text:
    16773.
    ATLANTIC COAST LINE RAILROAD COMPANY v. ANDERSON.
    1. Under the evidence, the jury were authorized to And the defendant liable.
    2. Evidence that the plaintiff had no education or profession was relevant and admissible for the purpose of showing that in his efforts to earn money he would be restricted to manual labor, and thus of illustrating a diminution of his earning capacity as a result of the injury to his hand.
    3. The petition contained enough, by the allegations expressly made and by those implied, to admit evidence of the plaintiff’s age and life-expectancy. His age being proved, and it' appearing from the evidence that his injury is permanent, and the evidence tending to show also that it will result in permanent pain-and suffering, the court properly admitted in evidence the mortality tables “to aid the jury in dealing with the element of time in their computation of the damages.”.
    4. But there being no evidence of the extent of the plaintiff’s loss because of diminished earning capacity, it was error to charge the jury that they were authorized to consider the mortality tables “in computing what amount, if any, the plaintiff is entitled to recover for diminished capacity to labor and earn .money.” Other charges submitting to the jury the question of the plaintiff’s right to recover damages for such cause were also erroneous, as being unauthorized by the evidence.
    5. The court charged the jury as follows: “If you should And, from the evidence, that both the plaintiff and the defendant were negligent in causing the injury to the plaintiff, if he was injured as alleged, and that the plaintiff could not have avoided the injury by the exercise of ordinary care on his part, and should further And, from the evidence, that the negligence of the defendant was greater than that of the plaintiff, you would be authorized to And for the plaintiff; but it would be your duty in that event to diminish the damages found for the plaintiff in proportion to the default or negligence attributed to him.” Held: This instruction was not erroneous as contravening the rule laid down in Amerieus de. B. Oo. v. Luelcie, 87 Ga. 6 (13 S. E. 105), nor did it eliminate or exclude the defense that the plaintiff’s injury was brought about by his own carelessness, amounting to a failure to exercise ordinary care.

      Damages, 17 O. J. p. 1037, n. 79; p. 1066, n. 17.
    Evidence, 22 O. J. p. 161, n. 67; p. 925, n. 23.
    Master and Servant, 39 O. J. p. 1247, n. 77; p. 1249, n. 86.
    Negligence, 29 Oye. p. 652, n. 12; p. 657, n. 54.
    New Trial, 29 Cyc. p. 786, n. 87; p. 790, n. 10.

      6. The court erred, however, under the pleadings and the evidence, in,not charging the jury that if the plaintiff’s injury was brought about by his own carelessness amounting to a failure to exercise ordinary care, he could not recover.
    7. No other error appears. Eor the reasons pointed out in headnotes 4 and 6, and in the corresponding divisions of the opinion, the court erred in overruling the defendant’s motion for a new trial.
    Decided April 20, 1926.
    Damages; from Ware superior court—Judge Reed. July 25, 1925.
    J. 0. Anderson brought suit against the Atlantic Coast Line Railroad Company to recover $2500 as damages for a personal injury which he sustained while employed in the defendant’s shops at Way cross, and which resulted in the loss of the middle finger of his right hand, and by the allegations of his petition made the following case: He was employed as a mechanic’s helper to operate a certain machine propelled by electricity. On the day of his injury the machine “broke down, or at least the current was cut off,” and it stopped running. His duties as a helper “required him to clean the machine while it was stopped and not running.” As “petitioner was carrying out his duties in cleaning off the machine by rubbing off crude oil and other accumulated matter . . thereon, . . the electrician who was in control of all of the current in said shops . . then and there without notice to petitioner shot the current on to said machine, which put the same in motion, wherein and whereby said machine with its rollers and cogs caught petitioner’s hand, and wherein and whereby his middle finger on his right hand was completely cut off, and his hand and other fingers lacerated, cut, and torn.” The electrician knew where the plaintiff was working and had knowledge of the position he occupied. The act of the electrician in starting the machine without giving the plaintiff notice or warning was negligent, and this negligence was the cause of the injury. Plaintiff was earning $3.76 per day, and, as a result of his confinement from the injury thirty-five days, lost from his daily labor the sum of $131.60, “and in addition thereto he suffered and continued to suffer for a longer period of time great physical pain and mental anguish.” By the loss of his finger and the injury to his hand, “his earning capacity as a laborer has been decreased and diminished in at least one third of his earning.” He “is uneducated and has no profession, calling, or vocation, but is dependent entirely upon his physical manual labor for support.” He is “maimed” and “disfigured,” and “will remain so the remaining portion of his natural life,” and for this cause he is also entitled to damages. The plaintiff himself was not negligent and could not have avoided the injury by ordinary care. There was no specific averment as to the plaintiff’s age or life-expectancy.
    The defendant filed an answer in which it denied substantially all the allegations of the petition and averred affirmatively that the plaintiff could have avoided the consequences of the defendant’s alleged negligence by ordinary care,' and that whatever injury he may have received was due entirely to his own negligence. The answer recited that it was made subject to demurrer previously filed, but there is nothing else in the record as to any demurrer.
    The trial resulted in a verdict for the plaintiff for $1131.60. The- defendant’s motion for a new trial was overruled, and it excepted.

      Wilson, Bennett & Pedriclc, Bonnet, Twitly & Reese, for plaintiff in error.

      James R. Thomas & Son, contra.
   Bell, J.

(After stating the facts as above.) It will serve no useful purpose to discuss the sufficiency of the evidence. We have examined the evidence carefully, and are satisfied that under it the jury were authorized to find the defendant liable.

The defendant complains in the first ground of the amendment to the motion for a new trial that the court erred in allowing the plaintiff to testify that he had no education or profession. The evidence was objected to as being irrelevant and immaterial to any issue in the case, and prejudicial. We do not think there was any error in the court’s ruling. It might possibly be upheld merely upon the theory that the plaintiff was entitled to prove the allegations of his petition. “Testimony is admissible which tends to prove a fact alleged in the petition, irrespective of whether, when admitted, it tends to establish a right to recover or not.” Tifton Ry. Co. v. Butler, 4 Ga. App. 191 (4 d). See also Fleming v. Roberts, 114 Ga. 634 (3) (40 S. E. 792); Mayor &c. of Macon v. Melton, 115 Ga. 153 (3) (41 S. E. 499). But regardless of whether this rule of practice is applicable, the testimony was admissible for the purpose of showing that the plaintiff, in his efforts to earn money, would be restricted to manual labor, and thus was illustrative of the diminution of his earning capacity as a result of the injury to his hand. See L. & N. R. Co. v. Smith, 136 Ga. 455 (1) (71 S. E. 774); M., D. & S. R. Co. v. Musgrove, 145 Ga. 647 (2) (89 S. E. 767).

In the second special ground of the motion for a new trial it is alleged that the court erred in admitting in evidence the mortality tables as contained in 70 Ga. 845, because, as objected at the time, the petition contained no allegation that.would authorize such evidence, and there was not sufficient evidence of decreased earnings or of decreased earning capacity by reason of the injury. The plaintiff sought to recover damages not only for actual lost time and for the loss which he would sustain in the future as a result of diminished earning capacity, but also for pain and suffering, including that to which he would be subjected during life, through consciousness of the disfigured member; and, the plaintiff having testified to his age at the time of the injury, and it appearing from the evidence that the injury was received as alleged and was permanent, the mortality tables were admissible in evidence, although the petition contained no direct averment either as to the plaintiff’s age or as to his life-expectancy, and although there may have been no evidence of the extent of the diminution of his earning capacity. In the absence of demurrer, the petition contained enough, by the allegations expressly made and by those implied, to admit evidence as to the plaintiff’s age and expectancy. See Cook v. Winter, 68 Ga. 259 (1); N., C. & St. L. R. Co. v. Miller, 120 Ga. 453 (4) (47 S. E. 959); Bell v. State Life Ins. Co. of Indianapolis, 24 Ga. App. 497 (5) (101 S. E. 541); Atlanta Street R. Co. v. Jacobs, 88 Ga. 647 (1) (15 S. E. 825). And when there is evidence tending to show that the injury is permanent and that it will result in permanent pain and suffering, the mortality tables are admissible in evidence, in connection with proof of the injured person’s age, “to aid the jury in dealing with the element of time in their computation of the damages” to be allowed for the pain and suffering, notwithstanding there may be no sufficient proof of lost future earnings. Southern Ry. Co. v. Wright, 6 Ga. App. 172 (4) (64 S. E. 703) ; Powell v. Augusta &c. R. Co., 77 Ga. 192 (10) (3 S. E. 757); City Council of Augusta v. Owens, 111 Ga. 464 (8) (36 S. E. 830); Pidcock v. West, 24 Ga. App. 785 (4) (102 S. E. 360). In Southern Ry. Co. v. Wright, supra, Judge Russell compared the decisions in M., D. & S. R. Co. v. Moore, 99 Ga. 229 (25 S. E. 460), Atlanta, Knoxville &c. R. Co. v. Gardner, 122 Ga. 82 (10) (49 S. E. 818), with the earlier Powell case, supra, and concluded that the Powell ease was controlling upon the identical question that is now again up for decision. If the plaintiff had altogether omitted from his suit any claim for damages for the loss of future earnings, he would not on that account have been prevented from relying upon the mortality tables for the purpose of showing the probable duration of his pain and suffering, his age being proved; and it follows that he is not to be denied the right to use such evidence merely because he may not have submitted evidence to authorize a recovery of the other element of damages sued for. It seems there should be some sort of evidence of expectancy before there could be a recovery for any permanent cause relating to a personal injury. Savannah Sc. Ry. v. Stewart, 71 Ga. 427 (1).

In other grounds of the motion the defendant assigns error on certain excerpts from the court’s charge, submitting the question of the plaintiff’s right to recover for the alleged loss of earnings as the result of his diminished earning capacity, and instructing the jury that they might, if they wished to do so, refer to the mortality tables “in computing what amount, if anything, the plaintiff is entitled to recover for diminished capacity to labor and earn money.” The exceptions are that there was no evidence to warrant such instructions. Save the proof as to the nature of the injury, which amounted finally to the loss only of a finger, but which was still “tender” at the time of the trial, the following testimony by the plaintiff was all the evidence upon the question of future loss by reason of permanently diminished earning capacity: “I went back to work as soon as the doctor at the hospital told me to. I was earning forty-seven cents an hour, and $3.76 a day . . I worked for the Coast Line after that. I worked about three months. I guess two or three months after that. I am now working in Lake City, Florida, as a drug clerk. I had never suffered any injury to that hand before. . . I am not a druggist, only a clerk. When I went back to work [for the defenclant] I took the same job. . . I' was paid the same wages as before. . . I can not perform the same kind of manual labor that I could before this injury. As a result of my hand being in its condition, my earning capacity has been diminished. Before the injury, I hadn’t done nothing except I farmed, and then I drug clerked. I can not do the work even in the drug-store I could before. It bothers me in wrapping packages and everything. I haven’t any education or profession, my labor is all that I have to depend upon for a livelihood. My hand won’t allow me to perform the same kind of work that I did prior to the reception of this injury. I can’t use it to do any heavy work at all.”

If, with the circumstances touching the nature and extent of his injury, he had given all the facts in relation to his previous and subsequent ability to labor, he might then have testified to what in his opinion was the percentage of the decrease, if any, in his capacity to earn money. Cook v. Winter, 68 Ga,. 259 (2) ; Central Railroad v. Coggin, 73 Ga. 689 (5); City Electric Ry. Co. v. Smith, 121 Ga. 663 (4) (49 S. E. 734); Atlanta & W. P. R. Co. v. Haralson, 133 Ga. 231 (1) (65 S. E. 437). But irrespective of whether such opinion would have helped the particular case (see Kraft v. Rowland, 33 Ga. App. 806 (3), 128 S. E. 812), the plaintiff failed to testify what he made as a drug clerk, and did not otherwise show, either directly or circumstantially, how much less he would earn because of the injury. See Southern Ry. Co. v. Petway, 7 Ga. App. 659 (2) (67 S. E. 886). In the Haralson case, supra, the Supreme Court said: “If a plaintiff seeks to recover for pecuniary losses resulting from lost time or permanent diminution of capacity to labor and earn money, he should introduce evidence on which to predicate such a recovery.” The recovery should be such as to compensate for the loss of money which the plaintiff would probably have earned had the injury not occurred. Georgia Ry. & El. Co. v. Carroll, 143 Ga. 93 (5) (84 S. E. 434). The measure of recovery for pain and suffering is to be determined, of course, by the enlightened consciences of impartial jurors. But before the jury can legitimately render a verdict for the other kind of damage referred to, they should have in evidence some data upon which to base it. They should not be left to mere guess or conjecture, and unless there is ground in the evidence for more than this, the question of the plaintiff’s right to recover such damage ought not to be submitted in charge. City Council of Augusta v. Owens, 111 Ga. 464 (9) (36 S. E. 830). There was no sufficient evidence in the instant case to warrant the court in giving the excerpts complained of, and to give them was reversible error. Upon this point the case seems to be controlled by the decision of this court in Rome Ry. & Light Co. v. Duke, 26 Ga. App. 52 (105 S. E. 386). We have held in the preceding division that the mortality tables were admissible in evidence; but the court’s charge in reference thereto was too broad, under the evidence.

The court charged the jury as follows: “If you should find, from the evidence, that both the plaintiff and the defendant were negligent in causing the injury to the plaintiff, if he was injured as alleged, and that the plaintiff could not have avoided the injury by the exercise of ordinary care on his part, and should further find, from the evidence, that the negligence of the defendant was greater than that of the plaintiff, you would be authorized to find for the plaintiff; but it would be your duty in that event to diminish the damages found for the plaintiff in proportion to the default or negligence attributed to him.” It is alleged that this charge was error, because: (1) it gave the substance of §§ 2781 and 4426 of the code without proper explanation as to the different classes of .cases to which the principles of law stated in these sections, involving separate and distinct defenses, are applicable; (2) it authorized a verdict for the plaintiff, although the jury may have found that the plaintiff’s injury was brought about by his own carelessness amounting to a failure to exercise ordinary care; and (3) it eliminated the defense that the injury was brought about by the negligence of the plaintiff amounting to a want of ordinary care.

The machine at which the plaintiff was injured was propelled by electricity. If the electrician applied the current without notice or warning when notice or warning ought to have been given, the consequences came literally with the swiftness of lightning, and the plaintiff was injured before he could or should have apprehended the defendant’s negligence. The provisions of the Civil Code (1910), § 4426, placed no duty upon the plaintiff of exercising ordinary care to avoid the consequences of the other party’s negligence until it was existing, and was either apparent or should have been apprehended. Western & Atl. R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 417 (91 S. E. 517). If the judge, by the reference to the duty of ordinary care on the part of the plaintiff, had in mind the ordinary care which is required by the terms of the Civil Code (1910), § 4426, there would seemingly have been error at least in the judge’s concept, because the principles expressed in this section were not applicable under the evidence. Georgia, F. & A. Ry. Co. v. Sasser, 4 Ga. App. 276 (6) (61 S. E. 505); Savannah El. Co. v. Lackens, 12 Ga. App. 765 (2) (79 S. E. 53). But if error existed as just supposed, it would have been against the plaintiff and not the defendant.

As to the complaint number 1 that the charge erroneously com-, bined the principles of §§ 2781 and 4426 without proper explanation as to the different classes of cases (or defenses) to which these principles are applicable,—a contention evidently founded upon the ruling in Americus &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105), and followed in numerous later adjudications,—we are of the opinion the instructions were in substantial accord with the law as enunciated in that case, and that they were not subject to the exception just referred to. Southern Ry. Co. v. Nichols, 135 Ga. 11 (4) (68 S. E. 789); Central of Ga. Ry. Co. v. Brown, 138 Ga. 107 (3) (74 S. E. 839); Louisville & N. R. Co. v. Stafford, 146 Ga. 206, 208 (91 S. E. 29); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 417 (91 S. E. 517). Charges very similar to .that now under consideration have been upheld as against like criticisms by defendants. See Brunswick &c. R. Co. v. Gibson, 97 Ga. 489 (1) (25 S. E. 484); Wrightsville &c. R. Co. v. Gornto, 129 Ga. 204 (8) (58 S. E. 769); Western & Atl. R. Co. v. Davis, 139 Ga. 493 (2) (77 S. E. 576); Wrightsville &c. R. Co. v. Floyd, 17 Ga. App. 461 (2) (87 S. E. 688).

As to the second and third assignments, which are in essence the same, we think these are also without merit. While it is true that the defense that the plaintiff’s injury was caused by his own negligence or was brought' about by his own carelessness amounting to a failure to exercise ordinary care, as authorized by §§ 2781, 2782, and 2783, is separate and distinct from that allowable under § 4426, the three former sections treating “of an active plaintiff who himself caused the injury,” and the latter section dealing “with a plaintiff who may have been passive and may therefore not have caused, but might have avoided, the injury” (Macon & B. Ry. Co. v. Anderson, 121 Ga. 666 (1) (49 S. E. 791)) and while the language of the excerpt complained of might seem to follow more closely the wording of § 4426, it was sufficiently general in scope not to exclude the defense that the plaintiff was “actively” negligent to the extent of causing his injury. This conclusion would seem necessarily to follow from a comparison of the charge now under review with the statement of the Supreme Court in the Luclcie case, supra, as to what would be sufficient to meet the requirements both of § 2781 and § 4426. The subsequent enactment of the provisions now contained in §§ 2782 and 2783 (see Ga. L. 1909, p. 160) does not affect the matter in principle. The court did not err as alleged in charging the jury as shown at the beginning of this division.

Another contention made in the motion for a new trial is .that the court erred in failing to instruct the jury that if the plaintiff brought about his injury by his own carelessness amounting to a failure to exercise ordinary care for his own safety, he would not be entitled to recover. This assignment, in effect, complains that the court did not submit the question of whether, under the evidence, the plaintiff should be treated as “an active plaintiff who caused the injury,” within the meaning of §§ 2781, 2782, 2783. The defense here alluded to was directly involved under the pleadings and the evidence, and it was the duty of the court, to give the jury a proper charge thereon. They were instructed, as shown above, that the plaintiff would be entitled to recover if he and the defendant were both negligent and the plaintiff was less negligent than the defendant, and if the plaintiff could not have avoided the injury by ordinary care. The only instructions given which stated anything like the converse of these propositions, —that is, which informed the jury as to the conditions under which the plaintiff should not recover,—were as follows: “If you should find from the evidence submitted that the defendant's employees committed the acts of negligence alleged in plaintiff's petition, and you should further find that the plaintiff, by the exercise of ordinary care for his own safetjq could have avoided the consequences of the alleged acts of negligence on the part of the defendant, you should render a verdict in favor of the defendant company. If you should find it to be true, from the evidence submitted, that the employees of the defendant committed the acts of negligence alleged in plaintiff’s petition, and you should also find it to be true from the evidence that the plaintiff himself was guilty of negligence in and about what he was doing at the time he was hurt, and that his negligence exceeded or-was equal, to the negligence of the defendant, it would be your duty to render a verdict for the defendant company.”

The first sentence of this extract clearly had reference to the ordinary care contemplated by § 4436, or, in other words, to a “plaintiff who may have been passive, and may therefore not have caused, but might have avoided, the injury,” and did not deal with the defense which it is claimed the court failed to submit. The next sentence only charged that the plaintiff could not recover if his negligence equalled or exceeded that of the defendant, whereas if the plaintiff (being “active”) brought about his injury by his own carelessness amounting to a failure to exercise ordinary care, he should not recover, whether his negligence was less than that of the defendant or not. This defense was not submitted anywhere in the charge, and the omission was error. Central &c. Ry. Co. v. Prior, 142 Ga. 536 (3) (83 S. E. 117); Wrightsville &c. R. Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 955). It may be that the ground of the motion relating to this question was incomplete for failure to show therein that the issue was raised by the pleadings and the evidence, but, since a reversal must result for other reasons, we have considered the assignment without regard to whether it may bé technically deficient.

Under the evidence the judge did not err in his charge on the right of the jury to determine the credibility of the witnesses. For the reasons set forth in the fourth and sixth divisions of this opinion, the court erred in refusing the defendant’s motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16774.
    COBB v. BAILEY.
    1. In an action for false arrest and imprisonment, there being evidence that the plaintiff was peeping in at the windows and doors of the defendant’s home, in violation of the act of 1919 (Ga. L. 1919, p. 386), and that when approached by the defendant and police officers and asked what she was about she replied that she intended to kill the defendant, the court’s instruction to the jury, in entire harmony with sections 917 and 921 of the Penal Code, though not in their exact language, was adjusted to the issues and was not subject to the objection that it was not a true statement of the law and was misleading.
    2. An instruction that if the plaintiff, at the time she was arrested, informed the police officers that she intended to kill the defendant, and they arrested her to prevent her from so doing, they would be justified in taking her into custody, and that if she made this threat in the presence of the defendant, and if under the evidence he had reasonable grounds to fear that she would kill him, then his invocation of the aid of the officers to take her into custody, to prevent her from so doing, would be justifiable, was not open to the objection that it was not a correct statement of the law, and that it expressed an opinion of what had been proved and was misleading.
    3. The verdict was supported by the evidence.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Arrest, 5 O. J. p. 39?, n. 75; p. 409, n. 36; p. 411, n. 56, 57.
    False Imprisonment, 25 O. J. p. 551, n. 66; p. 552, n. 68.
    Trial, 38 Cyc. p. 1603, n. 59; p. 1653, n. 11 New.
    Decided April 20, 1926.
    Action for damages; from Fulton superior court—Judge Ellis. July 6, 1925.
    Miss Maude Cobb brought an action against J. L. Kurfees for false arrest and imprisonment, alleging that on September 19, 1919, the defendant caused her to be arrested and imprisoned in the police station of the City of Atlanta; that the arrest and imprisonment were without prbbable cause, and were made by police officers of the city, under the express directions of the defendant; that she was arraigned before the recorder and was discharged by him for want of evidence against her; that the arrest and imprisonment were malicious; that at the time of the arrest she was en route to the defendant’s home on a certain street for the purpose of asking the return by him of certain letters and papers; that as she approached his home he was on his porch, and that on seeing her approach he procured the police officers to make the arrest. The defendant hied an answer in which he denied the material allegations of the petition and alleged that he had nothing to do with any alleged arrest and imprisonment of the plaintiff; that ho in fact protested to the officers against her arrest; that on' the night of the arrest the plaintiff was violating what is known as the “peeping Tom,” or “eavesdroppers act,” 6a. L. 1919, p. 386, in that on that night the plaintiff became a peeping Tom and eavesdropper on and about the premises of the defendant, and peeped through his windows and doors for the' purpose of spying upon and invading his privacy. The defendant having died, his administrator was made defendant. On the trial the verdict was for the defendant. The plaintiff’s motion for a new trial was overruled, and she excepted.

      Louis H. Foster, H. B. Cobb, for plaintiff.

      Reuben R. & Lotvry Arnold, Edward C. Hill, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) In an action for false arrest and imprisonment complaint is made by the plaintiff as to the following excerpt from the charge to the jury covering the right to make an arrest without a warrant: ,. “The law requires, as a general rule, to arrest a person, there must be some legal process issued; that is to say, there .should be a warrant sworn out to arrest a party having committed a crime or misdemeanor. But such arrest may be justifiable if the officer of the law making the arrest, or the person seeking the .arrest to be made, sees the crime committed,—committed in the presence of the' officer or the person seeking the arrest; or if not committed in the presence of th,e officer, if there is about to be a substantial failure of justice, or such emergency as would require prompt action on the part of the officer of the law, or this person seeking the process of the law, in immediately taking custody and control of the party whose arrest or imprisonment was sought.” The ground of plaintiff’s complaint as to this excerpt is that it is not a true statement of the law, and was calculated to mislead the jury. The Penal Code (1910), § 917, provides that “an arrest may be made by an officer under a warrant, or without a warrant if the offense is committed in his presence, or if the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.” Section 921 provides that “a private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest upon reasonable and probable grounds of suspicion.” There was evidence for the defendant to the effect that the plaintiff was in the act of peeping in at the windows and doors of the defendant’s home; that such was a violation of an act of the General Assembly (Ga. L. 1919, p.- 386) providing against a person lurking about the premises of another and playing the peeping Tom; that when the plaintiff was approached by the police officers and the defendant and asked what she was about, she replied that she intended to kill the defendant. In other parts of the charge the court instructed the jury that if they believed that the plaintiff, at the time she was arrested, informed the police officers that she intended to kill the defendant, and that they arrested her to prevent her from doing that, they would be justified, under the law, in taking her into custody; and that if she made this threat in the presence of the defendant, and' they believed, under the evidence, that he had reasonable ground to fear that she would kill him, this invocation of the aid of the officers, to take her into custody, to prevent her from doing that, would be justifiable. The court instructed the jury also as to the law embodied in the act of 1919 (Ga. L. 1919, p. 386) relating to peeping Toms and eavesdroppers, which makes such conduct a misdemeanor. While the excerpt complained of is not in the exact language of the code sections cited above, it is in entire harmony with them, was adjusted to the issues made in the case, and is not subject to the attack upon it. Accordingly, there was no error therein.

The other special ground of exception is to the following excerpt .from the charge to the jury, covering the right to make an arrest without a warrant: “If you believe that this plaintiff, at the time she was arrested, informed these police officers she intended to kill defendant, and they arrested her to prevent her from doing that, they would be justified, under the law, in taking her into custody, and if 'she made this threat in the presence .of Mr. Kurfees (the defendant), and you believe, under the' evidence, that he had reasonable ground to fear that she would kill him, that then this invocation of the aid of the officers, to take her into custody, to prevent her from doing that would be justifiable.” The ground of the plaintiff’s complaint as to this excerpt is that it is not a correct statement of the law, and that it expresses an opinion as to what has been proved in the case, and that it was calculated to mislead the jury. “A peace officer has the right to make an arrest without a warrant, for the purpose of preventing the commission of a felony.” 5 Corpus Juris, 399, citing the following cases: Carlton v. State, 63 Fla. 1 (58 So. 486); Cook v. Hastings, 150 Mich. 289 (114 N. W. 71, 14 L. R. A. N. 1123, 13 Ann. Cas. 194); Jenkins v. State, 3 Ga. App: 146 (59 S. E. 435); Schwarz v. Poehlmann, 178 Ill. App. 235; but see Allen v. State (Tex. Cr. App.), 66 S. W. 671, holding that a city marshal has no right to arrest without a warrant a person threatening verbally to take the life of another at some future time. “A peace officer may make an arrest without a warrant for the purpose of preventing an imminent breach of the peace.” 5 Corpus Juris, 408. “A private person also has a right to make an arrest without a warrant for the purpose of preventing the commission of a felony, and may arrest without a warrant one whom he finds attempting to commit a felony.” 5 Corpus Juris, 411, citing many cases. If the officer had a right to arrest without a warrant, or if the defendant had the right to arrest without a warrant, the defendant ivas not liable for making the arrest or for having the officers to make it. From the evidence before us, it would have been a felony for the plaintiff to have killed the defendant. Accordingly, there was no error in the excerpt complained of.

The verdict finding ample support in the evidence, and having the approval of the trial judge, and there being no error in the proceedings, it was not error for the court to overrule the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    16795.
    Frankum v. Farlinger.
    Negligence, 29 Oye. p. 467, n. 44, 48.
   Stephens, J.

1. The owner of premises abutting on a public -road is under no duty to keep the premises at a point some distance from the road in a safe condition for pedestrians who, not in the ordinary course of travel, wander off the road and come uninvited on the premises. Thus, a person traveling along the road upon a dark night in an automobile, who leaves the automobile and goes uninvited upon the premises, and, at a jioint eight or ten feet from the road, falls into an unguarded well and is injured, can not recover from the owner of the premises for such injuries. Savannah, Florida & Western R. Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314); Etheredge v. Central of Ga. R. Co., 122 Ga. 853 (50 S. E. 1003).

Decided April 20, 1926.

Action for damages; from Habersham superior court—Judge J. B. Jones. August 13, 1925.

John E. Franlcum, McMillm & Erwm, for plaintiff.

J. 0. & H. E. Edtuards, for defendant.

2. The petition set forth no cause of action, and was properly dismissed upon demurrer.

Judgment affirmed.

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


author: Bell, J.

text:
    16840.
    EDWARDS et al. v. CITY OF CLARKESVILLE et al.

    1. The petition for validation of bonds was not subject to general demurrer for the want of necessary allegations, nor subject to any of the grounds of special demurrer attacking certain allegations as mere conclusions of the pleader.
    2. The election did not appear to be void merely because the ordinance calling it provided that it should be held under the “Australian ballot system, now in force in” the county in which the municipality desiring to issue the bonds is located.
    3. That the notice to the voters provided that the ballots should have written or printed thereon the words “For school bonds” or “Against school bonds,” and that such ballots may have been used, did not invalidate the election, notwithstanding the ordinance calling the election prescribed that the ballots should bear the words “For public school bonds for schoolhouse” or “Against public school bonds for schoolhouse.” The court did not err in overruling the demurrers.
    4. The court did not err in admitting in evidence the list of registered voters over objection that it did not appear to have been purged or to have been approved by the mayor and council. This ruling will dispose of a similar objection to the admission of the registration book.
    5. The election was not invalid because it did not appear that the mayor and council had published the names of the election managers in accordance with a certain provision of the city charter.
    6. The evidence did not show that the proposed bonds would increase the city’s debt to an amount beyond the constitutional limit.
    Evidence, 22 C. J. p. 137, n. 75; p. 139, n. 27, 28.
    Municipal Corporations, 28 Cye. p; 1542, n. 51; p. 1585, n. 27 New; p. 1590, n. 69 New, 74; p. 1591, n. 86; p. 1593, n. 6.
    Pleading, 31 Cyc. p. 51, n. 71; p. 280, n. 5; p. 281, n. 6 New; p. 291, n. 70.
    Schools and School Districts, 35 Cye. p. 993, n. 1 New.

      7. It was not necessary that the municipality should make provision for the payment of the bonds prior to their validation. The judgment of validation was not erroneous for any reason urged.
    Decided April 20, 1926.
    Validation of municipal bonds; from Habersham superior court —Judge J. B. Jones. June 13, 1925.

      J. G. Edwards, II. E. Edwards, T. D. Phillips, for plaintiffs in error.

      Robert McMillan, solicitor-general, G. 8. McMillan, contra.
   Bell, J.

Bobert McMillan, solicitor-general, filed a petition to the superior .court of Habersham county against the City of Clarkesville, for the validation of bonds. The allegations of the petition were substantially as follows:

1. The City of Clarkesville is a municipal corporation situated in Habersham county and in the Northeastern judicial circuit. ■

2. On May 16, 1925, an election Avas held in said city, “in terms of the law,” on the question of whether the city should issue bonds in the sum of $8,000 for the purpose of raising money with which to build and equip a school building.

3. Notice of said election “was giAren and published as required . by law.”

4. The registration list of the qualified voters of said city was “furnished in conformity with the law,” and showed the number of qualified registered voters to be 192, 150 of whom voted, 122 in favor of bonds and 28 against bonds.

5. After the close of the polls and on May 19, 1925, the election managers, together with the mayor and council, canvassed the returns and declared the result of the election, and it appearing that more than two thirds of the qualified voters who voted in the election voted in favor of the bonds and that such two thirds was more than a majority of all the registered voters, the election was declared, “in terms of the law,” to be in favor of the issuance of the bonds, “all of which was according to the statutes in such cases made and provided.”

6. Within six months after the declaration of the result of the election, the solicitor-general of the Northeastern circuit was, “in terms of the law,” notified in writing of the holding of such election and of the result thereof.

7. This paragraph showed the amount of annual interest to be paid, and also when the bonds should mature and be retired.

8. Taxes shall be levied and collected annually to provide a sufficient sinking fund and also to pay the annually accruing interest, etc.

9. “Said election so held as stated was prima facie in favor of the issuance of said bonds.”

10. The indebtedness to be created by the issuance of the bonds, “when added to all other indebtedness of said city, will not exceed the constitutional limit of seven per cent, of the assessed valuation of the taxable property of said city.”

11. All “the requirements of the law respecting the calling, ordering, and holding of said election, of declaring the result thereof, the service of the notice thereof on the solicitor-general, in all respects with the law of said State, have been fully complied with.”

The petition made the prayers usual in such eases.

There was attached to the petition a copy of the notice to the solicitor-general, with exhibits attached to the notice, consisting-of copies respectively of the ordinance authorizing the election, of the notice to the voters required by law to be published previously to the election, and of the order or judgment of the managers and the mayor and council declaring the result. The ordinance provided that those voting in favor of bonds should have printed or written on the ballots the words “For public school bonds for schoolhouse,” and that those voting against bonds should use ballots in the same form, except having “against” instead of “for.” The notice to the voters stated that the ballots should have printed or written thereon respectively the words “For school bonds” and “Against school bonds.” The ordinance further provided that “said election will be held under the Australian ballot system now in force in Habersham county, Georgia.”

At the time appointed for the hearing the city filed its answer under oath, admitting all the allegations of the petition; and J. C. Edwards, H. E. Edwards, and T. D. Phillips, alleging themselves to be citizens and taxpayers of the City of Clarkesville, appeared and objected to the validation, by a demurrer to the petition and also by a plea or answer. The demurrer was both general and special, and the grounds thereof were as follows: No sufficient facts are alleged to authorize a judgment of validation. The allegations of paragraphs 2, 3, 4, 5, 9, 10, and 11, and especially the expressions, “in terms of the law,” “published as required by law,” “in conformity with law,” “and all of which was according to the statutes in such cases made and provided,” and the like, are mere conclusions of the pleader,- without any facts or sufficient facts being shown to support them. There is no such election system as the “Australian ballot system” now of force in Habersham county, Georgia, for elections to be held in Habersham county or in the City of Clarkesville, and the election as ordered was therefore illegal. The interveners’ plea or answer denied the several allegations of the petition and further alleged: There is no such election system in force in the City of Clarkesville as the Australian ballot system, and the election was therefore illegal and void. The managers were not present all the time during the hours of the election “as required by the rules of the act referred to.” The ballots cast had printed or written thereon the words “For school bonds” or “Against school bonds,” whereas the ordinance required the words “For public school bonds for schoolhouse” or “Against public school bonds for schoolhouse,” and for this reason the ballots as cast were illegal and void, and the result and the declaration of the result were consequently void. The court overruled all grounds of the demurrer, and, after hearing evidence, entered a judgment of validation, and the interveners excepted. Other facts will be stated in the opinion below, the first three divisions of which will have reference to the demurrers, and the remainder of which will deal with assignments of error on the admission of evidence and on the final judgment in view of the evidence.

The law applicable to cases of this character provides that within a certain time after the solicitor-general has been served with the notice of the election and the result thereof, as prescribed by section 445 of the Civil Code (1910), he shall prepare and file in the proper court a petition in the name of the State and against the municipality or political division desiring to issue the bonds, “setting forth the service of the notice . . , the name of the county, municipality, or division seeking to issue said bonds, the amount of bonds to be issued, for what purpose to be issued, what interest they are to bear, how much principal and interest to be paid annually, when to be paid in -full, and the further fact that an election was held for the issuance of said bonds, and that said election is prima facie in favor of the issuance of the bonds.” See Civil Code (1910), § 446. It is necessary, of course, to state the facts, and this should be done with sufficient particularity to meet the requirements of good pleading. A petition which fails to show, except by a bare conclusion, that the election resulted prima.facie in favor of the issuance of the bonds is fatally defective and subject to general demurrer. Smith v. Dublin, 113 Ga. 833 (2) (39 S. E. 327). But legal results arising from the facts alleged may be pleaded in the form of a conclusion, and a petition which complies with this rule will not be subject to a general demurrer if a cause of action is otherwise stated. Nor is a conclusion in a pleading subject to special demurrer where the inference therein stated is legitimately deducible from the particular facts shown. Western & Atlantic Railroad v. Reed, 33 Ga. App. 396 (2), 404 (126 S. E. 393), and cases cited.

In the case before us the petition sufficiently gave-the facts as to all matters concerning which allegations were required, and was not subject to general demurrer for the want of sufficient allegations; and since the conclusions which were made with respect to these mailers were authorized by the facts pleaded, they did not expose the petition to special demurrer. The petition might have been subject to demurrer because of certain other conclusions, if these had related to matters which the law required the petition to cover. For instance, paragraph 3 alleged that “notice of said election was given and published as required by law,” and, while a copy of the notice to the voters appeared as an exhibit, there was nothing to show when, where, or for what period this notice was published. Paragraph 4 alleged that “the registration list of the qualified voters . . was furnished in conformity with law” (italics ours), and paragraph 9 averred that the indebtedness to be created, when added to all other indebtedness of the city, would not exceed the constitutional limit. No facts were alleged in support of these conclusions. But where the petition of the solicitor-general sets forth with sufficient certainty the facts called for by section 446, it is not necessary to add more, and all the allegations of paragraphs 3, 4, and 9, to which we have just alluded, were purely voluntary. The law does not require an allegation as to publication of the notice to the voters, or as to the furnishing of the list of the registered voters (it being sufficient merely to show the number of such voters), or as to the city’s indebtedness not exceeding the limit allowed by the constitution. If there were unsupported conclusions of the pleader in reference to these matters, the interveners could not complain. The burden would be on them to plead and prove any facts which might show that the bonds should not be validated but as to which the statute does not require allegations to be made by the solicitor-general. If the petition filed by this officer contained allegations that were unnecessary to his case, the interveners had no right to any further specification than he chose to give them. The petition, having given information not required, was not bad for failure to supply it more in detail. Western & Atlantic Railroad v. Reed, 33 Ga. App. 396 (2), 400 (126 S. E. 404).

Of course, if a petition, instead of merely omitting to state facts in support of a conclusion unnecessary but not unfavorable to the plaintiff’s case, should affirmatively disclose a defense, it would be fatally defective; but such could not be the effect of any of.the allegations so far considered. We shall endeavor to show presently that the same is also true of certain other averments of which it is sought to take advantage by the demurrer. What we hold here is that the petition was not subject to general demurrer for the want of necessary allegations, nor subject to any of the grounds of special demurrer attacking several of the allegations as mere conclusions of the pleader. Spencer v. Clarkesville, 129 Ga. 627 (2, 3) (59 S. E. 274); Harrell v. Whigham, 141 Ga. 322 (2, 3) (80 S. E. 1010); Sewell v. Tallapoosa, 145 Ga. 19 (9) (88 S. E. 577); Stephens v. School District, 154 Ga. 275 (1, 2) (114 S. E. 197); Powell v. School District, 26 Ga. App. 135 (105 S. E. 616).

The petition did not show that the election was illegal and void because it appeared from the copy of the ordinance that it should be held under the Australian ballot system “now in force in Habersham County.” The charter of the city contains certain provisions as to how elections shall be held and empowers the mayor and council “to pass such rules and regulations governing all elections held in said city, as may be necessary, when not in conflict with this act.” See Ga. L. 1917, p. 581, § 12. If the system of elections referred to in the ordinance is that provided for in the act of 1922 (see Ga. L. 1922, p. 97), it does not appear that a rule or regulation providing for its adoption in the city would be in conflict with the city’s charter, and this is true whether the system has been adopted in the county and whether adoption alone by the county could affect the city or not. But even in the absence of all provisions therefor, to say merely that the election was to be held or was held under some system indefinitely described as the “Australian ballot system” would not affirmatively disclose that the election was void. Section 126 of the Civil Code (1910) provides that “No election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold them, if it is not shown that, by that non-compliance, the result is different from what it would have been had there been a proper compliance.” See also Coleman v. Board of Education, 131 Ga. 643 (9) (63 S. E. 41); Brumby v. Marietta, 132 Ga. 408 (1) (64 S. E. 321).

That the ordinance provided for the use of ballots having printed or written thereon the words “Eor public school bonds for schoolhouse” or “Against public school bonds for schoolhouse,” and that the subsequent notice to the voters prescribed ballots bearing the words “For school bonds” or “Against school bonds,” would not render the election illegal even though it should be presumed that the ballots as actually used and voted were in the form prescribed in the notice, and were, therefore, to an extent not in accordance with the provisions of the ordinance. “An election will not be declared void because of a slight departure from the phraseology which the statute prescribes shall be written or printed on the ballots, when it is clear, from the ballots cast, that the voters’ intention with respect to the question submitted is fully indicated. DuPre v. Cotton, 134 Ga. 316 (67 S. E. 876).” Stephens v. School District, 154 Ga. 275 (1) (114 S. E. 197). The notice to the voters disclosed, in accordance with the ordinance, the true purpose for which it was proposed the bonds should be issued. The court did not err in overruling the demurrers.

Complaint is made that the court “erred in allowing in evidence the registration list of voters furnished the managers for said election over the objection of interveners on the ground that said list showed on its face that it had not been properly purged by the mayor and council nor approved by the mayor and council as required by the charter of said city.” The city charter requires that the mayor and council shall provide for the registration of voters, and makes the city clerk the registrar. It is his duty to keep open at certain times the registration books of the city, and it is “the further duty of the city clerk to furnish a registration list in alphabetical order of all names, properly registered, and deliver the same immediately after the registration book closes to the mayor and council, who have authority by this act to properly purge said registration list and investigate, and if in their opinion any one or more voters registered on said list is not entitled to vote in such election it will be their duty to strike said name or names from said list. That after the said list has been thoroughly purged by the mayor and council it shall be their duty to approve said list and turn over said registration book and list to the election managers. The original book shall be kept at the polls by said managers of the election for the inspection of the voters and citizens of said city, but that said élection managers shall be governed as to who shall be entitled to vote in said election by the alphabetical list duly approved and turned over to them by the mayor and council of said city.” See Ga. L. 1917, p. 581, § 11. Counsel for plaintiffs in error do not insist in their brief that it appeared from the face of the registration list that it had been purged improperly, but the contention is that it appeared not to have béen purged at all. Therefore, under the construction placed upon, it by its authors, the assignment of error may be dealt with as if the word “properly” had been omitted. In the absence of anything to the contrary, the persons whose names were enrolled upon the registration book and copied therefrom by the city clerk on the registration list were prima facie entitled to vote. It was the duty of the mayor and council to purge the list only when purging was necessary. If there were names which ought to have been stricken, the burden was upon the interveners to show the fact. Brown v. Atlanta, 152 Ga. 283 (3) (109 S. E. 666). The presumption is that the mayor and council did their duty, and that they found upon the list no names of persons not entitled to vote.

The charter does require that the mayor and council shall approve the list, but it does not say that the approval shall be in any particular form, or even that it shall be in writing. Compare York v. Lowry, 34 Ga. App. 389 (3) (129 S. E. 793). Referring again to the interpretation of the assignment of error as made by counsel, it is not contended that the list showed affirmatively that the mayor and council had not approved it, but the insistence is that there was no evidence of such approval. In other words, the contention is not that the approval was negatived, but is simply that it was not shown. The fact that the list was delivered by the mayor and council to the election managers is within itself sufficient evidence of their approval of it, in the absence of anything to show their disapproval. Compare English v. Poole, 31 Ga. App. 582 (4) (121 S. E. 589).

Furthermore, the presumption being that those who were registered were entitled to vote, the- mere absence, of the mayor and council's approval of the list would not rebut such presumption nor render the list inadmissible for the purpose of showing the number of registered voters in the city. See Civil Code (1910), § 126; Coleman v. Board of Education, 131 Ga. 643 (9) (63 S. E. 41); Brumby v. Marietta, 132 Ga. 408 (2) (64 S. E. 34); Gracen v. Mayor of Savannah, 142 Ga. 141 (9) (82 S. E. 453).

What is said above will dispose of a similar objection to the admission in evidence of the registration book.

Section 9 of the charter of Clarkesville provides that the authorities, “whenever any election is to be held, shall -post at the courthouse and publish in a newspaper published in said city a notice that any election will be held, giving the date of said election and the names of the managers thereof thirty days before the date of said election.” This provision, certainly as to giving the names of the managers, is merely directory; and even if it were otherwise, the judgment of validation would not be illegal merely because the proof submitted by the solicitor-general or the municipality failed to show that the names of the managers had been published in accordance with this section of the charter. It is not necessary that such information should be given in the notice to the voters as prescribed by section 440, nor that the petition of the solicitor-general should make any allegation in reference to such matter. If the failure to publish the names of the managers could be material, the burden would be on the interveners to prove it, and this they could not do merely by calling attention to an omission in the notice given to the voters under section 440.

A liability of a municipality for a legitimate current expense, where there is at the time of incurring the liability a sufficient'sum in the treasury which may be lawfully used to pay the same, or where a sum sufficient to discharge the liability can be raised by taxation during the current year, is not a debt within the meaning.of the constitutional provision against the creation of debts by municipalities and other political divisions without due assent of the voters. Butts Co. v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244); Monk v. City of Moultrie, 145 Ga. 843 (1) (90 S. E. 71); City of Waycross v. Tomberlin, 146 Ga. 504 (5) (91 S. E. 560); Mayor of Washington v. Faver, 155 Ga. 680 (6) (117 S. E. 653). The plaintiffs in error contend that the evidence shows that the bonds, if issued, would increase the city debts to an amount $1,229.40 in excess of seven per cent, of the assessed valuation of the taxable property; but it appears that more than $1800 of the amount included in the calculation represents liabilities for proper current expenses for the payment of which funds could be lawfully raised during, the year in which such liabilities were incurred, and that when such sum is deducted, as it should be, the proposed bonds will not increase the city’s debt beyond the constitutional limit.

The judgment of validation was not illegal because it did not appear in the ordinance calling the election, or otherwise, that provision had been made for the payment of the indebtedness sought to be incurred. “It is not necessary under the constitution that provision for the payment of such indebtedness shall be made until fat or before’ the liability is created, and such provision need not be made before the application for validation. Epping v. City of Columbus, 117 Ga. 263 (12) (43 S. E. 803).” Davis v. Orland Consolidated School District, 152 Ga. 76 (7) (108 S. E. 466). The judgment is not erroneous for any reason urged.

Judgment affirmed.

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


text:
    16843.
    Burkhalter v. Burkhalter.
    Banks and Banking, 7 O. J. p. 663, n. '78 New.
    Limitation of Actions, 37 C. J. p. 957, n. 75; p. 961, n. 4; p. 1254, n, 42.
    Pleading, 31 Cyc. p. 311, n. 53,
   Bell, J.

1. Where a general deposit of money in a bank, to bear interest at a specified rate from date, was not evidenced by the usual certificate of deposit or other writing fixing the time of payment, the statute of limitations did not begin to run in favor of the bank until demand for payment, “such demand not being delayed until the right had become stale.” In such a ease the claim could not be said to be barred as a matter of law where the demand was made six and one half years after the date of the deposit. Munnerlyn v. Augusta Savings Bank, 88 Ga. 333 (3) (14 S. E. 554, 30 Am. St. R. 159).

2. Where a person who had money on deposit in a bank under the terms indicated above agreed with an individual to withdraw the money from the bank and to lend it to him upon the same terms and conditions (except as to the rate of interest) under which it had been held by the bank, and the money was withdrawn and loaned accordingly, the individual was substituted for the bank as a debtor (McGregor v. Battle, 128 Ga. 577, 580, 58 S. E. 28, 13 L. R. A. (N. S.) 185; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S. E. 589) ; and the rule as to the operation of the statute of limitations which would have obtained as between the depositor and the bank was applicable as between the parties to the loan agreement. Compare Patterson v. Blanchard, 98 Ga. 518 (25 S. E. 572).

3. Since, under the other facts appearing, if there had been no substitution v of debtors and the suit had been brought against the bank, it could not have been said as a matter of law that the claim was barred, the debt against the substituted individual, contracted upon the same terms as to maturity, can not be held barred as a matter of law where a demand for its payment was made within six and a half years from the date of the loan, and suit was brought to recover the amount within four years after the demand. •

4. Under the above rulings, the petition was not subject to the demurrer invoking the statute of limitations. The facts in this case are to be distinguished from transactions involving notes payable on demand (see Civil Code (1910), §§ 3434, 4292; Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522, 124 S. E. 72), and also from loans under oral agreements silent as to the matter of maturity. See Chandler v. Chandler, 62 Ga. 612; Teasley v. Bradley, 110 Ga. 497 (3) (35 S. E. 782, 78 Am. St. Rep. 113). Nor do the facts of the instant record require a decision as to when the statute of limitations would begin to run against a loan to an individual, the terms of which are oral and provide for payment on demand, but as to which there is not, as here, a stipulation that the money is received under the same terms and conditions (except as to interest) on which money is received by a bank on general deposit. See Patterson v. Blanchard, supra; Sweet v. Irish, 36 Barb. 467 (32 L. R. A. (N. S.) 493 note); Re Fallon, 110 Minn. 213 (2) (124 N. W. 994, 32 L. R. A. (N. S.) 486).

5. The petition alleges that the loan to the defendant was made “the first part of April, 1918,” the exact date not being stated. Held: The petition was not, on account of this omission, subject to demurrer upon the ground that it failed to show when the loan was made, “thus failing to furnish defendant with an itemized statement as required by law.” Assuming that the exact date should have been alleged (but see Bland v. Strange, 52 Ga. 94; Busby v. Marshall, 125 Ga. 645 (1), 54 S. E. 646; s. c. 3 Ga. App. 764, 60 S. E. 376; Hicks v. Hamilton, 3 Ga. App. 112, 59 S. E. 331), since there was a mere indefiniteness and not a total want of allegation as to date, the defect could not be reached by a demurrer which, instead of objecting that the date was not alleged with sufficient particularity, complained only that the petition did not show “when” the loan was made. Green v. State, 109 Ga. 536 (1) (35 S. E. 97); Alford v. Davis, 21 Ga. App. 820 (4) (95 S. E. 313). As to the insufficiency of such ground of the demurrer to invoke the statute of limitations, see Smith v. Central &c. Ry. Co., 146 Ga. 59 (90 S. E. 474).

Decided April 20, 1926.

Complaint; from city court of Beidsville-—Judge Cowart. August 28, 1925.

B. B. Bubberly, J. T. Grice, for plaintiff in error.

P. M. Anderson, contra.

6. The evidence did not conclusively show that the plaintiff had demanded payment of the principal more than four years before the filing of the suit. Such other and previous demands as may-have been made by her could have been found to have had reference only to the payment of accrued annual interest which, under the terms of the loan, she had a right to demand without demanding the principal. In this respect the case differs from Poole v. Trimble, 102 Ga. 773 (29 S. E. 871), in which it conclusively appeared that the plaintiff made a general demand before any interest was due.

7. The evidence was in substantial accord with the petition, and did not demand a finding in favor of the special plea of the statute of limitations, which plea was in addition to the demurrer.

8. The above rulings will dispose of all questions argued or referred to in the brief for plaintiff in error. The demurrers to the petition were properly overruled, and the judgment refusing the motion for a new trial was not erroneous for any reason urged.

Judgment affirmed.

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


text:
    16855.
    SMITH v. BUGG, receiver.
    1. Irrespective of whether the original petition, was duplicitous, as urged by the demurrer, the plaintiff, having submitted to the adverse ruling on the demurrer, by seeking to amend her petition so as to conform to that ruling, will not be heard to complain that the ruling was erroneous and that the amendment which she chose to offer was in fact unnecessary. McConnell v. Frank F. Block Co., 26 Ga. App. 550 -(106 S. E. 617). And this is true although she may have excepted to the ruling. “Where a plaintiff is not satisfied with such a ruling, he should stand upon his petition as drawn, refuse to amend, and allow his case to be dismissed, and except to that judgment.” Collins v. Myers, 28 Ga. App. 457 (111 S. E. 686). The first ground of exception is therefore without merit.
    Pleading, 31 Oye. p. 271, n. 13; p. 351, n. 36 New; p. 358, n. 2; p. 465, n. 20; p. 745, n. 20; p. 749, n. 33.

      2. Where a petition was heard on demurrer, and the court passed an order the legal and reasonable purport of which was not to dismiss the petition, but declaring that it would be dismissed unless amended within a given time in response to the demurrer, this conditional order could not operate as a final judgment of dismissal, hut upon the filing of an amendment within the time allowed and in response to the order, and upon objection thereto, the merits of the petition as amended were opened up for a fresh adjudication, and it became the duty of the court thus retaining jurisdiction of the case to entertain and allow any proper amendment to the petition, offered at the final hearing and before the ease became actually dismissed.
    Decided April 20, 1926.
    Action for damages; from Talbot superior court—Judge McLaughlin. September 14, 1925.
    A special demurrer to a petition, on the ground of duplicity, was sustained by the judge, who passed an order sustaining the demur,rer and providing that “the plaintiff is hereby given five days from the date of this order to amend and elect upon which allegations right of action is sought; otherwise and in the event of the failure of plaintiff to amend and elect, it is ordered that said petition be dismissed.” No exceptions pendente lite were taken; but on the contrary, within the time allowed, the plaintiff filed an amendment, which was allowed, subject to demurrer, seeking but failing to conform to the adverse ruling of the court on the demurrer, and offering and praying leave to amend further in the event the court should determine that the objection urged had not been met. In this amendment the plaintiff sought to reserve the right to except to the order requiring the amendment. On the final hearing and after the expiration of the five days allowed, the defendant filed a motion to dismiss the petition as amended, as failing to conform to the previous ruling, and renewed his demurrer to the petition as amended. Upon this hearing the plaintiff, on leave granted by the court, prepared and submitted an additional amendment completely curing the defect pointed out by the demurrers. Upon objection of the defendant this amendment was disallowed, and the petition as originally amended was dismissed on the defendant’s motion on the ground that the plaintiff had failed to comply with' the original order of the court. The defendant excepts to the order passed on the original demurrer, requiring her to amend, to the disallowance of her final amendment, and to the order dismissing the petition.

      J. A. Smith, N. F. Culpepper, B. A. McGraw, for plaintiff.

      Love-joy & Mayer, A. P. Persons, Brandon <& Hynds, for defendant;
   Jenkins, P. J.

Section 5681 of the Civil Code (1910) provides that “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by.” The essential purpose and function of a special demurrer is to compel amendment. The sustaining of a special demurrer does not, ipso facto, work a dismissal of a petition, even though no amendment is offered. News Publishing Co. v. Lowe, 8 Ga. App. 333 (69 S. E. 128). The rule appears to be different as to the effect of sustaining a general demurrer. Wells v. Butler’s Builders’ Supply Co., 128 Ga. 37 (57 S. E. 55); Speer v. Alexander, 149 Ga. 765, 767 (102 S. E. 150). What the sustaining of a special demurrer, acquiesced in or not excepted to, does finally adjudicate is that the petition as it stands is defective and must be amended, and, when time is allowed, that it must be amended within that time. Baker v. Atlanta, 22 Ga. App. 483 (96 S. E. 332). TJpon these questions it is a final adjudication, irrespective of whether the demurrer was properly sustained or not. If in response to an adverse ruling on a special demurrer the plaintiff fails to amend, the effect of the ruling on the demurrer is to eliminate the portion of the petition held bad under the demurrer. White v. Little, 139 Ga. 522 (3) (77 S. E. 646); Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (1) (55 S. E. 968); McSwain v. Edge, 6 Ga. App. 9, 11 (64 S. E. 116). Such a result may, however, sometimes render the petition subject to dismissal. In order to avoid such a consequence from the sustaining of a special demurrer, the pleader is required to amend instanter, unless the judge should “allow a reasonable time in his discretion for making and filing such amendment.” Civil Code (1910), § 5628. It seems clear that where the order sustaining a special demurrer does not in fact and in terms dismiss the petition, it is not a final disposition of the case, even though it in effect declares that it will be dismissed if the defect pointed out be not cured by amendment within a specified time. This is true because “if the effect of that judgment could be construed as dismissing the petition, then the case was no longer pending in the trial court, and therefore the petition could not have been there amended. It would be inconsistent to sustain a demurrer to a petition and dismiss it, and in the same order grant leave to the plaintiff to amend the petition.” Georgia Ry. &c. Co. v. Kelly, 150 Ga. 698, 699 (105 S. E. 300); and see Steed v. Savage, 121 Ga. 84 (48 S. E. 689). Such an order could not possibly adjudicate the merits of the amendment which it provides may thereafter be offered; and consequently the subsequent filing of such an amendment “opens the merits of the whole pleading to a new adjudication, and a conditional order of dismissal made on the hearing of a previous demurrer to the original petition concludes nothing.” Folsom v. Howell, 94 Ga. 112 (21 S. E. 136); Steed v. Savage, supra.

The decisions, however, seem to recognize another class of orders, where, in sustaining the demurrer, it is sought to dismiss the petition in prEesenti and yet at the same time grant an extension of time within which the defect can be cured by amendment. Under the reasoning quoted from the Kelly case (150 Ga. 698, 699, 105 S. E. 300), such an order would seem itself to be duplicitous, since how could a court be left to entertain a future amendment when jurisdiction of the case had been lost ? If such a duplex order of dismissal is final at all, its finality relates from the date of its rendition. Waller v. Clarke, 132 Ga. 830 (64 S. E. 1096). But could it have been final when it did not necessarily finally dispose of the case? The only theory that might possibly seem to reconcile the inconsistency of an order which purports to be both final and conditional is formulated in the older case of Pratt v. Gibson, 96 Ga. 807 (23 S. E. 839), which treats the order of dismissal as final, but coupled with the right on the part of the plaintiff to bring about a reinstatement of the case by complying with the terms and conditions imposed. In such a case, at least on general demurrer, the only question involved in the final hearing is whether the proffered amendment met the original demurrer. Speer v. Alexander, 149 Ga. 765 (102 S. E. 150). Under such an unexcepted-to order of actual dismissal, coupled with a grant of time in which to amend, both the Supreme Court and this court have held that a failure to amend within the time specified operates automatically to dismiss the case. Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Atlantic Re fining Co. v. Peerson, 31 Ga. App. 281 (120 S. E. 652). It will be observed, however, that in the Peerson case, supra, which dealt with an order actually dismissing the case, the court said: “In our opinion, the motion to dismiss partook so much of the nature of a demurrer that when the judge, on the hearing of that motion, adjudged that the amendment did not cure the defective allegation in the petition, the court could have given plaintiff an opportunity to cure such allegation by further amendment; and had it been perfected, the court could have then properly overruled the motion to dismiss.” We think that if on the subsequent date of hearing the court could have permitted an additional amendment in order to cure the deficiency of the one filed and allowed within the time specified, it not only could, but should, have done so. We conceive the pleader’s privilege to amend to exist as a matter of right, under the Civil Code (1910), § 5681; and it is only limited by the-court’s jurisdiction of the cause. Of course, if the plaintiff should wholly fail to avail himself of the right to amend within the time of indulgence granted, the case would either stand automatically dismissed or would thereupon have to be dismissed according to the language used in the order, which, being unexcepted to, has become the law of the case. In the one instance the court would have automatically lost jurisdiction, in the other it would retain jurisdiction only to execute the law of the case as prescribed by the terms of the order. But it would seem that where an amendment is actually offered and allowed subject to objection within the time prescribed, the case stands precisely as it stood when the original demurrer was entertained. If at that time the court had simply sustained the demurrer and by its order dismissed the case subject to amendment, without granting an extension of time therefor, it does not seem that the court would have lost its jurisdiction if the plaintiff had thereupon offered an imperfect amendment. Surely the court could have permitted an additional amendment. The only purpose and effect of the last clause of section 5628 is to permit the extension of time in which to amend without prejudice to the pleader. At the expiration of that time he stands exactly as he would have stood at the time the demurrer was heard, if no new extension had been granted.

But whatever may be the correct answer to the questions touched upon in the preceding paragraph, we do not think the present case is one in which the original order on the demurrer should be construed as final in the sense that it purported to actually dismiss the case. The Supreme Court ruled in the case of Davis v. Bishop, 158 Ga. 66, 70 (122 S. E. 555), in which the order merely sustained the demurrer and limited the time in which the plaintiff could amend the petition, that “where the defects were in part cured by an amendment filed within ten days, an amendment filed and allowed after the expiration of tire ten days, which complete!}' cured the defects, was properly allowed.” While the decision expressly failed to embrace in its ruling the contingency in which the order provides that the petition is or will be dismissed, we think that in principle the holding must logically be extended so as to embrace a case where the order does in fact so provide. If, under the law of the case as embodied in the order, the petition could be amended only within a prescribed time, the jurisdiction of the court to entertain amendments is (as held in the Davis case, supra) carried beyond that time by reason of the filing, within the period prescribed, of an imperfect amendment, and it seems to follow that the jurisdiction would be likewise preserved by a timely but imperfect amendment, as against the law of the case that the petition would be dismissed if not amended within the time stated. In the Davis case the court cites the decision in Zipperer v. Helmnly, 148 Ga. 480 (97 S. E. 74), which goes even further in holding that where the true purport of the order is not to dismiss, it is within the power of the court, at the final hearing of the case on demurrer and after the expiration of the period allowed by the order, to allow an amendment, even though the amendment filed within the time specified has never been previously allowed. Under authority of the decision in the Zipperer case especially, it seems only necessary to determine in the instant case whether the original order entered on the demurrer should be construed as dismissing the petition. Upon that question we think the ruling in the Zipperer ease is itself absolutely controlling. The order in the instant ease sustained the demurrer as to duplicity and provided as follows: “However, it is considered, ordered, and adjudged that the plaintiff is hereby given five days from the date of this order to amend and elect upon which allegations right of action is sought; otherwise and in the event of the failure of plaintiff to amend and elect, it is ordered that said petition be dismissed.”'It does not provide that in event of such failure the petition be “hereby” dismissed, or “is” dismissed (as in Atlantic Refining Co. v. Peerson, supra), or “stands” dismissed (as in Clark v. Ganson, supra, Speer v. Alexander, supra, and see Georgia Ry. &c. Co. v. Kelly, supra). The element of futurity in the process of dismissal is clearly indicated. In the Zipperer case the order appears to have gone much further towards actual dismissal than in the instant case, since in that case, after providing for the amendment within a time stated, it declared: “and if not presented the case stands dismissed.” In that case the court said: “Properly construed, the order of court allowing time in which to amend did not purport to dismiss the petition.” In Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (1) (78 S. E. 902), the court held: “Where a demurrer to a petition was filed, and on the hearing the court made an order sustaining all the grounds of the demurrer except three, and directing that the case be dismissed unless the plaintiff would, within five days, offer an amendment to meet the grounds of demurrer which were sustained, and within the time allowed the plaintiff did amend the petition to meet the grounds of demurrer, which amended petition was likewise demurred to, and the court on hearing the second demurrer overruled the same, except two grounds which were sustained, the original order of the court is to be treated as a conditional and not an absolute and final judgment, as it did not actually dispose of the case.” In Folsom v. Howell, supra, it appeared that the order provided that the petition “be dismissed,” unless, etc., and yet it was held to be a conditional order only, “not dismissing the petition, but declaring that it would be dismissed unless amended within a given time.” It is true that in Waller v. Clarke, 132 Ga. 830 (64 S. E. 1096), the order provided “that the petition be dismissed, unless the plaintiff shall within thirty days amend to meet the grounds,” and that it was treated by the court as a final order of dismissal; but in the opinion attention is called to the fact that the plaintiff himself, by moving to reinstate, “considered and treated” the case as having already been dismissed. In the instant case it would seem that not only did the plaintiff refuse to treat the case as having been originally dismissed, but that the defendant itself treated it otherwise by moving, at the final hearing, to

dismiss. Moreover, the decision in the Waller case is expressly criticised by the Supreme Court in the Kelly case.

We have given to the question discussed in the opinion extended consideration, and we can very well see how the learned trial judge, after granting the plaintiff an opportunity to submit an additional amendment on the final hearing, ultimately reached the conclusion that, under the terms of the previous order, it had come too late. There have been intimations made by this court which might be taken as tending to such a conclusion. The case of Marbut v. Southern Ry. Co., 22 Ga. App. 330 (95 S. E. 1021), is especially relied upon by the defendant in error. It seems, however, that in that case no amendment whatever was filed within the time allowed, relative to the ground of demurrer upon which the case was finally dismissed; and, therefore, the case is essentially different from the instant one, where the plaintiff, by timely amendment, did in fact undertake to remedy the very defect which ultimately occasioned the final order of dismissal. In the Marbut ease the first time the plaintiff ever in any way sought to conform to the terms of the order under the original demurrer, in so far as the controlling defect was concerned, was after the time allowed for doing so had expired. In the case of Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241), it does not appear that the plaintiff ever at any time offered any additional amendment to meet the defect which the first timely amendment undertook but failed to cure. The intimation which might follow from the statement in Baker v. Atlanta, 22 Ga. App. 483 (96 S. E. 332), that no further amendment was offered within the time allowed, is more difficult to reconcile with the conclusion here arrived at. While the statement in the Baker case is quoted in Thomas v. Georgia Ry. &c. Co., 23 Ga. App. 428 (98 S. E. 360), there is nothing stated in the latter ease that even intimates that a subsequent additional amendment was submitted. The same is true in Speer v. Alexander, 149 Ga. 765 (102 S. E. 150); and it will be also recalled that the original order on the demurrer in that case was dealt with as not only sustaining the demurrer and limiting the time for amendment, but as containing a provision actually dismissing the petition in prassenti, in case it should not be amended as then provided. In these respects the Speer case differs radically from the instant case, and while we have, in one paragraph of the opinion, incidentally discussed the effect of such an order, we do not think that any such question is actually involved under the record here considered.

Judgment reversed.

Stephens, J., concurs. Bell, J., disqualified.


text:
    16860.
    Wheeler v. Lovett.
    Appeal and Error, 4 O. J. p. 1047, n. 66. Sales, 35 Cyc. p. 707, n. 11.
    Decided April 20, 1926.
    Trover; from city court of Wrightsville—Judge Blount. September 5, 1925.

      J. L. Kent, for plaintiff in error. O. S. Glaxton, contra.
   Stephens, J.

1. In a suit in trover by a vendor against the purchaser, to recover the property sold, to which the vendor had retained title, the amount due upon the debt was recoverable as damages. The evidence authorized the finding for the plaintiff in this amount.

2. Where in such a case the jury found for the plaintiff in an amount representing the balance due on the purchase-money, and an additional amount as interest due to the date of the verdict, an exception in the defendant’s motion for a new trial to that portion of the charge of the court which directed the jury, in the event of recovery, to find interest, if it showed error at all, showed none where the plaintiff wrote off from the verdict the amount so found as interest.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    16874.
    Goss v. Gordon County.
    Officers, 29 Cyc. p. 1364, n. 28; p. 1365, n. 30.
    Workmen’s Compensation Acts, C. J. p. 49, n. 52.
   Jenkins, P. J.

The term “employee,” in section 2 (h) of the workmen’s compensation act (Ga. L. 1920, p. 167), which provides that “employee” shall include “every person . . in the service of another under any contract of hire,” etc., does not apply to a county policeman elected or appointed by the county, under the Civil Code (1910), § 849 et seq.; since it is not the relation of employer and employee which exists between a county and such a county policeman, but such a county policeman is a public officer. Marlow v. Mayor &c. of Savannah, 28 Ga. App. 368 (110 S. E. 923); Bunch v. Macon, 29 Ga. App. 290, 294 (115 S. E. 40). Prior to the act of 1914 (Civil Code of 1910, § 849) it was held that the appointment of such an unauthorized official did not constitute such a person an official. Herrington v. State, 103 Ga. 318 (29 S. E. 931, 68 Am. St. R. 95); Turner v. Fulton County, 109 Ga. 633 (34 S. E. 1024). While the law recognized a difference in the method of amotion of an officer where tenure is prescribed by law and where one holds merely at the pleasure of the governing authorities, in either case, where the office is expressly established or expressly authorized by law, the status of the person elected or appointed to the office legally provided for is that of a public official. See Burney v. Mayor &c. of Boston, 24 Ga. App. 7 (2) (100 S. E. 28).

Decided April 20, 1926.

Appeal; from Gordon superior court—Judge Tarver. August 26, 1925.

M. B. Eubanks, for plaintiff. J. G. B. Erwin, for defendant.

Judgment affirmed.

Stephens mid Bell, JJ., concur.


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

text:
    16878.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. CHRISTIAN.
    Workmen’s Compensation Acts, C. J. p. 12], n. 24 Now; p. ]22, n. 40.
   Jenkins, P. J.

1. “Where an application for an award of damages is made to the industrial commission of Georgia, questions not raised when the case is heard by one of the commissioners, or on appeal to the full commission, can not be raised for the first time on appeal to the superior court.” Integrity Mutual Casualty Co. v. Hankins, 33 Ga. App. 339 (126 S. E. 554). Accordingly, where the commissioner has jurisdiction of the subject-matter, and the question as to the venue in which he heard the ease is for the first time raised in the superior court, on appeal of the parties raising the question, this court will treat the question as having been waived by them, and will not pass upon it. The same rule applies as to the character of employment, where liability for the accident was admitted before the commission and the court, and the sole contention made was whether death resulted therefrom.

2. The objection that the appeal to the full commission was not taken within the time prescribed by law is not sustained by the record.

3. “ ‘Upon a review of an award made by the industrial commission under the provisions of the Georgia workmen’s compensation act, the commission’s findings of fact are, in the absence of fraud, conclusive, providing there is any evidence to support the award. Ga. L. 1920, p. 199. With respect to the sufficiency of the evidence to support it, such an award stands in this court upon the same footing as the verdict of a jury approved by the trial judge in other cases.’ ” Integrity Mutual Casualty Co. v. Hankins, supra; Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75). The evidence submitted in each of the hearings fully authorized a finding that the death of the plaintiff’s husband was occasioned by an injury arising out of and in the course of the decedent’s employment.'

Decided April 20, 1926.

Rehearing denied June 15, 1926.

Appeal; from Fulton superior court-—Judge Bell. September 29, 1925.

STATEMENT OE FACTS BY JENKINS, P. J.

Mrs. M. L. Christian filed a .claim before the industrial commission of Georgia against Puritan Chemical Company, as the employer of F. A. Christian, her deceased husband, and against the United States Fidelity and Guaranty Company, the insurance carrier, for compensation under the Georgia workmen’s compensation act, on account of the death of F. A. Christian from an alleged injury. The claim was tried first before Dr. George A. Paulk, sole commissioner, who rendered a decision adverse to the claimant on April 14, 1925. The claimant, on April 2.1, 1925, filed an application for a review before the full commission, and on July 28, 1925, the full commission rendered an award in her favor, thereby reversing the decision of the sole commissioner. On July. 31, 1925, the commission entered an order allowing to the losing parties an appeal to the superior court of Fulton county. On September 29, 1925, the award of the full commission was affirmed by the superior court. The plaintiffs in error except to this judgment.

The record of the hearing before the sole commissioner shows that Mr. George G. Eeid appeared for the insurer. In a preliminary statement before the commissioner Mr. Eeid said: “The first we knew of this accident was when Mr. Christian was sent to our office by the Puritan Chemical Company, of which we are the insurance carriers. We sent him immediately to Dr. Haines, and he was treated by Dr. Haines. We paid him compensation in the amount of $29.35, at the rate of $15 per week, as he was earning more than $30 per week. .' . The Puritan Chemical Company have a manufacturing establishment on Peters street, and they were making' alterations, and engaged several carpenters for just a day or two,—what we term ‘casual employees;’ and Mr. Christian was engaged on an hourly basis, and he worked a short while, and then the accident occurred.” By the commissioner: “You don’t admit that the accident grew out of and in the course of employment?” By Mr. Reid: “No, sir. My one contention is that it did not arise out of and in the course of employment. We admit liability for the accident, bnt deny that the death was the result of the accident; it had no connection with it. We waived that point on the temporary total.” There was ample evidence to authorize the finding that the death of plaintiff’s husband was directly occasioned by the injury. No question was made before the sole commissioner or the full commission as to the lack of jurisdiction of the sole commissioner to hear the claim in a county other than that in which the accident occurred, but it appears from the bill of exceptions that this question was raised in the superior court. No question was made before the full commission as to failure to make within seven days the application for review before the full commission, but it appears from the bill of exceptions that this question was raised in the superior court, although the copy of the appeal as embodied in the record itself indicates that the “application for review was made to the commission within” the time prescribed.

Judgment affirmed.

Stephens mid Bell, JJ., concur.

Bryan & Middlebroolcs, for plaintiffs in error.

J. I. Hynds, Hugh Howell, contra.

ON MOTION FOR REHEARING.

Jenkins, P. J.

The plaintiff in error filed a motion for rehearing in this case, contending that this court overlooked the fact that the award of the full commission, complained of by the movant, fails to make a definite finding of fact that the decedent died as a result of an accidental injury arising out of and in the course of his employment, covered by -the insurance. The award of the full commission is as follows:' “This case came before the full commission on appeal from the award of Commissioner Paulk, made on April 14, 1935. F. A. Christian, the employee, was injured on December 9, 1934, from which he was disabled for several days. The insurance carrier paid compensation in the sum of $39.35, covering the period of disability. Mr. Christian then returned to work for a short while, and died on January 14, 1935. Commissioner Paulk stated in his award that the medical testimony was very indefinite as to showing that the death was the result of the accident, and found that the death was not the result of the accident. The commission can not agree with his findings. A review of the evidence shows that F. A. Christian died from intestinal trouble, and, from the evidence in the case, there is no question in the mind of the commission but that the injury receivecl by Mr. Christian initiated and aggravated the condition that caused his death. We find that F. A. Christian died as a result of the accidental injury sustained by him on December 9, 1924. The award of Commissioner Paulk is reversed, and the full commission orders that the Puritan Chemical Company and the U. S. Fidelity & Guaranty Company pay to Mrs. M. L. Christian, widow of the deceased employee, compensation weekly at.the rate of $12.75 per week, beginning the date of the last payment of compensation made to Mr. Christian and continuing for not more than three hundred weeks from the date of the accident. The employer and insurance carrier will also pay the total reasonable medical expense incidental to Mr. Christian’s last sickness and also the funeral expenses, not to exceed $100. All the commissioners concur.” Movant cites the case of Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 S. E. 39), in which this court held as follows: “It is provided by section 57 of the act that ‘The award, together with a statement of the findings of fact and other matters pertinent to the questions at issue, shall be filed with the record of the proceedings.’ The statement of the findings of fact and the commission’s order take the respective places of the verdict and judgment rendered in an ordinary case. The order must be supported by the findings, and each, as against proper assignments, must be warranted by sufficient competent evidence. The findings of fact made by the commission within its power are, in the absence of fraud, conclusive, but, of course, the commission would have no power to make a finding of fact entirely without evidence. See section 59. A statement of the findings is necessary in order that the losing party may intelligently prepare his appeal and that the cause may thereupon be intelligently reviewed. This requirement contemplates a concise but comprehensive statement of the cause and the circumstances, or controlling facts, of the.accident as the commission shall find it in truth to have occurred.. . . It is not enough to state, merely as a conclusion, in the language of the statute, that the injury is found to have arisen out of and in the course of the employment. . . It seems, however, that if there is no sufficient statement by the commission of its findings, it is not for that reason required absolutely that the case shall be remanded for a rehearing de novo, but it may be merely recommitted, in order that the commission may state its findings upon the evideuce previously taken. . . But even this may not be necessary in a case where the facts as disclosed by the record are undisputed.' . . A repetition of the evidence heard is not a compliance with the act, because it is the duty of the commission to weigh the evidence and to declare what it finds to be the truth. Some of the witnesses might make a case demanding compensation, while the evidence of others might demand just the opposite. A.mere narrative of conflicting testimony would leave it impossible for a reviewing court to determine whether the truth of the transaction as conceived by the commission would support its decree. . . In what is considered the statement of findings and the award in the instant case is included a narration of the testimony of the various witnesses. The testimony is required to be shown in the transcript, but we do not think that the needless repetition of it in connection with the findings and the award will vitiate either, if the findings are otherwise sufficiently stated.” In the same opinion the court says: “Notwithstanding what we have said in regard to the essentials of the required statement, it must be remembered that legal precision and nicety in the report should not be insisted upon.”

As was suggested in the Edmondson case, it would not seem necessary to set forth findings upon questions of undisputed facts. It will be observed that the finding of the commission distinctly set forth that the accidental injury met with by the deceased employee was the occasion of his death. This, under the solemn admission in judicio by the movant, was the only issue involved. The record shows the statement by the movant in judicio that “we admit liability for the accident, but deny that the death was the result of the accident.” It follows from what has been said that the finding of the commission was full and complete upon the only issue of fact involved; and it can not be attacked for failing to include a finding upon a question that the movant itself concedes involved no issue of fact.

Upon the other question, which seems to some extent contemplated by the contentions set forth in the motion, to wit, “It does not appear from the record in the ease that Commissioner Paulk, the single commissioner who heard the case' and who rendered an award, had jurisdiction to render an award in said case, for the reason that it does not appear that his hearing of the ease was held in the county in which the alleged accident occurred, as provided by law,” as stated by the movant himself, the appeal to the full commission was a de novo trial; but even if it were possible, on an appeal from an award made by the full commission, to go back and test the venue of the case when previously heard by the single commissioner, which in point of fact was in his favor, we think the ruling made in the syllabus is sound, and that when the point is made for the first time, on the appeal to the superior court, it will be presumed that any question as to the venue of the trial before the single commissioner was agreed to between the parties, which section 56 of the act specifically provides may be done.

Rehearing denied.

Stephens and Bell, JJ., concur.


text:
    16928.
    Baxter v. Ballard et al.

    Justices of the Peace, 35 O. J. p. 870, n. 38; p. 872, n. 60.
    Decided April 20, 1926.
    Certiorari; from Heard superior court—Judge Roop. September 28, 1925.

      Smith & Taylor, for plaintiff. Boykin & Boykin, for defendants.
   Stephens, J.

A petition for certiorari in a case tried in a justice’s court, wliieli assigns error only upon the failure of the magistrate to enter judgment for the plaintiff against a garnishee, contains no assignment of error as against the defendant; and where the statutory bond required to be given by the plaintiff for the issuance of the writ of certiorari is payable to the defendant only, and not to the garnishee, the garnishee is not a party defendant to the certiorari. The petition for certiorari was properly dismissed.

Judgment affirmed.

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