money _ judgment against the plaintiffs in error, the law with reference to awarding damages in cases brought up for delay only is inapplicable. Civil Code (1910), § 6213; Street v. Fudge, 110 Ga. 277 (34 S. E. 845); Furr v. Bank, 139 Ga. 815 (5) (78 S. E. 181).

Decided October 29, 1926.

Validation of school bonds; from Webster superior court — Judge Littlejohn. February 22, 1926.

R. L. Gillen, M. A. Walker, G. Y. Harrell, for plaintiffs in error.

Jule Felton, solicitor-general, Cleveland Rees, J. E. D. Shipp, contra.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    17595.
    VESTA ACCUMULATOR COMPANY et al. v. DOUGLAS.
    The question whether the damage to the plaintiff’s building arose from the ordinary and reasonable use of the premises by the defendant as lessee was one of fact for the jury; and, the verdict being a finding that a part of the damage was caused by what amounted to an unreasonable use of the premises, and the evidence not demanding, as a matter of law, a finding to the contrary, the verdict can not be disturbed by this court.
    Appeal and Error, 4 O. J. p. 850, n. 51; p. 852, n. 56.
    Decided October 29, 1926.
    Complaint; from city court of Atlanta — Judge Reid. June 19, 1926.

      Arminius Wright, for plaintiffs in error. Lee Douglas, contra.
   Jenkins, P. J.

This was a suit by the owner of a building against the lessee for damage to the realty, occasioned by sulphuric acid coming in contact with the flooring, thereby disintegrating the same. The property was leased by the owner for a term of seven years to the defendant as tenant, who conducted an electric-batteiy service. The lease provided that “the said lessee will, at the expiration of the term hereby created, yield up possession of said premises and all keys thereto belonging unto the said lessor, in as good order and repair as when first received, natural wear and tear excepted. The lessee agrees to keep the premises herein leased in repair during the existence and continuance of this lease, at his own expense, the outside walls and roof excepted.” It appears without dispute that the floor was injured and more or less destroyed in the manner indicated, the contention of the defendant being that from the nature of the business in which it was engaged, and for which purpose the building was rented, the leakage of sulphuric acid upon the floor was unavoidable and should have been anticipated as being incident to the ordinary conduct of such business, and that under the evidence submitted and the charge of the court, a verdict in its favor was demanded on the theory that the injury was brought about by the natural wear and tear incident to carrying on the business indicated. There was some evidence going to show that the deleterious effect of any acid which might have been spilled upon the floor might be neutralized by the use of other chemicals at a nominal cost, and one of the witnesses for the defendant testified that it was the custom among those engaged in the battery-service business to employ such a counteractant. The judge charged the jury that “natural wear and tear means such decay or depreciation or deterioration in the value of property as may arise from ordinary and reasonable use.” No exception to the charge is taken, and the special grounds of the motion amount to nothing more than an amplification of the general grounds. The jury found a verdict in favor of the plaintiff for a portion of the damage sued for, and the defendant excepted to the refusal to grant a new trial.

Under the charge of the court and the evidence submitted, it was a question of fact for the jury to determine whether the damage incurred arose from the ordinary and reasonable use of the rented premises'. The jury having necessarily found that a portion of the damage was occasioned by what amounted to an unreasonable use of the premises, and the evidence not demanding, as a matter of law, a finding to the contrary, their verdict can not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17605.
    Crider v. Hughes.
    Certiorari, 11 C. J. p. 95, n. 24.
    Courts, 15 C. J. p. 987, n. 61.
   Stephens, J.

1. Under section 2 of the act of 1925 as to the municipal court of Atlanta (Ga. L. 1925, pp. 370, 386), the writ of certiorari does not lie to an original judgment rendered by one of the judges of that court. See, in this connection, the case of Orr v. Southern Acceptance Co., 162 Ga. 400 (134 S. E. 80), where it was held that the legislature had constitutional power to enact this provision of the act.

Decided October 29, 1926.

Petition for certiorari; from Fulton superior court — Judge E. D. Thomas. June 26, 1926.

W. A. James, for plaintiff in error.

2. The judge of the superior court therefore properly refused to sanction a petition for certiorari, which complained of such a judgment rendered by one of the trial judges of the Pulton section of the municipal court of Atlanta. Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.