text:
    18250.
    Millsaps v. Strange Company.
    Appeal and Error, 4 C. J. p. 650, n. 37.
    Evidence, 22 C. J. p. 491, n. 83; p. 865, n. 55; p. 887, n. 8.
    New Trial, 29 Cye. p. 788, n. 93. • •
    Trial, 38 Cyc. p. 1657, n. 47; p. 1663, n. 21 New.
   Bell, J.

1. In a suit upon an account, wliere from the testimony of the plaintiff’s bookkeeper the jury could have inferred: that he made all the entries in the plaintiff’s books and kept the books correctly; that the entries were made by him in the usual order of business, from original sales tickets delivered to him by the plaintiff’s clerks or salesmen, who made and delivered the tickets simultaneously with sales and as mere memoranda thereof; that the witness did not make the sales, and that his knowledge of the account was limited to the facts stated, but that from these facts, including the books as thus kept, the account was correct, held: The testimony of the bookkeeper was competent and admissible as proof of the account sued on, and was not subject to the objection “that it was based entirely on hearsay and on the books without showing [that the witness] made the sales- or delivered the goods charged, and without showing [that] he made the original entries.” The tickets as made by the salesmen in the regular discharge of their duties constituted a part of the res gestas of the transactions comprising the account, and were presumably correct (Shields v. Carter, 22 Ga. App. 507 (3) (96 S. E. 330); English v. Poole, 31 Ga. App. 581 (4) (121 S. E. 589) ), and the knowledge of the bookkeeper in relation to these matters was knowledge of the account. Fielder v. Collier, 13 Ga. 496 (2); Bailey v. Barnelly, 23 Ga. 582, 587; Schaefer v. Ga. R., 66 Ga. 39 (2); Swift v. Oglesby, 8 Ga. App. 540 (4) (70 S. E. 97); Hayden v. Atlanta Cotton Factory, 61 Ga. 234.

Decided January 17, 1928.

Rehearing denied February 18, 1928.

(a) In view of the time and circumstances of the making, delivery, and record of the sales tickets to which the witness testified in this case, the rule is inapplicable that the correctness of an account can not be established by testimony merely to the effect that the same is a correct copy of the account as it appears upon the books kept by the witness on information or data furnished to him by others, without other knowledge of the account on his part. See Dougan v. Dunham, 115 Ga. 1012 (42 S. E. 390); McCoy v. Meador, 140 Ga. 253 (2) (78 S. E. 848); Jenkins v. Nat. Mut. B. & L. Asso., 111 Ga. 732 (3) (36 S. E. 945); So. Home B. & D. Asso. v. Butler, 111 Ga. 826 (35 S. E. 679); Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (2) (20 S. E. 437); Ninth District A. & M. School v. Wofford Power Co., 37 Ga. App. 271 (139 S. E. 916); Scott v. Kelly-Springfield Tire Co., 33 Ga. App. 297 (9) (125 S. E. 773); Atlanta Journal Co. v. Knowles, 24 Ga. App. 745 (102 S. E. 191); Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (97 S. E. 443).

2. The court did not err in admitting the testimony of a witness that he understood that a named person was looking after the defendant’s business during a certain period. Moody v. Davis, 10 Ga. 403 (2); Foley v. Abbott, 66 Ga. 115; Neal v. Field, 68 Ga. 534; Marshall v. Pierce, 136 Ga. 543 (3) (71 S. E. 893); Mimbs v. State, 2 Ga. App. 387 (2) (58 S. E. 499); Jarriel v. Savannah Guano Co., 34 Ga. App. 72 (128 S. E. 237). Nor did the court commit other error in the admission of testimony.

3. The purpose of the suit was to recover the value of goods alleged to have been sold to the defendant’s employees by his authority. The defendant not only contended that the amount to be furnished to each employee was limited and that the plaintiff sold to several of the employees larger. bills than the defendant authorized, but his plea was such as to put the plaintiff upon proof of the entire account and of every item thereof. In view of the issues made by the pleadings and the evidence, the following charge to the jury was erroneous: “Now, in this case, if you find that [the defendant] stood for these parties or any one of them, for any sum, then of course, if you should find that to be the facts, then it would be your duty to give a verdict in favor of the plaintiff against [the defendant] for that amount.” This charge ■improperly assumed the correctness of the account sued on, and limited the defendant to the one issue of whether the amounts were authorized. Civil Code (1910), § 4863. Because of this error in the charge, the defendant was entitled to a new trial.

4. The matter upon which the defendant moved for a mistrial will not likely recur upon another trial, and it is unnecessary to determine whether a mistrial should have been ordered.

Judgment reversed.

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

Complaint; from Barrow superior court—Judge Stark. April 18, 1927.

J. C. Pratt, for plaintiff in error. G. D. Boss, contra.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17873, 17874.
    OCILLA GROCERY COMPANY v. WILCOX, IVES & COMPANY; and vice versa.

    1. The right of a creditor to subject to the process of garnishment his debt- or’s interest in a partnership is not limited to a judgment creditor only; but the debtor’s interest in the partnership assets may be reached by a garnishment issued on a suit pending against the debtor. Civil Code (1910), § 3190, construed.
    2-. In a garnishment proceeding pending in the superior court, wherein a creditor seeks to subject to the process of garnishment the alleged assets of his debtor in a partnership, the creditor, as the plaintiff, may, under the authority of §§ 5406-5413 of the Civil Code (1910), by an equitable amendment filed in aid of the suit, attack as void against creditors the transfer or assignment of the partnership assets made by the debtor during the pendency of the garnishment proceedings, and may by such amendment add as parties defendant the present defendant debtor as seller and transferor .of his partnership assets, and his transferee and subsequent transferees including the transferee or transferees in whom the title thereto is at present apparently vested.
    Garnishment, 28 C. J. p. 99, n. 27; p. 207, n. 43 New; p. 215, n. 80 New.
    Decided February 18, 1928.
    Garnishment; from Irwin superior court—Judge Eve. November 12, 1926.

      A. J. McDonald, Philip Newbern, for Ocilla Grocery Company.

      Rogers & Rogers, contra.
   Stephens, J.

This was a garnishment proceeding against the Ocilla Grocery Company, a partnership, issued upon a pending suit of Wilcox, Ives & Company against D. J. Henderson Jr. The garnishee’s answer denied indebtedness to the defendant or possession of anything belonging to him. This answer the plaintiff traversed, alleging specially that at the time of the service of summons of garnishment the defendant was a member of a partnership constituting the Ocilla Grocery Company, the garnishee, and that the defendant’s interest in this partnership was subject to garnishment. Without proceeding with the trial upon the traverse, the garnishee moved to dismiss the proceedings, upon the ground that, since the garnishment sought to subject partnership assets only, it was void by reason of its having been issued upon a pending suit and not upon a judgment already obtained, the garnishee contending that under the Civil Code (1910), § 3190, the interest of a partner in the partnership assets can be reached only 'by a creditor who obtained a judgment prior to garnishment, and that for this reason the garnishment, which was based upon a pending suit, was void. The garnishee’s motion to dismiss the garnishment was overruled, and the garnishee excepted. On the day on which the motion to dismiss the garnishment was overruled the plaintiff tendered an equitable amendment in aid of the garnishment proceedings, in which amendment it was stated that an alleged sale and transfer by the defendant Henderson of his interest in the partnership, after the service of the summons of garnishment upon the partnership, was, by reason of certain alleged acts, fraudulent and void as against creditors. The plaintiff prayed that the defendant and the defendant’s transferee, together with other parties named, be made parties defendant, and that the alleged sales and transfers be declared void, and that the interest of the defendant in the partnership assets be subjected to the process of garnishment, and for other and further relief, etc. This amendment the court disallowed, and by a cross-bill of exceptions the plaintiff excepts to the order of disallowance.

Section 3190 of the Civil Code of 1910 reads as follows: “The interest of a partner in the partnership assets may be reached by a judgment creditor by process of garnishment served on the firm, and shall not be subject to levy and sale. The lien on such interest shall attach from the date of the judgment against the partner.” This section must be construed not only in pari materia with other code sections relating to the institution of the process of garnishment (Gregory v. Clark, 73 Ga. 542, 545), but ' must also be construed with reference to pre-existing laws relative to garnishment and levying upon partnership property. The provisions of this section appear in hsee verba for the first time, in the Civil Code of 1863, § 1921. This section repealed and superseded the common-law right of a creditor to levy upon the partnership assets of his debtor. As stated by McCay, J., in Willis v. Henderson, 43 Ga. 325, “Without doubt, by the common law, it was competent to levy upon and sell the interest of a partner in any property belonging to the partnership: Shaw v. McDonald, 21 Ga. 395. The purchaser got the interest of the partner; he did not get an individual title, equal to. the partner’s share in the concern, according to the agreement, but the interest of the partner after a settlement of the concern’s affairs: 24 Ga. 625. Evidently this was a very clumsy and often, a very unjust mode of enforcing the claims of a creditor against one of the firm. The purchaser did not know what he was buying, since his interest depended altogether upon the result of a settlement of the firm affairs. Our Civil Code, § 1908 [Civil Code (1910), § 3190], prohibits the sale of effects so situated and provides that the interest of a partner in the partnership assets may be reached by the process of garnishment. And this, we think, is far better for both parties.” Referring to this code section, Trippe, J., in Holifield v. White, 52 Ga. 567 said: “It especially enacts how the interest of a partner in the partnership assets may be reached, and that it shall not be subject to levy and sale. . . Before the Code such an interest might be levied on and sold.” See also Shaw v. McDonald, 21 Ga. 395, wherein it was held that in 1856, prior to the adoption of the Code of 1863, the interest of an individual partner in a partnership was subject to levy and sale. The provisions of this code section therefore were not primarily enacted for the purpose of regulating the process of garnishment, but for the purpose of abrogating the creditor’s common-law right to subject to levy and sale his debtor’s interest in partnership assets, and limiting the creditor, who seeks to subject his debtor’s assets in a partnership to the payment of the debt, solely to process of garnishment served on the partnership.

The able counsel for the plaintiff in error stressed the fact that this code section provides that the partnership assets may by process of garnishment be reached by a “judgment creditor,” and therefore concluded that only a creditor who has obtained a judgment can institute garnishment proceedings to subject his debtor’s interest in a partnership. Since the provisions of this code section were enacted primarily to deprive a judgment creditor of the existing common-law right to levy on partnership assets and to afford him a remedy by garnishment only, the section necessarily has reference only to the rights of a judgment creditor. Since it provides only that the judgment creditor can not enforce his right against a partner by levy and sale, but is limited in so doing to the process of garnishment served upon the partnership, it does not thereby deprive a creditor, whether he is a judgment creditor or a creditor before judgment, of his rights existing under the present garnishment statutes, or under the garnishment statutes in existence prior to the adoption of the Code of 1863, to institute garnishment proceedings, whether upon a judgment or a pending suit, and to cause summons of garnishment to issue and be served upon any one as garnishee, including individuals, corporations, and partnerships. Since the passage of the garnishment act of December 23, 1822, up to the present time (Cobb’s Digest, p. 77; Civil Code of 1910, §§ 5265, 5266, 5269), garnishments may be issued upon pending suits and summons of garnishments be served upon any “person” who is supposed to be indebted to, or who has in his possession property or effects belonging to, the defendant. A partnership is but an association of persons, and has always been amenable to suit at common law. Chambers v. Sloan, 19 Ga. 84; Drucker v. Wellhouse, 82 Ga. 129 (8 S. E. 40, 2 L. R. A. 328); Civil Code (1910), § 3167, which is a codification of an act of the year 1840. The institution of garnishment proceedings and the service of summons based thereon is but a suit, and a partnership ínay be a garnishee. Blakeney v. Franklin, 26 Ga. App. 305 (105 S. E. 872).

We conclude that under the present law partnership assets belonging to a defendant may be reached by process of garnishment based upon a pending suit. Of course no funds subject to garnishment, whether partnership assets or otherwise, can be reached by levy and sale except under a judgment against the garnishee which can be obtained only after the creditor has become a “judgment creditor” by the reduction to judgment of his claim against his debtor. The court properly overruled the garnishee’s motion to dismiss the garnishment proceedings.

2. Since the issue raised by the garnishee’s answer and the plaintiff’s traverse thereto is whether the assignment by the defendant Henderson of his interest in the partnership was a fraud as against creditors, and since, as was held in Knight v. Herring, 161 Ga. 58 (129 S. E. 526), this issue can not be determined, even as between the plaintiff and the garnishee, unless the assignee holding title to the plaintiff’s interest under the assignment has been made a party to a proceeding attacking the validity of the assignment, and since, even in a suit at law pending in the superior court, equitable relief to either party may be afforded by an equitable amendment making additional parties, if necessary, after proper notice, as provided in the Civil Code (1910), §§ 5406-13, the plaintiff was entitled, by the amendment offered, which contained sufficient allegations of fraud, to have the defendant and his transferee and the latter’s transferee, who had by transfer acquired the defendant’s interest in the partnership, made parties defendant, after due and legal notice. The trial judge therefore erred in refusing to allow the plaintiff’s amendment which sought to make the defendant, D. J. Henderson Jr., his alleged transferee, D. R. Henderson, and the latter’s transferees, Mts. S. K. Dill and Mr. S. K. Dill, parties defendant.

Judgment affirmed on the main hill of exceptions, and reversed on the cross-hill.

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


text:
    17942, 17943.
    Pitner v. Southern Railway Co. (two eases).
    Appeal and Error, 4 O. J. p. 1069, n. 23.
    Carriers, 10 C.'J. p. 1094, n. 21; p. 1161, n. 2; p. 1165, n. 21; p. 1167, n. 25.,
    Trial, 38 Cye. p. 1598, n. 26; p. 1696, n. 65.
   Stephens, J.

L Upon the trial of a suit of a husband and wife against a railroad company, to recover damages for alleged injuries to the wife from the slipping of her foot upon the steps of a coach of the defendant’s train while she as a passenger was boarding it, where there was evidence to authorize the inference that the step of the coach was wet, and that this condition was unknown to her, although she boarded the train in the daytime, the evidence was sufficient to authorize an inference that by the exercise of ordinary care she could have observed the wet condition of the steps, and by the exercise of ordinary care could have avoided the slipping of her foot; and the evidence further authorizes the inference that by the exercise of ordinary care she could have avoided the injuries; and a charge of the court that if by the exercise of ordinary care she could have avoided the consequences to herself of the defendant’s negligence, neither she nor the husband could recover, and a further charge that if it should appear from the evidence that she was injured as a result of her own negligence or by a failure on her part to exercise ordinary care for her own safety, neither she nor the husband could recover, were each adjusted to the issues in the case made by both the pleadings and the evidence.

2. A charge that if the plaintiff wife, by the exercise of ordinary care could have avoided the consequences to herself of the defendant’s negligence, the plaintiffs can not recover, states a correct proposition of law, and is not error because not qualified by an instruction that the duty resting upon a plaintiff to exercise ordinary care to avoid the consequences of a defendant’s negligence does not arise until such negligence is apparent to the plaintiff or by the exercise of ordinary care by the plaintiff could have became known. A failure on the part of the trial judge to give in charge this last proposition of law, in the absence of a special request therefor, is not error.

Decided February 18, 1928.

Action for damages; from Whitfield superior court—Judge Tarver. January 1, 1927.

William E. & Gordon Ma/nn, for plaintiffs.

Maddox, Maddox & Mitchell, for defendant.

3. In the trial of such a suit against a railroad company an instruction by the court to the jury that it is incumbent upon the plaintiffs, before they can recover, to show by a preponderance of the evidence that the wife was injured in the operation of the train of the defendant, and that should this be made to appear, the burden would then rest upon the defendant to show that it and its employees exercised extraordinary care and diligence in the particulars wherein negligence is alleged in the petition, and that if the defendant failed to carry that burden, the plaintiffs would be entitled to recover, is not subject to the objection that it places upon the plaintiffs the burden of proving the defendant’s negligence by a preponderance of the evidence.

4. The charge of the court clearly instructed the jury that upon proof of injury to the plaintiff wife in the operation of the defendant’s train, the burden would rest upon the defendant to show that it exercised due care and diligence as respects the matters alleged as negligence in the plaintiffs’ petitions; and the charge is nowhere subject to the objection that it instructed the jury that after proof of injury to the plaintiff wife by the operation of the defendant’s train, the burden would rest upon the plaintiffs to prove that the defendant was negligent.

5. The charge of the court, fairly to the plaintiffs, submitted all issues raised by the pleadings and the evidence, and is not subject to the objection that it expressed an opinion that the alleged injury to the plaintiff wife was caused by her own negligence.

6. The grounds of the motion for a new trial relative to newly discovered evidence are not argued or insisted upon by counsel for the plaintiffs, and therefore are treated as abandoned.

7. The verdicts found for the defendant in both eases were authorized by the evidence, and no error of law appears.

Judgments in both cases affirmed.

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


text:
    18051.
    Selph v. Central of Georgia Railway Co.
    Pleading, 31 Cyc. p. 65, n. 42 New; p. 280, n. 5.
    Decided February 18, 1928.
    Action for damages; from Bibb superior court—Judge Malcolm D. Jones. March 11, 1927.

      B. 1). Feagin, J\ F. Urquhari, for plaintiff.
    Harris, Harris & Popper, for defendant.
   Stephens, J.

In a petition in a suit by a servant against the master, to recover damages for injuries alleged to have been received as a result of the plaintiff’s assisting in the lifting of a heavy object, to wit a tramcar loaded with Hues, and placing it upon a track, in compliance with an order of the defendant, through its servant, where it is alleged that the tram-car was of such excessive weight that it was beyond the strength of the plaintiff and his assistants to lift it with safety to him, that this excessive weight was known to the master and was unknown to the plaintiff, that the appearance of the tram-car was “deceptive as to its excessive weight,” and that it did not “appear to weigh as much as it did, and this excessive weight and the consequent danger attendant upon petitioner and his helpers undertaking to lift it and put it back on the track was known to the defendant and was unknown to the petitioner,” and where there are no other allegations descriptive of the character of the tram-car, as to its appearance and weight, the allegations as to excessive weight are mere conclusions, and the petition is subject to special demurrer upon the ground that it nowhere contains any allegations of facts respecting the alleged deceptive condition of the tram-car as to weight from which the above conclusions could be drawn. The special demurrer having been sustained, and the plaintiff not having supplied by amendment the necessary allegations as to facts, after having been afforded an opportunity to amend, the action was properly dismissed on demurrer.

Judgment affvrmed.

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


author: Bell, J.

text:
    18061.
    Lacy v. Georgia Railway & Power Co.
    Street Railroads, 36 Oye. p. 1487, n. 70.
   Bell, J.

In this suit against a street-railway company to recover damages-for injuries alleged to have been sustained by the plaintiff as a result of the defendant’s negligence, the petition alleged, and from the evidence at the trial the jury could have inferred, that the plaintiff, intending to become a passenger upon the defendant’s street-ear, which was approaching several hundred feet away, stepped upon the track in front of it, at a point within 35 feet of an established ear-stop and between the stop-sign and the approaching car, and signaled to the motorman his desire to board it; that on observing that his signals were not heeded and while there was yet time for hi-m to clear the track in safety, he undertook to do so, when, for some reason, he stumbled and fell, and that while in this position and before he was able to extricate himself the ear ran over his limbs and feet, seriously injuring him; and that the defendant’s motorman, after discovering- the plaintiff’s perilous position, failed to exercise ordinary diligence to avoid the casualty, and thus caused the injuries which the plaintiff sustained. It is contended by the defendant that the occurrence was not upon a public street, and that the plaintiff was a trespasser. Held: Even assuming that the plaintiff was a trespasser, since the jury could have concluded that the defendant’s motorman failed to exercise ordinary care for the plaintiff’s protection after his peril had become apparent, a verdict for the‘plaintiff would have been authorized and the court erred in dismissing the petition on the ground that, under the pleadings and the evidence, there could be no recovery against the defendant. Burden v. McMillan, 35 Ga. App. 639 (134 S. E. 189).

Decided February 18, 1928.

Action- for damages; from Fulton superior court—Judge Howard. January 11, 1921.

Q. B. Moore, Baad Sims, for plaintiff.

Colquitt & Conyers, Sidney Smith, for defendant.

Judgment reversed.

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


text:
    18064.
    McElmurray v. Marshall.
    Covenants, 15 C. J. p. 1287, n. 84; p. 1304, n. 2.
    Decided February 18, 1928.
   Stephens, J.

1. Where the warrantee of a title to land has not yielded to a title paramount and is not in a situation requiring him to presently yield to such a title as a matter of legal duty, no breach of warranty is established. Clements v. Collins, 59 Ga. 124; White v. Stewart, 131 Ga. 460 (62 S. E. 590, 15 Ann. Cas. 1198); Burns v. Vereen, 132 Ga. 349 (64 S. E. 113); Joyner v. Smith, 132 Ga. 779 (65 S. E. 68).

2. In a suit for a breach of warranty of title to land, where the only allegation in the petition as to the existence of an outstanding title paramount and its effect upon the plaintiff’s possession of the land is that “there were heirs outstanding of former predecessors in said title who had a share, claim, and interest in said land and were asserting their right and ownership to the same,” it does not appear that the outstanding heirs had any valid title, or, if they had any title, that it had been established or had been asserted in such a manner as to force the plaintiff to yield possession of the land as a matter of legal duty.

3. The petition failed to set out a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

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

Action for breach of contract; from Houston superior court— Judge Malcolm D. Jones. February 21, 1927.

B. D. Feagin, for plaintiff. Duncan & Nunn, for defendant.


text:
    18073.
    Goldberg v. Hammond et al.

    Pleading, 31 Cyc. p. 83, n. 16; p. 85, n. 41 New; p. 214, n. 39 New.
    Decided February 18, 1928.
   Stephens, J.

1. The legal effect of a plea must be determined from a consideration of the plea in its entirety. Although the defendant’s plea may recite that he admits a prima facie case for the plaintiff and assumes the burden of proof, yet where the defendant in the plea does not otherwise admit all the essential allegations of the plaintiff’s petition, but does expressly deny one of the essential allegations, the plea, notwithstanding the allegation therein that a prima facie case is admitted, will not be construed as a plea in effect admitting a prima facie case, but will be construed as a plea wherein there is a failure to admit a prima facie case and which denies a certain material allegation in the plaintiff’s petition. In this ease it was therefore error to strike the portion of the plea denying the material allegation in the plaintiff’s petition, upon the ground that the plea admitted a prima facie case and that the stricken allegation did not allege matters in avoidance.

2. Where the plaintiffs seek to recover for services alleged to have been performed by them under a contract with the defendant, a plea filed by the defendant which recites in one paragraph that “this defendant admits entering into the contract and agreement therein referred to, admits a prima facie case in favor of the plaintiffs, admits the burden of proof in said case, but further affirmatively shows,” and then in subsequent paragraphs alleges facts showing that the plaintiffs failed to perform the services alleged to have been contracted for, the plea is not one in effect admitting a prima facie ease, but is a plea admitting the execution of the contract sued upon and denying .the performance thereof by the plaintiffs.

3. Although the defendant may have illegally claimed the opening and the conclusion in the argument, upon the ground that his plea admitted a prima facie case and therefore entitled him to this right, and had in fact been allowed the opening argument, he nevertheless had the right to stand on his plea in its entirety as originally filed, which in effect did not admit a prima facie case, but set out a defense.

4. The court erred in striking that part of the defendant’s plea denying the performance of the contract sued on; and the subsequent proceedings disallowing the amendments offered by him and directing a verdict for the plaintiffs were nugatory.

5. The plaintiff’s petition as amended set out a cause, of action and was not subject to the demurrers interposed.

Judgment reversed.

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

Complaint; from city court of Biehmond county—Judge Black. February 24, 1927.

Paul T. Chance, for plaintiff in error.

Callaway & Howard, Hammond & Kennedy, contra.


text:
    18156.
    Blumberg v. Banks & Son et al.

    Certiorari, 11 C. J. p. 204, n. 71.
    Process, 32 Cyc. p. 526, n. 45 New.
    Decided February 18, 1928.
    Certiorari; from Fulton superior court—Judge Moore. April 4, 1927.

      M. Herzberg, for plaintiff in error. Walter B. Brown, contra.
   Stephens, J.

1. Upon the trial of a traverse to an officer’s return of service, an issue of fact is presented where the defendant testifies unequivocally that service was never perfected upon him, and the officer himself testifies that he is positive that the defendant is the person that he served. The officer’s testimony is sufficient to authorize the inference that such person was served by him, although the officer previously testified upon the same hearing and before refreshing his memory by going to the defendant’s place of business and there observing the 'defendant, that he could not swear that he had perfected service upon the defendant. It is a question of fact as to the truth of the officer’s testimony.

2. The judgment finding against the traverse to the officer’s return was authorized by the evidence, and the judge of .the superior court did not err in dismissing the certiorari.

Judgment affirmed.

Jenkins, P. J., amd Bell, J., concur.


author: •Stephens, J.

text:
    18160.
    Crider v. Southern Railway Company.
    Parties, 30 Cyc. p. 34, n. 3.
    Railroads, 33 Cyc. p. 1352, n. 94; p. 1353, n. 1.
   •Stephens, J.

1. One in possessidn of land and with an equitable interest , therein as owner, subject to his deed to secure a debt, has such an interest in the property that he can maintain an action for damage thereto. Especially is this true where the holder of the legal title, after the institution of the suit, reconveys the legal title to the plaintiff. Fulton County v. Amorous, 89 Ga. 614 (3) (16 S. E. 201); Towaliga Falls Power Co. v. Washington, 136 Ga. 397 (71 S. E. 731); City of Atlanta v. Callaway, 137 Ga. 495 (73 S. E. 736); Mack v. Augusta Belt Line Railway Co., 28 Ga. App. 816 (113 S. E. 66); Fender v. Lee County, 31 Ga. App. 604 (121 S. E. 843).

Decided February 18, 1928.

Action for damages; from city court of Decatur—Judge Guess. April 8, 1937.

John 0. Owen, Scott & Hornbuckle, 0. C. Hancock, J. W. Bow-den, for plaintiff.

McDaniel & Neely, for defendant.

2. This being a suit wherein the plaintiff seeks to recover damages for the destruction of a barn upon her premises by lire which it is alleged was negligently caused by the emission of sparks from a railway train of the defendant, and it appearing from the petition that at the time of the injury complained of the plaintiff was in possession as the owner of the equitable title in the premises, subject to a deed conveying the title to a third person to secure a debt, and it appearing from an amendment to the petition that the holder of the legal title, after the institution of the suit, reeonveyed the title to the plaintiff, and the allegations in the petition otherwise setting out facts from which it could be inferred that the injury complained of was caused by negligent acts of the defendant, the petition as amended, in both counts, set out a cause of action, and the court erred in sustaining the general demurrers to both counts of the petition.

Judgment reversed,.

Jenhvns, 1‘. J., wnd Bell, J., concur.


text:
    18164.
    CRATON v. BROCK CANDY COMPANY.
    Upon a written promise, continuing and unrevoked, to be responsible for a credit of $500 to be extended to another, the promisor was liable for a now debt of that amount incurred by the debtor to the promisee after paying in full his indebtedness previously created as a result of credit extended by the promisee on the faith of the same promise.
    Guaranty, 28 C. J. p. 961, n. 31.
    Principal and Surety, 32 Cyc. p. 75, n. 33.
    Decided February 18, 1928.
    Action on guaranty; from city court of Floyd county—Judge Bale. March 7, 1937.

      For ter & M ebane, for plaintiff in error. Graham Wright, contra.
   Stephens, J.

1. Brock Candy Company sued Craton upon his promise in writing, which reads as follows: “I will be responsible for W. S. Austin up to $500.00, but not over that amount. I would be glad if you would extend to him that amount of credit.” Construing the promise either as one of suretyship or as a guaranty, it continued until revoked; and although the principal, Austin, paid to the plaintiff his entire indebtedness in an amount in excess of $500, which was created as a result of credit extended to him by the plaintiff upon the faith of the defendant’s promise, the defendant is nevertheless liable to the extent of $500 under his continuing promise, unrevoked, for a new and additional indebtedness afterwards created by Austin to the plaintiff. See the ruling in this case on demurrer to the petition, Brock Candy Co. v. Craton, 33 Ga. App. 690 (127 S. E. 619). Under the undisputed evidence the court properly directed a verdict for the plaintiff in the sum of $500.

Judgment affirmed.

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


text:
    18167.
    BALTIMORE AND OHIO RAILROAD COMPANY v. JOHNSON-BATTLE LUMBER COMPANY.
    A person who lias obtained a diversion of a shipment. of goods during transportation by a carrier is not liable for a resulting additional freight charge, where, in ordering the diversion, he was acting as agent for another, and the carrier must have known of this fact.
    Agency, 2 O. J. p. 923, n. 13.
    Carriers, 10 C. J. p. 82, n. 91; p. 446, n. 33; p. 447, n. 42 New.
    Decided February 18, 1928.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. April 15, 1927.
    Baltimore & Ohio Railroad Company sued Johnson-Battle Lumber Company for a balance of freight alleged to be due on a shipment of lumber which originated at Dublin, Georgia, and which,' after certain diversions, was delivered at Langdon, D. 0. The trial upon an agreed statement of facts before the judge without a jury resulted in favor of the defendant, the plaintiff’s motion for a new trial was overruled, and the movant excepted. The agreed statement was as follows: “On June 15, 1923, Grogg Lumber Company, of Dublin, Georgia, shipped from Dublin over the Wrightsville and Tennille Railroad to Bethesda, Missouri [said by counsel for the plaintiff to have been intended to read “Bethesda, Maryland”], a car of lumber, described as dressed pine, in car C. B. & Q. No. 97568, prepaying the freight thereon in the amount of $225.30, which was the correct charge therefor. Thereafter, on June 31, 1933, said shipment was diverted to Johnson-Battle Lumber Company at Cape Charles, Virginia, by Grogg Lumber Company, said Johnson-Battle Lumber Company agreeing to act as agent for Grogg Lumber Company in the sale of the lumber on commission. Thereafter, on July 3, 1933, Johnson-Battle Lumber Company reconsigned said car of lumber to J. L. Knopp, at Lang-don, D. C., the said J. L. Knopp having bought said ear of lumber, and the carrier duly delivered said car to the said Knopp. The said Knopp did not pay any additional freight on said car. The principal amount of freight due on said shipment is $167.90. Section 7 of the original bill of lading in said shipment provides, inter alia: ‘The owner or consignee shall pay the freight and overage, if any, and all other lawful charges accruing on said property; but except in those'instances where it may be lawfully authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by this bill of lading until all tariff rates and charges have been paid. The consignor shall be liable for the freight and all other charges, except that if the consignor stipulates, by signature in the space provided for that purpose on the face of the bill of lading, that the carrier shall not make delivery without requesting payment of such charges, and the carrier, contrary to said stipulations, shall make delivery without requiring such payment, the consignor shall not be liable for such charges/ ”

      Waldo DeLoache, Otey B. Mitchell> for plaintiff.

      P. Q. Bryatn, for defendant.
   Bell, J.

(After stating the foregoing facts.) Counsel on each side have submitted a number of authorities as supporting their respective contentions. No case has been brought to our attention, however, which seems to be directly in point, and we will decide the case before us upon its own particular facts, in the light of what we deem to be general and unquestioned principles of law.

The right to divert a shipment of goods which are being transported by a common carrier is in the true owner, whether he be the consignor or the consignee, and the right may bé exercised although the goods have passed into the hands of a connecting carrier. While it is true that in the absence of knowledge, either actual or constructive, to the contrary, the consignee may be presumed to be -the owner, the ownership may be in the consignor, and where this fact appears he is the proper person to direct the shipment. Saunders v. Payne, 29 Ga. App. 615 (5) (116 S. E. 349); 10 C. J. 82. The facts of this case show tbat G-rogg Lumber Company, the consignor, was the owner and was treated as such by the carrier; otherwise it would not have diverted the shipment in the first instance from the original destination and consignee on the order of that company. If the right to divert the shipment was not in the Bethesda Lumber Company, the original consignee, presumably it was not in Johnson-Battle Lumber Company' after the diversion by the shipper to that company. Title to property in a person, once proved or admitted, is presumed to continue until the contrary appears. Haas v. Godby, 33 Ga. App. 218 (125 S. E. 897). If the title did not pass from the consignor to the consignee at the origin of the shipment, presumptively it was not conveyed to a third person to whom the shipment was diverted, merely in virtue of -such diversion. Then, so far as appeared, Johnson-Battle Lumber Company occupied the same status as did Bethesda Lumber Company, having no right within itself to divert the shipment. It was neither a nominal consignor nor a nominal consignee, and the carrier would not have diverted the shipment on the order of a stranger. While the record discloses that this company, in making the second diversion, was acting as agent for the consignor, it is contended by counsel for the plaintiff in error that knowledge of this fact was not brought home to the carrier. Where the agency is known and credit is not expressly given to the agent, he is hot personally liable on the contract (Civil Code (1910), § 3611). But where a person would relieve himself from personal liability on the ground of such agency, he ordinarily has the burden of proving the fact of agency as well as knowledge thereof by the opposite party. Citizens Nat. Bank v. Jennings, 35 Ga. App. 553 (134 S. E. 114); 2 C. J. 923.

Did the defendant, Johnson-Battle Lumber Company, carry the burden of proving these facts in the present case? The fact of the agency is conceded. The question is, did the carrier have knowledge of it at the time it diverted the shipment on the defendant’s order? While there was no direct evidence upon the point, circumstantial evidence will do, if it is sufficient for the purpose. From what we have said, the carrier must have known from all the circumstances that the defendant had no authority in its own right to divert the shipment; and since the carrier presumably would not have listened to a stranger, it must either have known of the agency already or have ascertained the fact by inquiry. Wente v. Chicago &c. R. Co., 79 Neb. 179 (115 N. W. 859, 15 L. R. A. (N. S.) 756), and cases cited in note. If the defendant, in ordering further shipment, acted only as agent for the consignor, and if the carrier must have known that it so acted, the defendant is not liable for the additional freight charge, although it did not in terms notify the carrier of its agency. Dart v. Ensign, 47 N. Y. 619 Great Lakes Coal Co. v. Seither Co., 220 Fed. 28; B. & M. R. Co. v. Whitcher, 83 Mass. 497. It is our opinion that under the circumstances disclosed in the agreed statement, the trial judge, sitting without a jury, was authorized to find not only that the defendant was acting as the agent of the consignor in making the second diversion, but also that the carrier must have known of this fact. We therefore can not disturb the judgment. There may or may not be other theories upon which the judgment should be affirmed; but if we are right in the conclusion stated, as we' think we are, it is unnecessary to go further.

Cited by counsel for plaintiff in error: C. C. C. & St. L. Ry. Co. v. So. Coal Co., 147 Tenn. 433 (248 S. W. 297); Portland Mills Co. v. British &c. Ins. Co., 130 Fed. 860 (65 C. C. A. 344); N. Y. &c. R. Co. v. York, 215 Mass. 36 (102 N. E. 366); B. & O. R. Co. v. New Albany Box Co., 48 Ind. App. 647 (94 N. E. 906); Seaboard Air-Line Ry. Co. v. Montgomery, 28 Ga. App. 639 (112 S. E. 652); N. Y. C. R. Co. v. Platt Coal Co., 236 Ill. App. 150; Pere Marquette R. Co. v. Am. Coal Co., 239 Ill. App. 139; Case v. Union Pac. R. Co., 119 Kan. 706 (241 Pac. 693); W. & A. R. Co. v. Underwood (D. C.), 281 Fed. 891; 10 C. J. 445, 447, § 701.

Cited by counsel for defendant in error: Davis v. City Fuel Co., 157 Ark. 455 (248 S. W. 572); St. L. Ry. Co. v. Browne Grain Co. (Tex. Civ. App.), 166 S. W. 40; Wallingford v. Bush, 255 Fed. 949 (167 C. C. A. 241); 10 C. J. 446;-2 Hutch. Carriers, § 807-8; 4 Elliott, Railroads, § 1559.

Judgment affirmed.

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


text:
    18170.
    Savannah Electric & Power Co. v. Hines.
    Appeal and Error, 4 O. J. p. 650,/;n. 37; p. 1024, n. 55.
    Damages, 17 O. J. p. 1066, n. 17.
    Pleading, 31 Oye. p. 198, n. 87.
    Trial, 38 Cyc. p. 1611, n. 5 New.
    Decided February 18, 1928.
    Damages; from Chatham superior court—Judge Meldrim. April 16, 1927.
   Stephens, J.

1. This being a suit to recover for damage to the plaintiff’s automobile, alleged to have been caused by a collision between it and the defendant’s street-ear, although the verdict found for the plaintiff was less than the sum representing the cost of repairs placed upon the automobile after the collision, and was within the legal measure of damages represented by the difference between the value of the automobile before and after it was damaged (Douglas v. Prescott, 31 Ga. App. 684, 121 S. E. 689; O’Donnelly v. Stapler, 34 Ga. App. 637 (5), 131 S. E. 91), since there was submitted to the jury as a contention of the plaintiff the right of the plaintiff to recover as an item of damage a sum representing the lost services of the automobile during the period of its being repaired, it can not be held that there was not incorporated in the verdict a sum representing this element of damage. Although there may have been no evidence introduced from which the jury could infer the amount of damage to the plaintiff by reason of the plaintiff’s being deprived of the use of the automobile for any period of time as a result of the accident, the jury might, since the plaintiff’s right to recover for this element of damage was submitted in the charge, have made an estimate thereof and incorporated it in the verdict found for the plaintiff. A charge of the court submitting this contention of the plaintiff to the jury was not authorized by the evidence and was therefore prejudicial to the defendant. The submission of this contention necessitates the grant of a new trial.

2. In such a suit, where the defendant files a denial of an entire paragraph in the plaintiff’s petition, the denial operates to deny all the allegations in the paragraph, and, in so far as they are allegations essential to the plaintiff’s right to recover, the plaintiff is put on proof thereof. Although certain of the allegations thus denied, such as the topography and plan of the city streets surrounding the place of the accident, the fact of the accident, and other allegations in the petition, may have been conclusively established by the evidence, the defendant can not complain that the court, in submitting the defendant’s contentions to the jury, narrated all the allegations thus denied by the defendant’s answer, and stated that each and every one of such allegations in the plaintiff’s petition was denied by the defendant, and that the court, in so doing, unduly stressed the defendant’s contention and held the defendant up to the jury as having made a frivolous defense on admitted facts.

3. It appearing that the other transactions alleged as error are not likely to occur upon another trial, it is not necessary to pass upon the remaining assignments of error.

Judgment reversed,.

Jenlcins, P. J., cmd Bell, J., concur.

Lawrence & Abrahams, for plaintiff in error.

Oliver & Oliver, John Z. Byan, contra.


text:
    18196.
    Douse v. Griffin.
    Appeal and Error, 3 C. J. p. 1391, n. 11; 4 O. J. p. 650, n. 37; p. 1138, n. 63.
    Landlord and Tenant, 35 C. J. p.' 1194, n. 54 New.
    New Trial, 29 Cyc. p. 761, n. 5.
   Stephens, J.

1. A ruling upon the sufficiency of pleadings can not be excepted to in a motion for a new-trial. Therefore the ground of the defendant’s motion for a new trial wherein the sustaining of a demurrer to his plea of res judicata is excepted to presents no assignment of error that this court can consider.

2. Where a tenant of farm lands, who is under .contract to pay an annual rental in money, breaches the contract during the term by abandoning the crop which he has planted on the lands and moves away, the landlord, after re-entering upon the' premises and cultivating the crop to maturity, can not, without the tenant’s consent, cultivate the crop for and in behalf of the tenant and charge against the tenant the expenses incident to the landlord’s working the crop and bringing it to maturity after its abandonment by the tenant.

3. In this suit by a landlord against the tenant to recover for advances made by the landlord to the tenant, including the expenses incurred by the landlord in bringing the crop to maturity after crediting the tenant with the value of the matured crop,'which was less than the alleged expenses of the landlord, it not appearing, from the evidence, that the tenant consented to such arrangement, the evidence is insufficient to authorize a recovery for the landlord for the alleged items of expense incurred in cultivating the crop to maturity; and the court erred in instructing the jury that the plaintiff could recover for such expenses. The judgment overruling the defendant’s motion for a-new trial will be reversed. The landlord, however, is entitled to recover from the tenant for advances made to the tenant prior to the tenant’s breach of the contract and abandonment of the crop, which, as appears from the evidence, was after June 2, 1925.

4. Since the evidence authorized a finding for the latter items in the sum sued for, viz. $649.13, the judgment overruling the defendant’s motion for a new trial will be affirmed, should the plaintiff, before the judgment of this court is made the judgment of the tridl court, write from the verdict the excess over this amount; otherwise the judgment will be reversed.

5. Since the other assignments of error of which this court has jurisdiction , relate solely to the conduct of the trial as respects the plaintiff’s right ■ to recover for expenses incurred by him in cultivating the crop after it was abandoned by the defendant, it is, under the above rulings, unnecessary to pass upon them.

Decided February 18, 1928.

Complaint; from city court of Richmond county—Judge Black. April 29, 1927.

B. B. McGowen, for plaintiff in error.

Hammond. & Kennedy, contra.

6. It is directed that the costs be taxed against the defendant in error.

Judgment affirmed, on condition.

Jenhi/ns, P. J., and Bell, J., concur.-


text:
    18212.
    Landers v. Adcock et al.

    Appeal and Error, 4 C. J. p. 834, n. 60.
    Decided February 18, 1928.
    Complaint; from Walton superior court—Judge Fortson. April 16, 1927.

      H. G. Cox, for plaintiffs in error. W. 0. Bean, contra.
   Stephens, J.

This being a suit wherein the plaintiffs sought to recover the alleged contract price of farm products bought of them by the defendant and also for cotton produced by them as croppers upon the' defendant’s lands, which it is alleged he sold for their benefit, and wherein the defendant denied the correctness of their claim'and also pleaded a set-off for the value of certain advances alleged to have been made by him to the plaintiffs, the correctness of which set-off the plaintiffs denied, and where there appeared other items in dispute, and the evidence, which was conflicting, authorizing the verdict in the amount found for the plaintiffs, the judgment overruling the defendant’s motion for a new trial, which was based only upon the general grounds, must be affirmed.

Judgment affirmed.

Jenlcims, P. J., and Bell, J., concur.


text:
    18239.
    Byrd v. Byrd.
    • Appeal and Error, 3 O. J. p. 978, n. 37; 4 O. J. p. 955, n. 35.
    Executions, 23 O. J. p. 550, n. 14 New; p. 552, n. 65 New; p. 553, n. 75 New.
   Stephens, J.

1. Where property is levied on as the property of the defendant in execution, and the entry of levy so recites, it is presumably the property of the defendant in execution, and an affidavit of illegality filed by the defendant in execution need not allege that the property is the property of the affiant. See in this connection Walker v. Equitable Mortgage Co., 112 Ga. 645 (37 S. E. 862).

2. This being an issue formed upon the hearing of an affidavit of illegality based upon the ground that the affiant was, at the time of the alleged service upon him by the leaving' of copies at his most notorious place of abode in the county, a nonresident of the county, and the court having instructed the jury as to the law relative to the determination of the domicile of a person who resides within the State, and where the court also submitted to the jury the issue as to whether or not the defendant was a resident of this State or of a foreign State, and instructed the jury that the law with reference to the domicile of one residing within the State would not apply if the jury found that the defendant resided without the State, there is no merit in the defendant’s contention that the court erred in that he excluded from the jury any consideration as to the domicile of the defendant as a resident of this State.

Decided February 18, 1928.

Action on foreign judgment; from city court of Savannah-Judge Freeman. May 13, 1927.

Don H. Gla/rk, for plaintiff.

3. Upon the trial of an issue formed by an affidavit of illegality to an execution based on a judgment in a common-law suit, the merits of the controversy arising out of the suit in which the judgment issued are irrelevant. Where the affidavit is to an execution based upon a judgment for alimony, and the sole ground of illegality is want of service of the original suit upon the affiant, who is the defendant in execution, the testimony of either the plaintiff in execution or of the affiant on erossexiunination. as to facts which tend to place culpability upon the affiant as to the issue in the main suit, as that the affiant drove the plaintiff, who was his wife, away from his home, threatened to kill her, and also, by requesting her to return to him, had admitted his fault, was irrelevant for any purpose and was properly excluded.

4. If previous conduct of the affiant tending to show that he had fled from the jurisdiction of the court for the purpose of avoiding payment of alimony could be relevant upon the issue of want of service of the suit for alimony, raised in the affidavit of illegality, it does not appear from the grounds of the motion for a new trial, as approved by the trial judge, wherein the plaintiff excepts to the refusal of the trial judge to permit her to testify, that the movant stated to the court what she expected to prove by the witness. This ground of the motion presents nothing for consideration.

5. None of the evidence offered by the plaintiff, the rejection of which was excepted to by the plaintiff, was relevant to the issue on trial. The court properly rejected it.

G. A threat made by the trial judge, while.the plaintiff was upon the witness stand giving testimony, that if the plaintiff or the attorney for the plaintiff would not observe the instructions of the trial judge with reference to answering and propounding questions, the plaintiff or “somebody is going to jail,” can not, without more, under the circumstances, be held by this court to have been so prejudicial to the plaintiff as to require a new trial.

7. The court did not err in refusing to strike the affidavit of illegality. The evidence authorized the verdict found for the* defendant, and no error appears.

Judgment affirmed.

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


author: Stephens, 0.

text:
    18260.
    Driver et al. v. Hammond.
    Appeal and Error, 4 O. J. p. 1215, n. 91.
    Evidence, 22 O. J. p. 125, n. 60.
    Landlord and Tenant, 35 C. J. p. 1212, n. 3; p. 1214, n. 54.
    New Trial, 29 Cyc. p. 821, n. 36.
    Trespass, 38 Cyc. p. 1016, n. 59.
    Decided February 18, 1928.
    Damages; from Haralson superior court—Judge Irwin. December 31, 1926.

      J. 8. Sdivards, for plaintiffs in error.

      Griffith & Matthews, contra.
   Stephens, 0.

1. In the absence of proof to the contrary, a purchaser of land under a bond for title is presumably in possession. Since a tenant claims no title in the land, his possession is necessarily that of the true owner, and since the tenant of the vendor becomes the tenant of the purchaser upon the latter’s taking possession, the possession of the tenant is necessarily the possession of a purchaser who takes possession under a bond for title.

2. This being a suit to recover damages for an alleged trespass upon land, to wit the removal by the defendants of manure from the premises, and it appearing, under the above rulings applied to the undisputed facts in evidence, that at the time of the alleged trespass, which was committed while the land was occupied by tenants who had entered under the vendor, the plaintiff, as the purchaser under a bond for title, was in possession of the land, she was entitled to maintain the suit.

3. The law of this case having been otherwise settled in Hammond v. Driver, 30 Ga. App. 216 (117 S. E. 264), the trial judge did not err, as against the defendants, in directing the jury to find for the plaintiff' in whatever amount, it appeared from the evidence, represented the plaintiff’s damage.

4. The evidence authorized the verdict in the amount found for the plaintiff, and the court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    18274.
    Atlantic Coast Line Railroad Company v. Solomon, administratrix.
    Appeal and Error, 4 C. J. p. 650, n. 37.
    Death, 17 C. J. p. 1318, n. 11; p. 1326, n. 3; p. 1352, n. 25 New.
    Master and Servant, 39 C. J. p. 822, n. 84; p. 823, n. 89, 90, 91; p. 1198, n. 40; p. 1247, n. 75; p. 1249, n. 92.
   Jenkins, P. J.

1. It can not held as a matter of law that the plaintiff would not be entitled to recover under the allegations of the petition and the proof submitted in its support. Sherrod v. A., B. & A. Ry. Co., 27 Ga. App. 510 (108 S. E. 908).

2. Contrary to the Georgia rule, under the Federal employer’s liability aet a plaintiff in a homicide ease is entitled to recover only such damages as would represent the pecuniary value, capable of a monetary measurement, of the contributions which the decedent would probably have made for the benefit of the plaintiff beneficiary had he not been killed. W. & A. Railroad v. Townsend, 36 Ga. App. 70 (135 S. E. 439). Accordingly, in a suit under the Federal employer’s liability act, where the plaintiff made proof as to the earning capacity and expectancy of the decedent, but made no proof as to his contributions to the plaintiff beneficiary, and where the judge charged the Georgia rule as to the measure of damages, under which the plaintiff would be entitled to recover the full value of the life of the decedent, a new trial is necessitated, since it was incumbent upon the plaintiff to establish the amount of probable contributions by the decedent to the plaintiff for which the defendant could be liable; and it can not be said, in the absence of any such proof, that the jury, under a correct instruction as to the measure of damages, would have awarded the amorrnt named in the verdict. See, in this connection, Tallulah Falls Ry. Co. v. Davis, 26 Ga. App. 215 (105 S. E. 712).

3. The court in effect charged the jury that a failure on the part of the decedent to exercise ordinary care for his own protection would not prevent a recovery, but would merely go to a diminution of damages under the comparative-negligence rule, and refused to charge the converse proposition as requested by the defendant. Reid: The rule in this respect under the Federal employer’s liability act differs from the rule embodied in the State employer’s liability act. Sherrod v. A., B. & A. Ry. Co., supra. The Federal employer’s liability act does not contain the provision embodied in the State statute to the effect that no recovery shall be had “if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care.” Civil Code (1910), § 2782. Under the Federal employer’s liability act, “where it appears that the negligence of the defendant and that of the plaintiff concurred in producing the injury, the negligence of both parties is to be deemed the proximate cause of the injury.” L. & N. R. Co. v. Paschal, 145 Ga. 521 (1) (89 S. E. 620). Accordingly, unless the negligence of the plaintiff should be taken as constituting the sole proximate cause of the injury, a recovery of proportionate damages is not precluded by reason of the fact that his negligence might equal or exceed that of the defendant, and even though his negligence contributing to the injury might amount to a lack of ordinary care. Watson v. Ga. So. & Fla. Ry. Co., 36 Ga. App. 452 (136 S. E. 921). “Under the Federal act, if the carrier is negligent in any degree and such negligence contributes as a proximate cause to the injury, plaintiff’s right to recover can not be defeated although his negligence might have been gross and the negligence of the defendant comparable therewith slight. And a demurrer to the evidence or a nonsuit can not in any ease under the Federal act be given or sustained on the ground of plaintiff’s contributory negligence. Judge Knappen, speaking for the Federal circuit court of appeals in Pennsylvania Co. v. Cole, . . [131 C. C. A. 248, 214 Fed. 948] said: ‘But the employer’s liability act expressly abrogates the common-law rule under which action was barred by the negligence of the plaintiff proximately contributing to the accident, and substitutes therefor the rule of comparative negligence. Under this act, no degree of negligence on the part of the plaintiff, however gross or proximate, can, as a matter of law, bar recovery.’ ” Roberts, Federal Liability of Carriers, 1039, § 582. Consequently, the court did not err in giving the charge excepted to, or in failing to charge as requested. In the instant case there was no evidence that the plaintiff’s intestate could have known of the defendant’s negligence until after his injury. Accordingly, whatever might be the rule under the Federal employer’s liability act as to the principle of law concerning the failure of the deceased to exercise ordinary care to avoid the consequences of a defendant’s negligence after such negligence was or should have been discovered, this principle could have no sort of application here, either under the doctrine of assumption of risk or otherwise, and for this reason the failure of the judge to charge such principle, inapplicable under the facts, could not in any event have been erroneous. See Southern Railway Co. v. Wessinger, 32 Ga. App. 551, 561 (124 S. E. 100).

Decided February 18, 1928.

Damages; from Chatham superior court—Judge Meldrim. April 25, 1927.

Application for certiorari was made to the Supreme Court.

Lawrence & Abrahams, F. B. Youngblood, for plaintiff in error.

Shelby Myrick, contra.

4. Since the remaining exceptions to the charge relate to matters such as are not likely to occur upon a retrial of the case, it is deemed unnecessary to deal with them.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17932.
    Gilreath, for use, etc., v. Farmers Mutual Insurance Association.
    Courts, 15 C. J. p. 807, n. 47.
    Fire Insurance, 26 C. J. p. 168, n. 50; p. 296, n. 90; p. 319, n. 48; p. 551, n. 87, p. 558, n. 31.
    New Trial, 29 Cyc. p. 761, n. 5.
    Pleading, 31 Cyc. p. 737, n. 1. Sunday, 37 Cyc. p. 573, n. 77.
   Stephens, J.

1. Notice of any fact respecting the condition of property insured against fire, to the agent of the fire-insurance company who receives an application for insurance upon which a policy is afterwards issued, is notice to the insurance company. Mechanics & Traders Insurance Co. v. Mutual Real Estate & Building Association, 98 Ga. 262 (25 S. E. 457); Johnson v. Ætna Insurance Company, 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92).

2. Where an applicant for the issuance of a policy of fire insurance upon a dwelling house, when making the application, states to the insurance company’s agent authorized to receive the application, that the applicant expects to move into the house and to bring therein his household goods, which are already insured against fire by another insurance company, and where the application is afterwards accepted by the insurance company, and the premium received and the policy of fire insurance issued upon the dwelling house, the policy is issued with knowledge on the part of the insurance company that the applicant intends to place within the dwelling household goods insured in another company. The issuance' of the policy upon the dwelling house, under the circumstances, amounts to a waiver by the insurance company of a provision in the policy to the effect that the policy would be void if the contents of the building were insured in another company without the insurer’s consent.

3. In the policy sued or., there being no provision avoiding the policy upon the ground that title to the property insured was, at the time of the issuance of the policy, not in the insured, and there being no evidence that the insured, either in the application or otherwise, falsely informed the company that title to the property was in him, there is no evidence whatsoever to support the defendant’s plea that the policy was void because at the time of its issuance the title to the property was, without the company’s knowledge, in another person, who held title as security for a debt of the insured.

4. Neither the defendant’s plea that the policy sued on was void by reason of its having been executed on Sunday, nor the plea that the insured was barred of a recovery by reason of having by his own act set fire to the building insured, was established, as a matter of law, by undisputed testimony.

5. Although it may appear from an amendment to the petition that the plaintiff, who has by the amendment been substituted for the original plaintiff as one suing for the use of the original plaintiff, is not legally entitled to maintain the suit, yet where the plaintiff’s right to maintain the suit has not been challenged either by demurrer or objection to the amendment, and where evidence in support of the right of the usee only to recover, and not in support of the plaintiff’s legal right to recover, has been admitted without objection from the defendant, the defendant will be considered as having waived the legal disability of the plaintiff to recover, and the directed verdict for the defendant will not be sustained upon the ground that it appears from the evidence that the plaintiff has no legal right to recover. See, in this connection, Strouse, 116 Ga. 872 (7) (43 S. E. 280); Foster v. Phinizy, 121 Ga. 673, 678 (49 S. E. 865).

6. This being a suit originally filed by the insured named in a policy of fire insurance to recover against the insurer, on the policy, for the loss by fire of a dwelling house covered by the policy, and where the petition was amended by striking the name of the insured as the plaintiff and substituting therefor the name of a person alleged as holding legal title to the property as security for a debt, but who it does not appear had any interest whatsoever in the policy, the evidence adduced was, under the foregoing rulings, sufficient to authorize a verdict for the plaintiff suing for the use of the insured, and since the direction of a verdict for the defendant is excepted to only by a motion for a new trial, which can not call into question the sufficiency of the plaintiff’s petition, the court erred in overruling the plaintiff’s motion for a new trial. See, in this connection, Kelly v. Strouse, supra (5), (10); Phillips v. Southern Railway Co., 112 Ga. 197 (37 S. E. 418).

Decided February 20, 1928.

Complaint on fire insurance policy; from Walker superior court —Judge Maddox. November 9, 1926.

David F. Pope, Norman ShailucJc, for plaintiff.

Rosser & Shaw, for defendant.

Judgment reversed.

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


text:
    18076.
    Parlier v. Parlier.
    Landlord and Tenant, 35 C. J. p. 969, n. 56; p. 970, n. 68; 36 O. J. p. 664, n. 20.
   Stephens, J.

1. This being a proceeding by a son against his father, to dispossess the latter as a tenant holding over beyond his term, and it appearing from the plaintiff’s own testimony, even when construed most strongly against him, that he bought the property from a third person while it was occupied by the defendant, that it was agreed between him and the defendant that the defendant was to live upon the^ property indefinitely and for the remainder of the defendant’s life, and that the defendant was to pay him rent for the premises until the plaintiff finished the payment of the purchase-money, and that the defendant was to perform other services, such as obtaining tenants for the plaintiff upon the premises and keeping up the premises, the inference is authorized that the relationship of landlord and tenant existed between the plaintiff and the defendant.

2. In such a proceeding, where there is evidence for the plaintiff authorizing the inference that the relationship of landlord and tenant existed, a statement made by the defendant, to the effect that he was in possession of the premises as the owner of a life estate, is not sufficient to establish as a matter of law and as an undisputed fact that the defendant occupied the premises under a bona fide claim of title. The evidence of the plaintiff was sufficient to authorize a jury to infer that the defendant’s occupancy was not bona fide under a claim of title, but was as a tenant.

3. Under the above rulings the evidence was sufficient to authorize the inference that the defendant held the premises as a tenant; and since it further appears from the evidence that the defendant failed to pay the rent or to perform the other services which the plaintiff testified the defendant had contracted to do, and that the tenancy was terminated after legal notice and demand upon the defendant, and that the defendant, upon demand for possession, refused to vacate, the evidence authorized a verdict for the plaintiff, and the court erred in granting a nonsuit. Judgment reversed.

Decided February 20, 1928.

Eviction; from Eloyd superior court—Judge Maddox. January 15, 1927.

Porter & Mebane, for plaintiff.

Willingham, Wright & Covington, Nathan Harris, for defendant.

Jenkins, P. J., and Bell, J., eoncwr.


text:
    18152.
    Woodland Hills Company v. Lawton.
    Appeal and Error, 4 C. J. p. 650, n. 38.
    Courts, 15 C. J. p. 987, n. 61.
    Judgments, 34 C. J. p. 895, n. 40.
    Pleading, 31 Cye. p. 362, n. 39 New.
    Vendor and .Purchaser, 29 Cyc. p. 1957, n. 17; p. 1972, n. 23.
   Stephens, J.

1. Where a contract for the sale of land provides that, upon default of the purchaser in the payment of any sum due as purchase-money under the contract, the seller may at his option terminate the contract and re-enter and take possession of the premises, the taking possession of the land by the seller by placing a third person thereon as a tenant, after a default by the purchaser in the payment of an amount due on the purchase-money, is sufficient to authorize, if not demand, the inference that the seller had exercised the option given him under the contract to terminate it upon failure of the purchaser to promptly perform his obligation to pay the purchase-money.

2. This being a suit by the seller against the purchaser to recover the unpaid balance contracted to be paid upon the purchase-money, the evidence authorized the inference that the plaintiff had rescinded the contract, and retaken possession of the premises, and had released the-purchaser from further obligation under the contract. The verdict found for the defendant was therefore authorized.

3. The plea alleging the exercise by the plaintiff of the option given him under the contract, to cancel and terminate the contract upon the failure of the defendant to comply with the obligations as to payment, contains a sufficiently definite allegation as to the time of the exercise of the option by the plaintiff when it alleges that the plaintiff exercised this option and that the date of such exercise is unknown to the defendant. It was not error to overrule a demurrer to the plea upon the ground that the date of the exercise of the option was not alleged. This is true although the allegation was made by way of amendment after a special demurrer to the original plea had been sustained with leave to amend, upon the ground that the date of the exercise of the option was not alleged. The sufficiency of a plea as amended may, both as respects general and special demurrers thereto, be determined upon the merits alone and without reference to any previous order, with leave to amend, sustaining a demurrer to the plea before amendment. The former orders, being conditional, are not res judicata, and the judgments thereon may be changed and modified by the final order upon the plea as finally amended. Folsom v. Howell, 94 Ga. 112 (21 S. E. 136).

Decided February 20, 1928.

Rehearing denied March 3, 1928.

Certiorari; from Fulton superior court—Judge Moore. April 26, 1927.

Noah J. Stone, for plaintiff.

Sutherland & Tuttle, for defendant.

4. An amendment offered by the defendant which strikes the plea in its entirety and substitutes therefor new paragraphs containing allegations which amplify those in the original plea, w'hich is stricken, is not subject to the objection that by virtue of the striking of the original plea there is nothing to amend by. The striking of the original plea and the substituting of the new matter therefor being simultaneous acts, it can not be said that the defendant’s entire defense was stricken, and that therefore there was in fact no plea in existence when the amendment containing the new matter was offered.

5. Since the case was tried by the court without a jury, and the judgment finding for the defendant was expressly predicated upon the plea alleging a rescission and termination of the contract by 'the exercise of the plaintiff of the option to terminate the contract upon default by the defendant, the rulings upon the plaintiff’s demurrers to other and independent defenses set up by the defendant are immaterial.

6. The verdict for the defendant, which was found by a judge of the municipal court of Atlanta sitting without a jury, was authorized, and no error was committed by the trial judge in passing upon the demurrers. The plaintiff’s motion for a new trial was properly overruled, and the judgment of the appellate division of the municipal court of Atlanta, affirming the verdict and judgment for the defendant, was correct.

7. Section 42 of the act of 1925, regulating practice in the municipal court of Atlanta (see Ga. L. 1925, p. 370, 383), which provides that in all cases tried in the municipal court of Atlanta by a judge without a jury a judgment shall be rendered and publicly announced in open court, is not applicable to judgments rendered in the appellate division of that court. An assignment of error in a petition for certiorari that the judgment rendered by the appellate division of the municipal court of Atlanta was error, as being in violation of the provisions of the above-cited section 42 of the act of 1925, in that the rendition of the judgment was not publicly announced, but that notice of its rendition was given to counsel by mail only, is without merit.

8. The judge of the superior court properly dismissed the certiorari.

Judgment affirmed.

Jenlcvns, P. J., and Bell, J., concur.


text:
    18194.
    GARY v. CENTRAL OF GEORGIA RAILWAY CO.
    1. Where a contract of employment stipulated that the employee would not be dismissed from the service without a fair and impartial trial had in a manner and before persons stated, after notice of the charges for investigation and opportunity to have certain representatives to discuss the points at issue, the employer would have no right to discharge the employee until he had been afforded the trial thus provided for, involving the issue as to the employer’s right to discharge him upon some particular ground. In the meantime, if the relation has not been otherwise terminated, his dismissal by his employer would constitute a breach of the contract, for which he could sue immediately for any special injury resulting therefrom.
    2. Where the contract further provided that within a certain time after such trial the employee might appeal, if dissatisfied with the result thereof, but contained no provision as to supersedeas if a trial were actually had in accordance with the agreement and concluded adversely to the employee, the employer’s right then to discharge the employee would not be in abeyance pending the disposition of an appeal nor during the period for the entry of the same.
    3. In this suit by an engineman, as employee, against a railroad company as employer, for a breach of the contract of employment by discharging him contrary to the terms of the agreement, the damages claimed because of the plaintiff’s loss of his right of seniority and because of his having been blacklisted or boycotted by other railroad companies were too remote and speculative to -constitute proper elements of recovery.
    4. Nor was the plaintiff entitled to be compensated for the alleged loss of his right in a certain group policy of insurance which appeared to have been issued subsequently to the making of the contract of employment and which was in no wise provided for nor referred to therein.
    5. Where an employee is wrongfully discharged before the end of his term and elects to sue for a breach of the contract, he may do so immediately and claim any special injury which he may have sustained in consequence of such breach. In such a case the measure of damage is the actual loss from the breach of the contract in view of the salary or wages which he was earning, and in estimating the amount all facts down to the time of the trial may be considered. The petition, as against a general demurrer, contained a sufficient allegation of damages under this principle. The court erred in dismissing the petition on general demurrer and in sustaining one ground of the special demurrer, but correctly sustained all other grounds of the special demurrer.
    Master and Servant, 39 C. J. p. 91, n. 10; p. 109, n. 41; p. 112, n. 69 New; p. 115, n. 5.
    Decided February 20, 1928.
    Action for damages; from Richmond superior court—Judge A. L. Franklin. April 25, 1927.

    J. M. Gary brought an action against Central of Georgia Railway Company for damages for an alleged breach of a contract of employment. Thé court sustained general and special demurrers to the petition, and the plaintiff excepted. The petition alleged, among others, the following facts: From October, 1909, until August 8, 1924, the plaintiff was employed by the defendant, first as a fireman and then as a locomotive engineer, on a line of the defendant’s railroad. The plaintiff entered the defendant’s service under a contract made with the plaintiff through the Brotherhood of Locomotive Engineers, of which the plaintiff was a member and continued to be a member in good standing. The contract was of force at the time of the plaintiff’s alleged wrongful discharge, and embodied article 31 of the rules of the brotherhood, which provided as follows: “(a) No engineman shall be demerited, suspended, or discharged from the service of the company without a fair and impartial trial, investigation to take place before the Train Master -and Master Mechanic, or their representatives. He will be notified of charges for investigation and be allowed to be present and hear evidence. If he desires he may have two enginemen with him, and, after evidence is taken, such representatives will have the right to discuss the points in the case with the officials. If exonerated, he will be paid for the lost time. In case of discipline, he will be notified in writing within ten days after the investigation. Unless complied with, there will be no entries made. Enginemen will not be held off runs for minor violations, provided investigation can be held within ten days. Enginemen will be notified promptly by letter or otherwise when they have committed a violation of rules.

      “(b) Discipline will be applied within thirty days after date of notice. No complaints or appeal will be entertained unless presented in writing to the Superintendent within 30 days after its occurrence. Enginemen shall have the right to appeal, provided such appeal is made in writing within 30 days after the Superintendent has rendered his decision.
    “(c) Upon request the engineman who has been disciplined will be furnished a copy of his own statement pertaining to such investigation.

      “(cl) Except in cases of extreme emergency, enginemen will not be called to attend investigations immediately after having been on duty for a period or trip until they have had the amount of rest required by the sixteen-hour law.

      “(e) Division officers will furnish General Chairmen with copy of investigation where discipline is applied when requested.”
    On August 8, 1924, the plaintiff received the following letter dismissing him from the defendant’s service:
    “Savannah, Ga., August 8'th, 1924.
    “Mr. J. M. Gary, engineer, Augusta, Ga.
    “Dear Sir: Deferring to the investigation held at Augusta at 4:30 p. m., August 6th. Your record was charged with ten demerits for 'delaying train No. 47 at Millen and for refusing to give the operator at Millen and the dispatchers necessary information for the proper handling of your train, and for blocking second No. 37 at Millen unnecessarily. These ten demerits added against your record gives you ninety (90) demerits, which automatically relieves you permanently from the service. Send to this office your rule-book and your switch-key, and any other property that you may have belonging to the company. You may retain your annual pass for the purpose of coming to Savannah to cheek up your time, in order that you may be paid the balance due you by the company. On your arrival at Savannah please turn in your annual pass to this office, and a trip pass will be given you to return to Augusta. I am sending .this letter to you in care of General Yardmaster Ellis.
    “Yours truly,
    “W. H. Wright, Superintendent.”
    The petition further alleged: The act of the defendant in thus dismissing the plaintiff was premature and illegal, because, under the terms of the contract, the plaintiff was allowed 30 days within which to appeal from the result of the investigation or trial of August 6, and, having entered such appeal, he could not be rightfully discharged until it was disposed of. It is apparent from the letter of August 8 that the plaintiff was discharged merely because of an accumulation of demerits. Plaintiff did not have the number of demerits mentioned, but, in any event, the defendant could not discharge him upon such ground, because the contract provided no “automatic” scale of demerits for which the plaintiff could be dismissed without a fair and impartial trial as provided in the contract. The petition further sets forth what the plaintiff claims to be the truth in reference to the various demerits charged against him, the purpose being to show that they were unjustified and illegal, and therefore constituted no reason for his discharge, even if, under the terms of the contract, an accumulation of 90 demerits would of itself afford ground therefor. The plaintiff was never given a trial or investigation, as provided in Article 31, on the question of whether he should be discharged, and his dismissal from the defendant’s service was therefore wrongful and amounted to a breach of the contract.
    The plaintiff claimed damages in several distinct items, as follows: (1) $15,000 for the loss of his right of seniority as an engineer. (2) $3,300 per year during the plaintiff’s life expectancy of 24% years, as a result of his having been blacklisted and boycotted by other railroads, and of his having been thus deprived of the earnings which he would otherwise have made as an engineer at a salary of at least $275 per month, the amount he was receiving from the defendant at the time of his discharge. (3) $6,000 as the value of a group policy of insurance covering the plaintiff’s life and disability, which policy was issued in virtue of the plaintiff’s employment and to which he was a party. This policy appears to have been issued some time after the making of the contract of employment and is in no wise referred to therein. (4) $6,260 as the amount the plaintiff would have earned from the date of his discharge to the filing of the present suit, at the salary of $275 per month, which he was receiving under the terms of his employment.
    In the rules of the brotherhood, which were included in the contract between the parties, and a copy of which was attached to the petition, was the following statement, found in Article 29: “ (/) Letters from the management in regard to compensation and working conditions will remain in effect.”
    The several grounds of the defendant’s demurrers, so far as specific reference to them may be necessary, will be stated in the opinion.

      W. B. Lanier, W. K. Miller, for plaintiff.

      W. Inman Gurry, for defendant.
   Bell, J.

(After stating the foregoing facts.) If the contract of employment had contained no provision as to when or how it might be terminated, the defendant might have discharged the plaintiff at will; but since, under specific stipulations, the relation could be severed only in a particular way or on the happening of a certain event, the act of the defendant in dismissing the plaintiff without a compliance with these conditions would constitute a breach of the contract. According to the terms of the agreement, the plaintiff could not he demerited, suspended, or discharged from the service of the company without a fair and impartial trial, had in a manner and before persons stated, after notice of the charges for investigation and opportunity to have two enginemen as his representatives to discuss the points at issue. The plaintiff, in his petition, denies that these conditions were complied with. We think that the letter of August 8, 1924, discloses that the trial of August 6, 1924, was in reference only to demerits, and it is our opinion that the defendant could not rightfully dismiss the plaintiff from its service where the only issue for investigation related to such a matter. The clear intent and purpose of the agreement was that the plaint..!' could only be dismissed after a hearing which involved the question of the right of the defendant to dismiss him upon some ground. The contract contains no provision authorizing the dismissal of the plaintiff merely for an accumulation of demerits, in the absence of a trial upon that question. In the case of Crotty v. Erie E. Co., 149 App. Div. 262 (133 N. Y. Supp. 696), which was an action for a breach of a contract of employment, the petition contained the following allegation: “That in and by the terms of said employment-.it was provided that plaintiff, as such yardman, would not be suspended (except suspension pending investigation), discharged, or have record entered against him without a hearing and full investigation, which would be given promptly; that he might have present during such investigation any actual witnesses of the occurrence under investigation, except discharged employees, and when found blameless, would receive full pay for the time lost.” The court, in discussing the case in the light of this averment, said: “In effect, therefore, the contract provided that the term of plaintiff’s hiring should continue until he had been given a hearing and full investigation, with the right to call witnesses of the occurrence under investigation. While the subject of the hearing and investigation is not expressly stated, it must relate to some * occurrence.’ As the only ‘ occurrence ’ which could properly be the subject of an investigation respecting his continuance in service must be some alleged dereliction in duty, we think that the contract fairly implies that it shall continue until such dereliction is established.

“This view is confirmed by the provisions of the contract to the effect that, if found blameless ’ after suspension, he shall receive full pay for the time lost. He can be found culpable or blameless only with reference to his own conduct. The complaint alleges that plaintiff was not given a hearing or full investigation, and that he was not afforded the opportunity to present any witnesses in his behalf. The contract was not, therefore, legally terminated by defendant. It is true that the decision of the master after srrch hearing as to the sufficiency of the charge may be final and conclusive, in the absence of such bad faith as would constitute fraud; but, when the parties have thus agreed, the servant has a right to insist upon a full investigation, relying upon the fairness and justice of the master.” So we think in the present case that in the absence of a new agreement between the parties, or possibly an abandonment by the plaintiff, the contract would continue of force until terminated in the manner prescribed by its terms. The statement in the rules of the brotherhood, that letters from the management in regard to compensation and working conditions shall remain in effect, does not purport upon its face to provide a method for terminating the contract different from that prescribed in Article 31. “Working conditions” hardly implies conditions and terms of the contract of emplojonent. It was therefore not necessary for the plaintiff to allege what were the contents of* the letters from the management, or that he was dismissed in a manner contrary to the terms thereof. If any right to discharge the plaintiff on other conditions than-as stated in Article 31 was reserved in these letters, this would be a matter to be pleaded by the defendant. As will be shown later, the petition contained sufficient allegations as to one recoverable item of damages, and we think it was good as against a general demurrer.

The court did not err in sustaining ground 1 of the special demurrer attacking the allegation in paragraph 9 of the petition, that the plaintiff was discharged prematurely because of his alleged right to remain in the defendant’s service pending his appeal. The contract contained no provision as to supersedeas, and if the plaintiff had been given the trial as required by Article 31, and if the trial had resulted adversely to him, the defendant’s right then to discharge him would not have been in abeyance pending an appeal, nor during the period provided for such appeal. No decision in this case is necessary, and none is made, as to whether the defendant could have discharged the plaintiff after such trial, regardless of whether the result thereof was favorable or unfavorable to the plaintiff.

The damages which the plaintiff claimed because of the loss of his right of seniority, as it is set forth in this case, and because of his having been blacklisted and boycotted by other railroads, were too remote and speculative to constitute proper elements of recovery. “Remote or consequential damages aie not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” Civil Code (1910), § 4394. See also Berlin v. Cusachs, 114 La. 744 (38 So. 539); Inglesli v. Hickson Inc., 195 App. Div. 585 (2) (186 N. Y. S. 846); Mastoras v. Chic. &c. Ry. Co., 217 Fed. 153; Westwater v. Rector of Grace Church, 140 Cal. 339 (73 Pac. 1055). Accordingly, the court properly sustained grounds 3 and 4 of the special demurrer, challenging the plaintiff’s right to recover such damages.

Nor was the plaintiff entitled to be compensated for the alleged loss of his right in the group policy of insurance, assuming that the value of such right was sufficiently shown. This policy appears to have been issued subsequently to the making of the contract of employment, and is in no way-referred to therein. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach.” Civil Code (1910), § 4395. The court therefore properly sustained ground 5 of the special demurrer.

If the defendant’s dismissal of the plaintiff from its service constituted a breach of the contract, as was shown by the petition, he had the right to sue immediately for any special injury arising from its breach, and in such a case the measure of recovery is, prima facie, full pay at the contract rate; and in estimating the amount all facts down to the time of the trial may be considered. The averment that the plaintiff was deprived of his earnings from the date of his discharge on August 8, 1924, to the time of the suit, aggregating $6,260, and was thus damaged in this sum, was good as against general demurrer. The defendant did not demur specially to this claim. See Civil Code (1910), § 3588; Ansley v. Jordan, 61 Ga. 482; Roberts v. Crowley, 81 Ga. 429 (3) (7 S. E. 740); Realty Co. v. Ellis, 4 Ga. App. 402 (4) (61 S. E. 832); Ga., Fla. & Ala. Ry. Co. v. Parsons, 12 Ga. App. 180 (2) (76 S. E. 1063); Walker v. Jenkins, 32 Ga. App. 238 (123 S. E. 161), and eit.

We conclude that the court erred in sustaining the general demurrer, and also ground 2 of the special demurrer, which was a mere amplification of the general demurrer. In all other points the judgment complained of was correct.

Judgment' reversed.

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