text:
    15877
    International Clay Machinery Company v. Moultrie Banking Company.
   Stephens, J.

1. Where personal property is sold under a contract whereby the title thereto is retained and the property is subject to the seller’s order until the purchase-price has been fully paid, and the right is reserved in the seller to remove and retake the property on default as to payment of the purchase-money, and where the property is afterwards, even with the consent of the seller, installed by the purchaser in a building upon land belonging to the purchaser, in such a manner as to become attached as a part of the realty, the seller’s title retained therein is not, by reason of such annexation to the realty, lost or forfeited to a pre-existing mortgagee of the land, if the property attached has not lost its identity and can be detached from the realty without essential injury to the ^vMue of the freehold as it would have stood had the attachment not been made. This ruling is in accordance with the weight of authority prevailing in America. Wade v. Johnston, 25 Ga. 331; Campbell v. Roddy, 44 N. J. Eq. 244 (6 Am. St. R. 889) ; Holt v. Henley, 232 U. S. 637; Detroit Steel Cooperage Co. v. Sisterville Brewery Co., 233 U. S. 712; 26 C. J. 684 et seq.; 13 Am. & Eng. Enc. of Law (2d ed.) 630 et seq.; 37 L. R. A. (N. S.) 119 (note); 19 Cyc. 1051 et seq.; 13 A. L. R. 448 (note); 1 B. R. C. 664 (note). The ruling here made is distinguishable from that of the United States Circuit Court of Appeals, fifth circuit, in Schofield’s Sons Co. v. Citizens’ Bank of Moultrie, 2 Fed. (3d series) 129, which holds that in this State a contract retaining title in the seller of personalty which afterwards becomes attached to the realty does not prevail as against a pre-existing mortgagee, since the property sold became “an essential and indispensable part of the completed structure contemplated by the mortgagee.”

2. Such an agreement retaining title in the seller to personal property sold prevails as against a subsequent purchaser of the land, including a purchaser at a judicial sale, with notice of the agreement; and a failure of the purchaser to deliver the personalty to the seller on demand constitutes a conversion for which trover will lie. Constructive notice by virtue of the record of the retention-of-title contract is sufficient; but in order to constitute constructive notice to the purchaser of the realty, the personalty attached must have retained its identity and be capable of identification. 26 C. J. 681, 683, 734; 13 Am. & Eng. Enc. of Law (2d ed.) 624, 627, 630, 679; 19 Cyc. 1074; 38 Cyc. 2016; dictum in the case of Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 20 (93 S. E. 525), and citations supra.

3. In a suit in trover by the seller of the personalty, who had retained title thereto, against the pre-existing mortgagee of the land, who after-wards purchased the land at a judicial sale, with constructive notice from the record of the plaintiff’s retention of title to the personalty sold, although at the time of the purchase of the land by the defendant the personalty was attached thereto as a part of the realty, where the evidence authorized the inference that the personalty sold had not lost its identity and could be detached from the realty without injury to the remaining property, and the defendant had refused to deliver it to the plaintiff on demand, a verdict for the plaintiff would have been authorized, and the court erred in directing a verdict for the defendant.

Decided October 2, 1925.

Trover; from Colquitt superior court—Judge W. E. Thomas. October 30, 1924.

STATEMENT OE EACTS BY STEPHENS, J.

The International Clay Machinery Company sold to the Ladson Brick and Tile Company certain personalty described as “one type disintegrator as illustrated and described on bulletin No. 57” and weighing approximately 3300 pounds, and “one type 220 smooth roll crusher as illustrated and described on bulletin No. 58,” described as weighing approximately 4200 pounds, for the sum of $1100, and retained title thereto under a contract which was duly recorded on April 22, 1922. The contract provides that the articles sold “are to remain the property and subject to the order of the International Clay Machinery Company until paid for in full, and that if promissory notes are given for said sum in payment thereof or thereon, it shall not divest the said International Clay Machinery Company of the title until all such promissory notes are paid in full, nor shall any payment on account and receipt therefor divest them of such title until all sums are fully paid; and in default of payment as above agreed, you or your agent may take possession of and remove said articles without legal process.” The property thus sold was installed by the Ladson Brick and Tile Company in a brick plant upon certain land which the Ladson Brick and Tile Company at the time held under a bond for title from one W. L. Culberson, which bond for title the Ladson Brick and Tile Company had transferred to the Moultrie Banking Company by a transfer executed July 30, 1921, and admitted to record March 27, 1922.

It thus appears that, at the time of the sale of the- personalty by the International Clay Machinery Company to the Ladson Brick and Tile Company, the Moultrie Banking Company was to all intents and purposes a pre-existing mortgagee of the land upon which the personalty was installed. The Moultrie Banking Company afterwards paid the outstanding indebtedness of the Ladson Brick and Tile Company to W. L. Culberson and took a deed to the property from Culberson in consideration of $12,500, which deed was executed December 19, 1922,- and recorded January 22, 1923. The Ladson Brick and Tile Company afterwards became a bankrupt, and the Moultrie Banking Company, at a receiver’s sale, bought the property for the sum of $10,000 under a deed executed May 29, 1923, and recorded August 21, 1923.

4. It was harmless to the plaintiff to admit the evidence objected to in the amendment to the motion for a new trial, tending to establish the defendant as a pre-existing mortgagee and as a subsequent purchaser of the land.

Judgment reversed.

Jenkins, P. J., eoneurs. Bell, J., disqualified.

The International Clay Machinery Company, after having demanded the disintegrator and 'crusher of the Moultrie Banking Company, and after the latter’s refusal to deliver the same, brought trover against the Moultrie Banking Company to recover the property. The defendant denied the plaintiff’s title, contending that the personalty, after its sale to the Ladson Brick and Tile Company, had, by its installation upon the land of the Ladson Brick and Tile Company, become a part of the realty, and that the title thereto had passed to the defendant as part of the realty.

The above-described documents were admitted in evidence. The following also appears,from the evidence: W. W. Nace, a witness for the defendant, after testifying that he was “familiar with the type 220 crusher and 205 disintegrator installed as a part of the plant at this time, placed on a framework on brick machine, wooden base, bolted or nailed to the framework of the building,” testified as follows: “I think the plant can be operated if you take this machinery out. The clay goes into the disintegrator first; this forces the clay into the crusher, which sets over the brick machine. This machinery is connected with, the balance of the machinery. The brickwork sets on the foundation, and there is a framework that the pulp-mill sets on. The disintegrator is right over the pulp-machine bolted on the framework. The clay goes into the disintegrator first and then into the pulp-mill. The disintegrator is on top of the pulp-mill, bolted to it. After the clay goes from the pulp-mill into the crusher it then goes into the brick machine. The crusher sets right over the brick machine and is bolted. This machinery is an essential part of this plant. Some plants operate without this machinery. The way this plant is operated and put up, this machinery'is an essential part of this mill. The mill could be operated without the disintegrator. The taking out of the disintegrator and roll-crusher would not stop the operation of this plant, but it would not make as good brick. The building in which the machinery is situated is about fifty by seventy-five or one hundred feet square. This crusher and disintegrator is one of the main items put together by bolts and screws on framework. You could take them away without harm to the other machinery. You could take them away without harm to the building. The plant could be operated without the crusher and without the dis-integrator. In order to make brick, the clay has to be crushed up, and you can make better these machines in there. You can make some brick without any machinery at all, by hand. While you could make brick without the disintegrator or crusher the plant could not be very well operated without the pulp-mill. The pulp-mill sets right over the brick machine, and it is all connected together on framework.”

M. L. Lee, a witness for the defendant, testified: “The brick machine is fastened onto a concrete foundation. The machine that is next to the brick machine is fastened to the brick machine and the posts supporting the brick machine. Over that is the third machine, which is the other machine that is involved in this suit. All other machines are connected with the framework set into the ground. The machines sued for are bolted to the building.”

The court directed a verdict for the defendant. The plaintiff moved for a new trial, excepting to the direction of a verdict and to the admission in evidence of certain of. the above-mentioned documents tending to establish the defendant as a pre-existing mortgagee and as a subsequent purchaser of the land.

Lippitt & Burt, for plaintiff.

Kline & Moore, for defendant.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16398.
    JONES MOTOR COMPANY v. FINCH MOTOR COMPANY.
    1. Where in the trial of a claim case it appears that at the time of the levy the defendant in fi. fa. was in possession of the property levied upon, the burden is upon the claimant to show his title. Such burden having fallen upon the claimant in this case, and there being a total failure to carry it, the only legal result, under the evidence adduced, was a verdict in favor of the plaintiff in fi. fa. Such verdict, though directed, could not lawfully be set aside by the grant even of a first new trial, in the absence of some error which could have contributed to the result.
    2. In the trial of such a case, where the claimant tendered in evidence a paper purporting upon its face to be a conditional-sale contract between the claimant as seller and the defendant in fi. fa. as purchaser of the property in question, and the paper had not been properly attested for record and recorded, and the plaintiff in fi. fa. objected to its introduction in evidence, because its execution had not been proved, the objection was properly sustained. The verdict in favor of the plaintiff in fi. fa. having been demanded by the evidence and no error having been committed, the court should not have granted a new trial.
    Decided September 18, 1925.
    Levy and claim; from Monroe superior court—Judge Persons. March 14, 1925.

      Gillon & Ghurchwell, for plaintiff.

      Oliver 0. Hancock, Eugene Horne, for defendant.
   Bell, J.

This was a claim case in which the court. directed a verdict in favor of the plaintiff in fi. fa. The claimant filed a motion for a new trial, which was granted, and the plaintiff in fi. fa. excepted.

Did the court err in granting the motion ? The plaintiff in fi. fa. procured a judgment against W. J. Marshall on February 4, 1924. Pursuant thereto execution was duly issued and entered upon the general execution docket on the same date. The execution bore an entry showing that on August 6, 1924, it was levied upon a certain automobile as the property of the defendant in fi. fa., found in his possession. The fi. fa., with the entries thereon, was introduced in evidence, and the plaintiff rested. W. B. Finch, in behalf of the claimant, then testified, “I know one certain car levied upon bearing the description of that car. It is a 1920 model Buick Sedan, closed car. I have a retention-title bill of sale to this car. W. B. Finch Motor Company has a retention-title bill of sale. That is in my possession. The car described in that paper is the same car levied upon in this case. It was levied upon by the sheriff. It was one Buick Sedan 1920 model.” No other evidence having been admitted, the court directed a verdict in favor of the plaintiff in fi. fa. When it appeared that at the time of the levy the defendant in fi. fa. was in possession of the property levied upon, the burden was upon the claimant to show his title. Civil Code-(1910), § 5170; Bartlett v. Russell, 41 Ga. 196 (1); Powell v. Westmoreland, 60 Ga. 572 (1); Greene v. Mathews, 31 Ga. App. 265 (1) (120 S. E. 434). While the evidence of Mr. Pinch, in going into the contents of a written contract, was secondary, no such objection was made; and if it had made an issue, the claimant might perhaps have been entitled to have the issue submitted to the jury. “Primary proof is dispensed with when secondary evidence is admitted without objection; and the failure to object at the time the secondary evidence is offered will generally be treated as a waiver of objection.” Bugg v. State, 17 Ga. App. 211 (3) (86 S. E. 405). See also Goodwyn v. Goodwyn, 20 Ga. 600 (10); Helms v. State, 136 Ga. 799 (2) (72 S. E. 246); but see Jones v. Newberry, 16 Ga. App. 424 (85 S. E. 617). It would seem to need no argument, however, to demonstrate that the claimant did not even begin to carry the burden which devolved upon it. If the claimant had made a conditional sale in writing to the defendant in fi. fa. after the judgment, it would have been superior to the judgment, whether recorded or not. American Law Book Co. v. Brunswick Crosstie & C. Co., 12 Ga. App. 259 (77 S. E. 104). But if the conditional sale antedated the judgment, it would have been subject thereto unless it was properly recorded. Southern Iron & Equipment Co. v. Voyles, 138 Ga. 258 (4) (75 S. E. 248, 41 L. R. A. (N. S.) 375, Ann. Cas. 1913D, 36). Mr. Pinch’s testimony, in failing to show whether the conditional sale was made before or after the judgment, and whether, if before, it was duly recorded, was altogether insufficient to raise any issue for trial. Under these circumstances the court did not err in directing a verdict in favor of the plaintiff in fi. fa. Such a verdict being demanded by the evidence, it was error to grant a new trial, unless some error had been committed which could have contributed thereto. Herz v. Claflin Co., 101 Ga. 615 (5) (29 S. E. 33). It is error even to grant a first new trial where the law and the evidence demands the verdict as rendered, whether it was directed by the court or returned at the volition of a jury. Civil Code (1910), § 6204; Citizens Bank v. Rudisill, 4 Ga. App. 37 (1) (60 S. E. 818). This brings us to the question of whether any error was committed which could have contributed to the verdict.

The legality of the judgment granting the motion will depend upon the merit of a lone special ground thereof, in which it was complained that the court erred in excluding from evidence the alleged conditional sale. There was set out in this ground what purported to be a written contract evidencing the sale of the property in question by the claimant to W. H. Marshall and W. J. Marshall, in which title to the property was reserved in the seller until the payment of a certain amount as the balance of the purchase-money. The 'contract appears to have been witnessed only by one who was not authorized by law to attest it officially. A form of probate had been written but not signed. The instrument was nevertheless recorded. Its date was subsequent to the date of the judgment. The instrument having been improperly attested, its record amounted to nothing. Civil Code (1910), § 4205; Livingston v. Hudson, 85 Ga. 835 (4) (12 S. E. 17). While it is true that since it was subsequent in date to the judgment, the registration was not necessary to its priority, it is also true that in the absence of proper record it could not be admitted in evidence without proof of its execution. See Civil Code (1910), § 5828. There was no effort to prove its execution, and the assignment of error in the motion for a new trial showed that its introduction in evidence was objected to on this ground. In approving the amendment to the motion the judge certified, “Counsel for plaintiff also objected to the introduction of the contract offered, on the further ground that its execution is not proven, for the reason that, being witnessed by a common witness, G. R. Hill, its execution can be proven in only one way, and that is by the subscribing witness, G. R. Hill. Whereupon the court ruled: 'Mr. Hill never did sign that probate, though. I think the point well.taken. I don’t think the title that Mr. Einch attempted to reserve is a good reservation of title, but he invested the title in Marshall when he turned it over to him.’” The judge thereafter granted the motion, solely because, as recited in his order, he had discovered that the conditional sale was entered into after the date of the judgment and that its record was therefore not necessary to its priority. The judge’s note shows that regardless of the comment made by him at the time, he sustained the plaintiff’s objection to the introduction of the instrument until there was proof of its execution. The objection was outstanding, and the Court announced that the point was “well taken.” ’ It does not appear that the claimant’s counsel could have been in any way misled, for, Avhether the court was right or wrong in its observations, the claimant could not have had the benefit of the instrument in evidence, under the circumstances, without proving its execution; and the court properly declined to admit it in evidence. The sustaining or overruling of the ground of the motion complaining of such ruling .did not involve the exercise of discretion, since the ruling itself did not. The judge either erred or he did not err. If he properly refused to admit the evidence, no error was committed which could have contributed to the verdict, and the rule was then applicable that even a first new trial can not be granted where, under the law and the evidence, the verdict as rendered was the only lawful result. If the court, on the other hand, had erred in rejecting the evidence, the new trial was properly granted. There are instances where the judge may exercise a discretion even in sustaining or overruling a special ground of a motion for a new trial, as when exceptions are taken to some ruling which itself was discretionary. For instance, where a judge overrules a motion for a continuance, which is usually addressed to judicial discretion, he may, on exceptions thereto in a motion for a new trial, review his discretion, reverse his position, and grant the new trial on that ground. Bagley v. Shumate, 128 Ga. 78 (57 S. E. 99). But the case now under consideration presents a pure question of law as to whether the court erred in excluding the conditional sale. If he had admitted it under the circumstances, and a verdict had been rendered in favor of the claimant, he would have been bound to grant the plaintiff a new trial. A refusal to do so would have been reversible. It follows that he was right, as a matter of law, in rejecting the evidence, and had no error to correct on the hearing of the motion. The evidence as adduced having demanded the verdict, and no error of law whatever having been committed, the new trial should have been refused.

Judgment reversed.

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

OASES DECIDED IN THE COURT OF APPEALS OF GEORGIA AT THE OCTOBER TERM, 1925


author: Bloodworth, J.

text:
    16139.
    BLANCHARD et al. v. TUCKER, WILLINGHAM & CO.
    Where, under a petition which contains two separate and distinct causes of action, the evidence shows that the plaintiff is entitled to a recovery on one of them but not on the other, and under the charge of the court the jury could have based their verdict on either one or both of the causes of action, a verdict finding a gross sum for the plaintiff can not legally stand.
    Decided October 6, 1925.
    Complaint; from Muscogee superior court—Judge Munro. December 3, 1924.

      Worsley & Flournoy, Paul ■Blanchard, for plaintiffs in error.

      Arnold & Battle, contra.
   Bloodworth, J.

Plaintiffs brought suit as warehousemen for alleged negligent injury to ninety-nine bales of cotton, caused by allowing the cotton to become wet, by reason of the overflow of the Chattahoochee river, and be thereby damaged to the amount of $1886.54; and also for the loss of five bales of cotton, worth $909.48. The petition contained' one count only, and was not demurred to. The trial resulted in a verdict in favor of the plaintiffs for the lump sum of $417.89. A new trial was applied for by the defendants, and when this was overruled they brought the case to this court for review.

It'is patent that the petition contains two separate and distinct causes of action,—the one for damage to the ninety-nine bales of cotton, and the other for the five bales lost and not delivered. In the motion for a new trial it is urged that the verdict does not cover the issues made in the pleadings, in that the petition sets forth two separate and distinct torts,—one for negligence as a warehouseman in caring for cotton, and the other in trover for refusing to deliver on demand; and that the verdict, being for a lump sum, is not justified by the evidence introduced in support of either cause of action, it being uncertain upon which cause of action it was rendered, and uncertain whether it was rendered in satisfaction of the cause of action for which there was some evidence, or that one for which there was no evidence.

From the “lump sum” verdict rendered it is impossible to tell whether the jury intended to find' on one cause of action for the plaintiff and one for the defendant, or whether it intended to find in favor of the plaintiff on both. As to the five bales of cotton, the plaintiff alleged in part that they were “lost by the defendants, and have never been delivered to the petitioner, although frequent demand has been made upon defendants therefor.” By amendment it was alleged that these demands were made “on or about the 29th of December, 1919, and again on or- about the 27th day of January, 1920.” The allegation that these five bales were “lost by the defendants, and have never been delivered to the petitioner,” is not supported by the testimony. The plaintiffs directed the defendants to deliver all their cotton to the Eagle and Phoenix Mills, which was done. This being a compliance with the demand of the plaintiffs, there was no evidence to support this cause of action, and, the verdict being a general one, the judgment must be reversed. In Southern Ry. Co. v. Hardin, 107 Ga. 379, the second headnote (p. 380) (33 S. E. 436) is as follows: “When, under such a petition, the evidence shows that the plaintiff is entitled to have a recovery for one of the tortious acts alleged to have been committed, and is not entitled to recover for the other of such alleged acts, and under the charge of the court the jury could have properly based their verdict on either one or both, and a verdict finding a gross sum for the plaintiff was returned, it qan not legally stand, because of the uncertainty as to whether it was rendered in satis-: faction of the tortious act proved or that submitted which was not proved.” The principle announced covers the issue we are discussing, and is controlling. In this case the jury, under the charge, could have based their verdict on either or both of the causes of action, and a verdict finding a gross sum for the plaintiff can not legally stand. See also Seaboard Air-Line Ry. v. Smith, 3 Ga. App. 1 (2 a) (59 S. E. 199); Chase v. Knabel, 48 Wash. 484 (90 Pac. 642, 12 L. R. A. (N. S.) 1155). Moreover, that the verdict does not cover the pleadings is emphasized by the fact that when the jury called the attention of the judge specifically to one of the causes of action, and asked if they could find a verdict on a named paragraph, he replied that they could not, but that they must find a verdict for the plaintiffs or the defendants. This was error.

Judgment reversed.

Broyles, G. J., and Luke, J., concur.


text:
    16155.
    SUMMERS BUGGY COMPANY v. ESTES.
    In the charge to the jury the court erred in singling out one of the issues and giving it judicial weight by characterizing it as “the true issue in this case.”
    The charge that it was for the jury to decide “from the evidence in the case” what witnesses they would believe was objectionable because its effect was to limit the jury to the evidence alone in determining as to the credibility of witnesses, and to take from them the right to consider other matters, such as interest or lack of interest of the witnesses, their demeanor on the stand, and their opportunity of knowing the facts about which they testified.
    Because of the erroneous instructions to the jury, the judge erred in overruling the motion for a new trial.
    Decided October 6, 1925.
    Rehearing denied November 10, 1925.
    Complaint; from city court of Barnesville—Judge Redding. December 9, 1924.
    Application for certiorari was denied by the Supreme Court.

      Dobbs & Barrett, Beck & Beck, for plaintiff in error.

      Claude Christopher, contra.
   Bloodworth, J.

This case is a close one, and the charge should have been so clear and accurate as to avoid any peradventure of the jury being misled thereby.

(a) The jury were told that “The contention of the plaintiff in this case is that she had a contract,—that is, entered into a contract, with the defendant company,—a monthly contract for services to be rendered by her to the company at so much per month; that some time after she had been employed by the defendant company they increased her wages to one hundred dollars per month. Look to the evidence and see whether there was a contract, and if that was the contract between the parties. That is the true issue in this case.” This was error, because it singles out one of the issues and gives judicial weight to it by characterizing it as “the true issue in this case.” Stiles v. Shedden, 2 Ga. App. 317 (4), 321 (58 S. E. 515).

(6) The jury were instructed also that “It is the duty of the jury not to impute perjury to any witness in the case on trial, but to reconcile all the testimony, if it can be done, so as to make all the witnesses speak the truth; but if, in considering the case, the testimony can not be reconciled so as to make all the witnesses speak the truth, then it is for the jury to decide from the evidence in the case what witness or witnesses you will believe and what witness or witnesses you will not believe.” This court, in Williams v. State, 25 Ga. App. 193 (1) (102 S. E. 875), held: “It is well settled that while.it is not incumbent upon the judge, in the absence of a timely and appropriate written request, to charge upon the subject of the impeachment of witnesses, yet where that subject is referred to in the charge, all of it that is material and applicable to the facts of the case should be given. Rouse v. State, 2 Ga.. App. 184 (7) (58 S. E. 416); Harper v. State, 17 Ga. App. 561 (2) (87 S. E. 808).” Under this ruling and the facts of the case, the court erred in not giving fuller instructions upon the subject, although no request to do so was presented. This charge limited the jury to a consideration of the evidence alone in determining the credibility of the witnesses, and took from them the right to consider all other matters, such as interest or lack of interest of the witnesses, their demeanor on the stand, and their opportunity of knowing the facts about which they testified.

As, under the foregoing rulings, a new trial results, it is unnecessary to consider the other assignments of error, as none of them may recur upon another trial.

Judgment reversed.

Broyles, G. J., and LuTce, J., concur.


text:
    16159.
    GEORGIA RAILWAY & POWER COMPANY v. CLORE.
    There is sufficient evidence to support the finding of the member of the industrial commission before whom the case was heard, in denying compensation, and the judge of the superior court erred in overruling his judgment.
    Decided October 6, 1925.
    Appeal; from Whitfield superior court—Judge Tarver. December 19, 1924.

      B. K. Godfrey, Maddox, Maddox & Mitchell, for plaintiff in error.

      W. G. Martin, W. M. Sapp, contra.
   Bloodworth, J.

This case arose under the workmen’s compensation law of Georgia. The defendant in error filed a claim with the industrial commission, asserting a right to recover compensation on account of the death of her husband while he was in the employ of the Georgia Railway & Power Company. The case was tried by one of the commissioners, who denied to the applicant the right to recover. The findings of fact by the commissioner, his “decision and judgment,” were in part as follows: “At about 6:45 a. m., January 30, 1924, in the City of .Dalton, Whitfield county, Georgia, S. T. Clore, an employee of the Georgia Railway & Power Company, was killed by a passenger-train on the track of the Nashville, Chattanooga & St. Louis Railroad, a distance of about 250 yards from the substation of the employer in this case. The accident occurred about fifteen minutes before the hour of beginning work. . . As this accident was one that did not arise out of and in the course of the employment of Mr. Clore, the accident having occurred upon the right of way of the N., C. & St. L. Railway, before the premises of the employer were reached, and there being no evidence that the contract of employment was of such nature as to take care of the risk of the employee going and returning from his work, an award must be denied and the case dismissed.”

The deceased was killed on his way to work at a substation of the Georgia Railway & Power Company, and before he reached the premises of the company, and while he was walking along a route of his own selection. In order that there may be a recovery under the provisions of the workmen’s compensation act as amended (Ga. L. 1920, p. 167; Ga. L. 1922, p. 185), the injury must be one which “arises out of and in the course of employment.” In the McNicols ease, 215 Mass. 498 (1) (102 N. E. 697, L. R. A. 1916A, 306), in construing the provisions of an act similar to ours, the Supreme Court of Massachusetts said: “In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy nor necessary to the determination of the case at bar to give, a comprehensive definition of these words which shall accurately include all eases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that'an injury is received 'in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of’ the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of’ the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” At the time of the injury in the instant case the deceased was not engaged in performing any service for the 'company for which he was employed, and therefore the accident did not arise “in the course of” the employment. At the place of the injury he was exposed to no greater risk by reason of his employment than was any one of the public traveling the same route. It thus does not appear to- the rational mind, upon consideration of all the circumstances, that there is “a causal connection between the conditions under which the work is required to be performed and the resultant injury;” nor does it appear that the injury had “its origin in a risk connected with the employment and that it flowed from that source as a natural consequence.” Therefore the injury did not arise “out of” the employment. In support of the foregoing proposition see Hills v. Blair, 182 Mich. 20 (148 N. W. 243); Fumiciello’s case, 219 Mass. 488 (107 N. E. 349); DeConstantin v. Public Service Commission, 75 W. Va. 32; United Disposal Co. v. Industrial Commission, 291 Ill. 480 (126 N. E. 183). Moreover, it does not appear that the employer was apprised of the fact that the deceased was using the route over which he was traveling when killed, or that at the time the contract of employment was made with the deceased it was in contemplation of the parties that he should be compensated for an injury which might occur as did this one. As far as the record shows, the engine which struck the deceased was in no way under control of the Georgia Railway & Power Company, nor was it engaged in any work for or in behalf of this corporation.

The decision of the commissioner, denying compensation to the applicant, is supported by the evidence, and the judge of the superior court erred in overruling his judgment.

Judgment reversed.

Broyles, G. J., and Lulce, J., concur.


author: Luke, J.

text:
    16170.
    HOWARD v. MONTEZUMA FERTILIZER COMPANY.
    1. The verdict being' sustained by the evidence and approved by the trial judge, this court is bound to overrule the general grounds of the motion for new trial.
    2. The defendant’s letter to the fertilizer company, in which he promised to “take care of” the note afterwards sued on in this case, was properly admitted in evidence.
    3. The admission in evidence of the small can of fertilizer exhibited to the defendant when he was on the witness stand, and as to which he was interrogated for the purpose of testing the accuracy of his knowledge as to fertilizer, was not error.
    4. Where in ruling out evidence in the early stages of a ease the court makes remarks claimed by counsel to be highly injurious to his client’s cause, counsel can not remain quiescent until after an adverse verdict, and then, in a motion for a new trial, avail himself of the court’s remarks.

      5. There is no merit in the 5th special ground of the motion for a new trial.
    6. The excerpt from the court’s charge, referred to in the 6th special ground of the motion for a new trial, discloses no error.
    7. The use of the words “manure salts,” in the court’s charge, where “muriate of potash” should have been used, was clearly a mere inadvertence, which worked no injury to the defendant.
    Decided October 6, 1925.
    Complaint; from city court of Americus—Judge Harper. December 2, 1924.

      Wallis & Fort, for plaintiff in error,

      cTule Felton, Jule W. Felton, contra.
   Luke, J.

Montezuma Fertilizer Company sued J. W. Howard on a promissory note for $10,429.42, besides interest and attorney’s fee. Defendant admitted the execution of the note and notice of claim for attorney’s fee, and assumed the burden of proof; the substance of his plea being as follows: What defendant contracted to buy, and what was actually delivered to him, was 10 tons of acid and 172 tons of 8-4-4 fertilizer, the ingredients of the latter being acid derived from phosphate rock, nitrogen derived from nitrate of soda and cottonseed meal in the proportion of 1% from the former and 3% from the latter, and potash derived from muriate of potash. Plaintiff failed to register with the commissioner of agriculture any 8-4-4 brand of fertilizer having its nitrogen derived from cottonseed meal and its potash from muriate of potash; the 8-4-4 fertilizer actually registered under the name and brand of “8-4-4” having as its sources of nitrogen blood, tank-age, nitrate of soda, and sulphate of ammonia, and as its source of potash, manure salts. Wherefore the contract sued on was illegal and void.

Defendant adduced evidence in support of his plea. Plaintiff admitted that it registered only one brand of 8-4-4 fertilizer in 1920, but introduced evidence to. show that defendant bought 8-4-4 fertilizer without specifying from what sources its nitrogen and potash were to be derived. It also adduced evidence that the 8-4-4 fertilizer delivered to defendant was the same fertilizer registered by it under that brand with the commissioner of agriculture. The jury having resolved the conflicting evidence in favor of plaintiff, and the trial court having declined to disturb the verdict, this court is bound to hold that there was no error in overruling the general grounds of the motion for new trial.

Defendant contends that the court erred in admitting in evidence a letter written by him in October, 1922, to the president of the fertilizer company, wherein he stated that the company was good to him; that he was not able to pay the note, but would take care of it as soon as he could; that if he was pushed he would “do something” to take care of himself; and that he was not dictating, but that it would be best to let the note stand until he could get to it. Defendant contends that since it did not appear that he knew at the time the letter was written that the fertilizer sold him was not registered, the evidence was irrelevant, immaterial, and calculated to prejudice the jury against him and divert their minds from the real issues in the case. It was said in McGriff v. McGriff, 154 Ga. 567 (115 S. E. 21), that “a party may show anything which may, in the slightest degree, affect the credit of an opposing witness.” The defendant was the only witness for himself. His evidence was in sharp conflict with the testimony of witnesses for plaintiff. This letter was written at no' great time before the suit was brought. We think it was proper for it to go to the jury.

Movant contends that the court erred in admitting in evidence a small can of guano which a witness had identified as containing eight parts of acid phosphate, three parts of cottonseed meal, four parts of manure salts, and one part nitrate of soda, and which was exhibited to the defendant while on the stand, and about which he was examined for the purpose of ascertaining whether he could tell by inspection whether this mixture contained any cottonseed meal, muriate of potash, or nitrate of soda. The objection was that the evidence was irrelevant and immaterial to the issue, in that it could not illustrate whether the fertilizer delivered to defendant was registered. Defendant had sworn in effect that he could tell by inspection whether the fertilizer sold him had cottonseed meal in it, and from what source the potash was derived. The mixture was introduced to test the accuracy of defendant’s testimony, and was admissible as against the objection made.

After defendant had sworn that he had lost a tag that came off of the fertilizer delivered to him, his counsel asked him to tell the jury what was on the tag. Plaintiff’s counsel objected, upon the ground that the tag was the highest and best evidence, stating in this connection that there were 172 of these tags. The court’s ruling was: “I don’t think it would be permissible to show what was on one tag, unless it is shown that all of the tags were exactly alike.” In the motion for a new trial the defendant excepted to these remarks, upon the ground that they were calculated to impress the jury with the necessity of defendant’s showing that all the tags were similar in statement as to the sources from which the ammonia and potash were derived, before he could defeat the suit, whereas such was not the case, for the’reason that the contract declared upon was entire. Later, in answering a question propounded by his counsel, defendant swore: “I looked through it [the fertilizer] as it was loaded on the wagons, and after it got into the fields. . . I looked at the guano in every car that it came in, checked it myself. I have looked’ for those tags and have not been able to find them; just didn’t take care of them. This was the season of 1920. 8-4-4 appeared on the sacks; that didn’t appear on the tag. The analysis was on the tag,—meal and soda and potash.” The defendant, on cross-examination, swore also: “I know what was on the sack and tag, and I know that it had cottonseed meal and potash in it. .' . I have handled it for a long time. Anybody can tell when it’s got cottonseed meal in it. I can tell what kind of potash is in it.” Giving this evidence a reasonable construction, we think it was in effect the same as that ruled out, and the allowance of it in evidence should very much mitigate the alleged evil effect of the court’s remarks. Furthermore, we are of the opinion that counsel should have taken some steps to avoid the alleged hurtful effect of these remarks by requesting the court to withdraw them at once, or that a mistrial be declared, or that the jury be instructed to disregard them. The facts are not parallel in the two cases, but the principle enunciated in Moore v. McAfee, 151 Ga. 270 (11) (106 S. E. 274), is entirely applicable to this ground of the motion for a new trial. In that case it is said that “A party can not remain quiescent until after verdict and then avail himself of the remarks made by the court, in a motion for new trial, where the verdict is adverse.” The remarks in question were made in the early stages of the case. No attempt was made .to correct the injurious effects attributed to them. The court correctly overruled this ground of the motion for new trial.

During tbe final argument of counsel for defendant he had brought into court in different containers what he said was acid phosphate, cottonseed meal, nitrate of soda,.and muriate of potash, which substances had not been identified by evidence. Counsel proposed to mix them in the presence of the jury, in designated proportions, and demonstrate that the meal, as well as the other ingredients, could be ascertained by mere physical inspection. The court ruled that counsel could not illustrate the question under consideration by materials that had not been introduced in evidence and allowed. Under the circumstances set out, neither argument nor authority is necessary to demonstrate the correctness of the court’s ruling.

Ground 6 of the motion for a new trial, complaining of an excerpt from the charge of the court, is without merit. The excerpt, so far as it went, correctly stated the plaintiff’s contentions, and contained no error whatsoever.

Complaint is made in the last ground that the court erred in stating the defendant’s contention to be that he claimed that the fertilizer delivered to him derived its potash from manure salts. The fact that the court several times used the words “muriate of potash,” in this connection, demonstrates clearly that the use of the words “manure salts” was a mere inadvertence which could have worked no injury to defendant.

For no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16171.
    GRANTHAM v. ROYAL INSURANCE COMPANY LIMITED.
    1. A renewal of a retention-of-title note will not forfeit a policy of insurance which, contains a condition against incumbrances, where the renewal note is for a lesser amount, covers the same property, is signed by the same payor, and in no way increases the hazard of the insurer. This is so for the reason that if is the same hazard of which the insurer had knowledge when the insurer assented to pay the loss to the insured’s appointee.
    2. Where an agent, authorized to issue and deliver policies in behalf of an insurance company, issues and delivers a policy insuring ah automobile with knowledge that the automobile is not fully paid for, and that it was purchased under a contract retaining title in the seller until full payment of the purchase price, knowledge of the agent is knowledge of the company, and delivery of the policy with such knowledge amounts to a waiver of. a “warranty” in the policy that the automobile is fully paid for, and of the stipulation therein that the company shall not be liable if the interest of the assured in the property be other than unconditional ownership.
    3. Limitations in an insurance policy upon the authority of agents of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequently to the issuance of the policy.
    Decided October 6, 1925.
    Complaint; from Irwin superior court—Judge Eve. November 1, 1924.
    Application for certiorari was denied by the Supreme Court.
    Grantham brought suit on an insurance policy against Eoyal Insurance Company Limited, because of the loss by fire of an automobile. The evidence showed that when Grantham purchased the automobile he gave a retention-of-title note for the full amount of the purchase-price,- and that a few months thereafter he made a substantial payment on the automobile to the vendors and took up the retention-of-title note, and gave them a renewal retention-of-title note for the balance due.
    At the time the automobile was purchased and the first retention-of-title note given, the automobile dealer gave Grantham a memorandum showing car number, serial number, motor number, amount due automobile dealer, and loss clause payable to automobile dealer. This memorandum was given to Grantham for the information of the insurance agent when writing a policy on the -automobile, and within forty-five minutes thereafter Grantham handed this memorandum to the agent and requested him to issue the policy, which he did.
    Upon the trial of the ease it was shown that the contract of insurance provided that if the interest of the assured were “other than unconditional and sole ownership,” or if the assured “concealed or misrepresented” any material facts, the policy was void and the company not liable thereon; and further provided that the contract embodied all the agreements between the parties, and that no agent of the insurance company had power to waive any of the terms of the policy (unless such waiver were written, etc.). The contract as written showed also that one of the warranties made by the assured was that “the automobile described is fully paid for by the assured, aud is not mortgaged or otherwise encumbered.” The trial judge directed a verdict for the defendant, and plaintiff excepted.

      Fldridge Cutis, Jay & Garden, Quvncey & Bice, for plaintiff.

      Rogers & Rogers, King, Spalding, MacDougald & Sibley, Sibley & Sibley, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The taking up of the first retention-of-title note and the payment on the automobile and giving of the second note did not increase the hazard of the insurer, but, on the contrary, increased the interest of the insured and presumedly would make him more careful of the property insured. Both notes retained title in the dealer, covered the same property, and were signed by the same party, the assured. A renewal of a retention-of-title note will not forfeit a policy of insurance which contains a condition against incumbrances, where the renewal note is for a lesser amount, covers the same property, is signed by the same payor, and in no way increases the hazard of the insurer. “This is so for the reason that it is the same hazard of which the insurer had knowledge when it assented to pay the loss to the insured’s appointee.” See, in this connection, Hartford Fire Ins. Co. v. Liddell Co., 130 Ga. 14 (60 S. E. 107, 14 L. R. A. (N. S.) 168, 124 Am. St. Rep. 157).

The following material evidence is uncontradicted: (1) that the contract provided that if the insured’s property was incumbered or the assured made any misrepresentations, the policy was void; (2) that the contract provided that it embodied all the agreements between the parties, and that no agent of the insurance company had authority to waive any of them; (3) that the contract as written showed one of the warranties of the assured to be that the automobile was fully paid for; (4) that the automobile was not fully paid for, but that title to the same was retained by the vendors thereof; (5) that plaintiff, at the time he applied for the insurance on the automobile, delivered to the duly authorized agent of the defendant company the memorandum showing that the automobile was not fully paid for, and that the vendors of the automobile retained title thereto.

This evidence, being uncontradieted, must be accepted as true, and leaves but one question for determination: was the knowledge of the agent as to the incumbrance of the automobile knowledge of the company, and did the company, by issuing the policy in the light of this knowledge, waive the breach of the terms of the policy above named ?

The policy of our law generally is in opposition to forfeitures, and contracts “are to be so construed, if possible, as to avoid forfeitures and to advance the beneñcial purposes intended to be accomplished.” Clay v. Phœnix Ins. Co., 97 Ga. 44 (1) (25 S. E. 417); Civil Code, §§ 3717, 4568.

In Simon v. Mechanics Ins. Co., 31 Ga. App. 138 (2) (121 S. E. 343), this court held: “Where in such a case the agent authorized to issue and deliver the policy in behalf of the insurance company issues and delivers it with knowledge that the automobile is not fully paid for and was purchased under a contract retaining title in the seller until full payment of the purchase price, knowledge of the agent is knowledge of the company, and delivery of the policy with such knowledge amounts to a waiver of a ‘warranty’ in the policy that the automobile is fully paid for, and of the stipulation therein that the company shall not be liable if the interest of the assured in the property be other than unconditional ownership.” See also pages 139, 140 (2), and cases cited. But'it is insisted by the defendant in error that under the contract the agent had no authority to waive any of the terms thereof. This contention is without merit in the case under consideration, because the agent of the defendant company had notice of the incumbrance at and before the issuance of the policy, and the waiver was made upon delivery of the policy, and not subsequent thereto; and “limitations in an insurance policy upon the authority of the agent of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequently to the issuance of the policy. . . True, the policy states on its face that no agent has the power to waive* any of the conditions of the policy, and that none of them will be deemed to have been waived unless such waiver is attached to or endorsed upon the policy in writing. But this is not a question of waiver, so much as of notice and estoppel. The agent’s knowledge, as has been seen, is the company’s knowledge. In spite of the assertion in the policy that the contract shall be void if the ownership of the property is of a given character, the policy lias been issued with notice to the company that the ownership is of that character. Eegardless of any question of waiver, then, the company has placed itself in a position where it would be inequitable to allow it to make the defense which it seeks.” Johnson v. Ætna Ins. Co., 123 Ga. 404 (2), 410 (51 S. E. 339, 107 Am. St. Rep. 92). “It is well settled that where an agent who is authorized to issue and deliver policies in behalf of an insurance company issues and delivers a policy with knowledge of the true state of the title, the knowledge of the agent is knowledge of the company, and the delivery of the policy with such knowledge amounts to a waiver of conditions relating to the existing state of the title.” Mechanics & Traders Ins. Co. v. Mutual &c. Asso., 98 Ga. 266 (25 S. E. 458). In the case under consideration the assured, at the time he applied for the insurance and gave the agent notice of the retention of title, also paid the premium, and “it will be presumed conclusively, when, with knowledge that there was a mortgage upon the property, it (the insurance company) nevertheless issued the insurance and accepted the premium, that it intended to waive the condition in question, and which would have the effect, otherwise, to render the policy void” (italics ours). Clay v. Phœnix Ins. Co., supra. See also headnotes on page 44. “Stipulations and conditions in a policy of fire insurance that it shall be void, unless such and such things are true, are waived, where the company’s agent by whom the policy was delivered to the insured knew at and before the time of making the delivery all the facts to which the stipulations and conditions related, and where the company made no effort to void the policy until after notice of a loss thereunder. Mechanics & Traders Ins. Co. v. Mutual Real Estate & Building Asso., 98 Ga. 262 (1) (25 S. E. 457).” Girard Fire & Marine Ins. Co. v. Carter, 32 Ga. App. 3 (2) (122 S. E. 649). See also Athens Mutual Ins. Co. v. O’Keefe, 133 Ga. 792 (1) (66 S. E. 649).

To hold that an insurance company could collect-the premium for a policy, and then with full knowledge of the true facts embody a false warranty in the policy which would render the policy void and useless to the assured, would open the way for fraudulent transactions. Neither should an insurance company be allowed to reap a benefit from its own mistake. The real negligence in this case devolves upon the insurance' company, because of the failure of its duly authorized agent to properly issue the policy in conformity to the memorandum furnished him by the insured. Under the facts of this ease and the decisions hereinbefore referred to, the company waived the breach of the said conditions embodied in the policy, and the trial judge erred in directing a verdict for the defendant company.

“The ruling here made does not conflict with that made in the case of Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102). It was there held that notice to a person, alleged lb have been associated in some way with the local agent of the insurance company, that the insured was not the unconditional owner of the automobile insured, was not notice to the insurance company. Whereas, in the instant case, the defendant’s agent who took the application and procured and delivered the policy and received payment therefor knew, when the policy was issued and delivered, that the insured was not the unconditional owner of the automobile insured.” Simon v. Mechanics Ins. Co., 31 Ga. App. 142 (121 S. E. 344).

Judgment reversed.

Broyles, C. J., and Luke, J., concur.


text:
    16190.
    Gaskins, executor, v. Courson.
    Decided October 8, 1925.
   Bloodworth, J.

1. “Where testimony a part of which is admissible is objected to as a whole, it is not error to overrule the objection.” Eckman v. State, 23 Ga. App. 392 (98 S. E. 187), and cases cited in the opinion. This ruling disposes of the first special ground of the motion for a new trial.

2. Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete and understandable within itself, without reference to the brief of evidence or to any other part of the record. Under these decisions we are not called upon to consider the second special ground of the motion for a new trial.

3. Under the facts of this ease there was no error in the charge of the court as set out in special ground 3 of the motion for a new trial; nor was there any error in the failure of the court to charge, as complained of in ground 4.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.

4. There is some evidence to support the finding of the jury.

Complaint; from Lanier superior court—Jeff. S. Story, Judge pro hac vice. December 30, 1924.

Benjamin Smith, W. R. Smith, for plaintiff.

R. M. Penland, Dewey Knight, for defendant.


text:
    16301, 16324.
    HENSON v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al.; and vice versa.

    Where one is killed while sitting at night on a railway-track not at a crossing, and there is no allegation in the petition and nothing in the evidence to show that the railway company was guilty of “wilful and wanton” negligence, but the evidence does reveal that the deceased was negligent, and by the exercise of ordinary care could have avoided the consequences to himself of the mere negligence of the railway company, the company is not liable in damages.
    Decided October 6, 1925.
    Action for damages; from Warren superior court—Judge Perry-man. January 10, 1925.

      L. D. McGregor, for plaintiff.

      Miles W. Lewis, K. P. & J. Cecil Davis, for defendants.
   Bloodworth, J.

The evidence shows that a young man twenty years old, and “presumptively chargeable with the same standard of diligence for his own safety as an adult” (Bugg v. Knowles, 33 Ga. App. 710, 127 S. E. 814 (1); Atlantic Coast Line R. Co. v. Fulford, 33 Ga. App. 631, 127 S. E. 812), voluntarily sat down upon the rail of a railroad-track near a depot, but not at a crossing of any kind; that he was sitting with his elbows on his knees and his head resting in his hands, and was in this position as the train approached the station, and at the time the whistle sounded the station or a danger signal, and that he “never made any effort to get out of the way until the train got within the length of a rail of him.” In Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), Judge Hines, after citing a number of cases to support the propositions, lays down (p. 316) two general propositions of law. “(1) If a homicide occurs at a place upon the track of a railway company, where it was the duty of the servants of the company to anticipate the presence of persons on the track, and their failure to so anticipaté the presence of others thereon amounts to mere negligence, the negligence of the person killed, under such circumstances, amounting to the lack of ordinary care for his safety, and where the person killed could by the exercise of ordinary care have avoided the consequences to himself of such negligence of the servants of the company, will prevent a recovery by a plaintiff who sues for such homicide. (2) But if the servants of the company were guilty of wilful and wanton negligence, which resulted in the homicide of the person killed, then the negligence of the person killed, however gross, will not defeat a recovery of damages for such homicide by a plaintiff who is entitled under the law to sue therefor.” Under the facts of this case the deceased failed to exercise ordinary care for his safety, and could, by the exercise of such care, have avoided the consequences to himself of the mere negligence of the company. There is no allegation in the petition that the defendant was guilty of “wilful and wanton” negligence, and nothing in the evidence to show this. The court properly granted a nonsuit. Lowe v. Payne, 31 Ga. App. 388 (120 S. E. 691); Gulf Line Ry. Co. v. Way, 137 Ga. 109 (72 S. E. 917); Atlantic Coast Line R. Co. v. Riley, 127 Ga. 566 (56 S. E. 635); Atlantic Coast Line R. Co. v. Fulford, and Bugg v. Knowles, supra.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

Broyles, C. J., and Luke, J., concur.


text:
    16302.
    COLT COMPANY v. BRIDGES.
    The plea of total failure of consideration, based on failure of implied warranty as to suitableness of the acetylene generator bought by the defendant for the purpose of lighting his home, in that it furnished “no light whatever,” was not precluded by express warranty or description, or other provisions, in the written contract of sale; and the court did not err in overruling the plaintiff’s demurrer, in which it was contended that the effect of the plea was to vary the terms of the contract.
    Decided October 6, 1925.
    Complaint; from Randolph superior court—Judge Yeomans. January 31, 1925.
    Certiorari was granted by the Supreme Court.

      B. W. Fortson, H. A. Wilkinson, for plaintiff.

      Charles W. Worrill, for defendant.
   Luke, J.

The plaintiff sued for the purchase-price of “1 Colt Generator, Model N, carbide capacity 50 lbs.,” with designated accessories, bought under a written contract containing the following warranty clause: “It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters.” The contract further stipulated that the generator and appliances were bought f. o. b. factory at Newark, N. J., that the instrument covered all the agreements between the parties, and that it “could not be altered or modified by any agent of the company, or in any manner, except by agreement in writing between the purchaser and the company acting by one of its officers.” The defendant’s plea was total failure of consideration, based on the failure of the implied warranty of the law as to suitableness, in that the plant bought for the purpose of lighting his home furnished “no light whatever.”

1. Neither the description of the articles sold, npr the express warranty contained in the contract, nor the contract as a whole, precluded the plea; in short, the contract was not varied, and the judgment overruling the demurrer to the plea was not error. Hawley Furnace Co. v. Van Winkle Gin Works, 4 Ga. App. 85 (60 S. E. 1008); John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (83 S. E. 138, L. R. A. 1915B, 900); Barber v. Singletary, 13 Ga. App. 171 (78 S. E. 1100).

2. There was evidence to support the verdict for defendant, and the charge of the court, in the absence of any request for more specific instructions, though not as full and lucid as it might have been, will not work a reversal for any reason assigned.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    16365.
    Sawyer v. Hannah.
   Bloodwoeth, J.

1. The court did not err in “overruling and disallowing” the amendments to the answer of the defendant.

2. In her petition the plaintiff alleged that the defendant was indebted to her “in the sum of $4800, besides interest at 7% per annum from the 2d day of January, 1920.” This was denied by the answer of the de^ fendant. The burden was upon the plaintiff to show that the defendant owed her the full amount sued for, before she could recover that amount. There was evidence from which the jury' could have decided that if defendant owed the plaintiff any amount, it was less than $4800. The judge therefore erred in charging the jury that “if plaintiff is entitled to recover at all, she would be entitled to recover $4800, with 7% interest from January 2, 1920, down to the present time.”

Decided October 6, 1925.

Complaint; from Gwinnett superior court—Judge Park presiding. February 16, 1925.

Kelley & Kelley, I. L. Oakes, for plaintiff in error.

O. A. Nix, W. L. Nix, contra.

3. As a new trial results from the foregoing ruling, it is unnecessary to consider the other grounds of the motion for a new trial. Even if they show error, they are not such as are likely to recur on another trial of the ease.

Judgment reversed.

Broyles, O. J., and Luke, J., concur.


text:
    16368.
    ROGERS-MORGAN COMPANY v. WEBB.
    1. The contract is not unilateral.
    2. The contract is not so vague and indefinite as to the cross-ties in question as to be incapable of legal enforcement. Civil Code (1910), § 4268; Burnett v. Harm, 24 Ga. App., 581 (3 a) (101 S. E. 706); Shore Lumber Go. v. American Lumber &c. Go., 23 Ga. App. 135 (1) (97 S. E. 667) ; Bass Dry Goods Go. v. Granite City Mfg. Go., 113 Ga. 1142 (4) (39 S. E. 471).
    3. Where a buyer of cross-ties sues the seller for breach of a written contract to deliver them, he is not precluded from measuring his damages by loss of profits on a particular contract of resale, known to the seller at the time he contracted to sell, by the fact that the contract alleged to have been breached does not specify such measure of damages.
    4. As against the demurrer, each count of the petition set out a cause of action; and the judgment sustaining the demurrer and dismissing the petition was error.
    Decided October 6, 1925.
    Action for breacb of contract; froto Johnson superior court—' Judge Camp. March 16, 1925.

      A. L. Hatcher, W. B. Cook, Franklin & Langdale, for plaintiff.

      F. H. Baffold, M. P. Kea, for defendant.
   Luke, J.

Rogers-Morgan Company, a partnership composed of N. J. Rogers and W. A. Morgan, sued J. E. Webb for breach of a written contract to deliver cross-ties. The petition contained two counts, identical except as to the measure of damages. The first count was substantially as follows: (1) Defendant is a resident of Johnson county. (2) Defendant is indebted to petitioners in the sum of $2649.24, with interest thereon at 7% per annum from May 1, 1923. (3) At the time the transaction hereinafter alleged transpired petitioners were engaged in purchasing and selling cross-ties. (4) At said time defendant was engaged in manufacturing and selling cross-ties. (5) On or about November 28, 1922, petitioners, by W. A. Morgan, one of the partners, entered into the following written contract of sale:

“Adrian, Ga., Nov. 28, 1922.

“J. E. Webb.

“Ship to: Order of Eogers-Morgap Co., Valdosta, Ga.

“How ship: As directed.

“Terms: Cash when loaded and B. of L. is issued by railroad. 15,000 mixed oak ties to be furnished by May 1, 1923, f. o. b. cars, prices and sizes as follows:

“#2 6x7x8'6", .37$!

“#3 6x8 or 7x7x8'6", .47$!

“#4 7x8x8'6", .57$!

“#5 7x9x8'6", .67$!

“To be taken up whenever three or four cars are ready.

“Eogers-Morgan Go.,

“by W. A. Morgan, “Valdosta, Ga., Box 74.

“Accepted: J. E. Webb.”

(6) “That under the terms of said contract petitioners and defendant meant, and, according to the general custom as applied to such terms, such contract meant that petitioners were to pay to defendant for said cross-ties at the prices set out in said contract, and that the ties were to be delivered to petitioner in f. o. b. cars at the nearest point of shipment from where the cross-ties were to be manufactured, which nearest point in this case was and is Adrian, Ga.” (7) “That at the time petitioners and defendant entered into said contract of sale both petitioners and defendant knew that the said cross-ties were to be manufactured by the defendant near Adrian, Ga., and that Adrian, Ga., was the nearest shipping point from where the ties were to be manufactured, and that Adrian; Ga., was the nearest logical shipping point, it being less expensive to haul them there than to any other shipping point.” (8) “That in accordance with the general or universal custom in the cross-tie business, where the contract does not specify, as in this case, how many ties of each several dimensions shall be delivered to the purchaser by the seller, the seller has the option of delivering to the purchaser any number of cross-ties of each dimension that he may see fit to deliver under the terms of the contract of sale.” (9) Defendant delivered only 282 cross-ties under said contract, leaving undelivered 14718 ties. (10) Petitioners made repeated demands on defendant for delivery of said 14718 ties f. o. b. cars at Adrian prior to May 1, 1923, but defendant failed and refused to make such delivery. (11) Defendant failed and refused to deliver any of said 14718 cross-ties f. o. h. cars at Adrian, Georgia, on or before May 1, 1923, or at any other time. (12) On May 1, 1923, the value of said cross-ties of each dimension, as set out and described in said contract, f. o. b. cars at Adrian, Ga., was 18^ per tie more than the price of same set out in said contract. (13) Defendant’s failure to deliver said ties according to the terms of said contract caused petitioners to lose $2649.24, besides interest thereon at the rate of 7% per annum from May 1, 1923, “which is to be added to the principal sum, not as interest eo nomine, but as a part of the damages suffered by petitioners, such interest to be added by the jury at its discretion.”

By striking from the first count paragraphs 12 and 13, and substituting therefor the following paragraphs, we have the second count of the petition: (12) Before said contract was-entered into, petitioners had resold said cross-ties to the Pennsylvania Railroad Company. (13) At the time and before said contract was entered into, petitioners informed the defendant that they had resold said cross-ties to the Pennsylvania Railroad Company, and that they would be compelled to make deliveries thereof in accordance with their said contract of resale. (14) Petitioners had a profit on said contract of resale of said cross-ties of 18^ per tie, and defendant, by having failed to make deliveries of said cross-ties in accordance with the terms of said contract, as shown by the foregoing facts, caused a loss to petitioners in the sum of $2649.24, besides interest, as aforesaid, which is to be added to the principal not as interest eo nomine, hut as a part of the damages suffered by petitioners, such interest to be added by the jury at their discretion.

Defendant demurred to the petition: (1) Because neither count, nor both counts taken together, set out any cause of action against defendant. (2) Because the pretended contract sued on is so vague and indefinite as to the property that no suit can be maintained thereon. (3) Because, under said contract as sued on, there was no binding obligation resting upon any one, and if there was a binding obligation as contended, resting on Mr. Webb, the defendant, there was no collateral or corresponding obligation on the part of the plaintiff, and therefore said contract is unilateral in its nature, and therefore can not be enforced.

The judgment sustaining the foregoing demurrer was error. The headnotes, considered in connection with the statement of the case, need no elaboration.-

Judgment reversed.

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


text:
    16433.
    CITIZENS BANKING COMPANY v. JONES.
    Those grounds of the motion for a new trial which relate to the admission of evidence are not in proper form for consideration.
    No alleged error in the charge of the court or in refusing to charge requires a new trial; and there is ample evidence to support the verdict.
    Decided October 6, 1925.
    Trover; from Dodge superior court—Judge Sheppard presiding. March 26, 1925.

      Roberts & Smith, W. M. Clements, J. II. Milner, for plaintiff in error.

      W. S. Mann, W. A. Wooten, contra.
   Bloodworth, J.

1. “A special ground of a motion for a new trial must be complete within itself, and this court will not consider a ground which complains of the admitting of specified evidence the materiality of which can not be determined without an examination of the brief of evidence or of some other part.of the record.” Mayor &c. of Gainesville v. White, 27 Ga. App. 16 (107 S. E. 571); Veal v. State, 27 Ga. App. 300 (3) (108 S. E. 243); Cœsar v. State, 22 Ga. App. 796 (1) (97 S. E. 255); Tice Co. v. Evans, 32 Ga. App. 387 (16) (123 S. E. 742); Wellborn v. State, 32 Ga. App. 55 (2) (122 S. E. 648); Veal v. Montgomery, 31 Ga. App. 20 (3) (120 S. E. 26). “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.” City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (92 S. E. 28); Luke v. State, 26 Ga. App. 175 (1), 176 (106 S. E. 199), and citations; Knight v. State, 143 Ga. 678 (6) (85 S. E. 905). In a ground of a motion for a new trial which complains of the admission of testimony it must appear how the testimony which was admitted over objection was-material, and how it could have been hurtful to the plaintiff in error. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523). Under the rulings in the foregoing eases we are not called upon to consider the assignments of error in grounds 1 and 2 of the motion for a new trial.

2. When considered in connection with the entire charge and all the testimony, there is no error in any of the excerpts from the charge, of which complaint is made in the motion for a new trial, which requires a reversal of the judgment.

3. The court properly refused to give the requested charge set out in the motion for a new trial.

4. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    16439.
    Eady v. Brownlee et al.

    Decided October 6, 1925.
    Complaint; from Fulton superior court—Judge Humphries. April 18, 1925.

      Anderson, Rountree & Crenshaw, for plaintiff.

      ScOtt Candler, Madison Richardson, for defendant.
   Luke, J.

Under all the facts of the ease the direction of the verdict for the defendants was not error.

Judgment affirmed.

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


text:
    16440.
    PRIOR v. MUSE.
    It appearing, from the allegations of the petition, that the contract sued upon was not an original undertaking, but was a promise to pay the debt of another, and was not in writing, and therefore, under the statute of frauds, was unenforceable, the court erred in overruling the demurrer to the petition.
    Decided October 8, 1925.
    Complaint; from Fulton superior court—Judge Bell. April 11, 1925.
    Muse sued Prior on an oral contract. The petition alleged: that plaintiff was an employee of the Oglesby .Grocery Company, and left a large part .of his earnings with the company as deposits, this indebtedness in the fall of 1921 amounting to over '$20,000; that at that time the authorities in charge of the company decided to liquidate the affairs of the company, and for the company to cease business, the company being in an embarrassed financial condition; that the defendant at that time was vice-president of the corporation, and became president in January, 1922; that the defendant was liable as a guarantor or indorser on an indebtedness due by the said company to the Lowry National Bank, amounting in the fall of 1921 to $70,000 or $80,000; th*at when it was decided to liquidate the affairs of the company the said defendant, who was president of the corporation and who was personally liable as guarantor or surety for the debt of the company in favor of the Lowry National Bank, began to make large payments on the debt in favor of the said Lowry National Bank, on which the defendant was liable as aforesaid, and to prefer the Lowry National Bank over petitioner as a creditor of the corporation; that petitioner, learning that the said Lowry National Bank was being paid in preference to petitioner, and believing that the said company was then insolvent, told the defendant that unless the petitioner was paid an amount proportionate to the amount paid the bank and other creditors, the petitioner would take legal proceedings to have the assets of the company placed in the hands of a receiver or a trustee in bankruptcy, and have all the unsecured creditors, including the petitioner, paid in the same proportion out of the assets of the company; that “thereupon, on or about March 13, 1922, the said defendant proposed to petitioner that if petitioner would not take any legal action such as he contemplated and threatened to do, the said defendant would from that time on pay to petitioner an amount which, when added to the regular dividends which petitioner would receive from the company, would make one dollar paid on the indebtedness to petitioner to each two dollars paid on the indebtedness on which the said defendant was personally liable as guarantor or indorser as hereinbefore set out. Petitioner consented and agreed to said proposition, and it was thereupon agreed between petitioner and said defendant that thereafter the payments to petitioner and to the bank should be in the same proportion to the indebtedness due them by the company; that is to say, that they should receive the same percentage of payments on the indebtedness due them from that time on, and that, in consideration of petitioner’s not taking any legal action in an effort to set aside the preference in the payments theretofore made to the bank over petitioner, the said defendant would pay to petitioner an amount sufficient, when added to the amount petitioner should receive as his regular dividends, to make the amount received by petitioner equivalent to one half the amount paid to the bank;” that under the said agreement stated amounts had been paid to the bank and to petitioner; that under the said agreement with defendant petitioner is still entitled to $1186.86, and that defendant owes him this amount, for which judgment is prayed.
    The defendant demurred to the petition, on the ground that the contract was a promise to answer for the debt, default, or miscarriage of another, was not in writing, and was not binding on the defendant under the statute of frauds.
    The judge overruled the demurrer, and the defendant excepted.

      Troutman & Troutman, for plaintiff in error.

      Branch & Howard, Bond Almand, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Under the agreement between the plaintiff and the defendant there was no substitution of one debtor for another; there was no release of the Oglesby Grocery Company from its obligation to pay the plaintiff; there was no substitution of the defendant in place of the grocery company, because it continued to occupy its relation to the plaintiff as debtor and to pay to him dividends. The bank was not a party to the agreement between the plaintiff and the defendant, and could have sued the grocery company and the defendant, and could have obtained a judgment against both. The petition does not show such detriment to the plaintiff or such benefit to the defendant as would operate as a consideration for the alleged agreement upon which suit was brought, nor does it show any facts which take the agreement out of the statute of frauds. There is no allegation in the petition that, because of the promise of the defendant to make certain payments to the plaintiff, he refrained from bringing suit against the grocery company and the defendant. The alleged agreement of the defendant was a collateral undertaking, and not an original one, whereby a new promisor for a valuable consideration was substituted as the party who was to perform, and the original promisor was thereby released. Strauss v. Garrett, 101 Ga. 307 (28 S. E. 850); Cook v. Weatherford, 28 Ga. App. 207 (110 S. E. 506); Palmetto Mfg. Co. v. Parker, 123 Ga. 800 (51 S. E. 714); Stovall v. Hairston, 55 Ga. 11 (1, 2); Coldwell Co. v. Cowart, 138 Ga. 233 (2), 240 (2) (75 S. E. 425); Davis v. Tift, 70 Ga. 52 (2); Williams v. Garrison, 21 Ga. App. 44 (93 S. E. 510).

The court erred in overruling the demurrer to the petition.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.


text:
    16442.
    WESTERN & ATLANTIC RAILROAD COMPANY v. EDWARDS.
    The verdict being supported by some evidence and approved by the trial judge, this court will not disturb it.
    Decided October 6, 1925.
    Damages; from Whitfield superior court—Judge Tarver. March 14, 1925.
    Tye, Peeples & Tye, Maddox, Maddox & Mitchell, Neel & Neel, for plaintiff in error.

      W. C. Martin, F. K. McCutchen, G. G. Glenn, W. E. Mann, contra.
   Luke, J.

Edwards recovered a judgment against the Western & Atlantic Railroad for alleged personal injuries caused by the negligence of the defendant. The railroad insists solely that the evidence did^not authorize the verdict. The record is voluminous, and we have carefully examined all of the evidence and looked upon it from different angles, as insisted upon by counsel for plaintiff in error, and from this examination we can not say that there is no evidence to support the verdict. There being some evidence to support the verdict, and the verdict having the approval of the trial judge, it was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodivorth, J., concur.


text:
    16443.
    BUSH v. GLOBE & RUTGERS FIRE INSURANCE COMPANY.
    Where the insured suffered a loss from fire, and, under the terms of the insurance policy, furnished to the company sworn proof of his loss, and, acting thereon, the company issued to the insured a draft for the full amount of loss shown by the proofs and claimed by the insured, and where the insured signed a full release for all claims or demands for loss under the policy, and indorsed and collected the draft and retained the proceeds thereof, this constituted a good accord and satisfaction, and, as such, is binding upon the insured.
    Decided October 6, 1925.
    Complaint; from Miller superior court—Judge Yeomans. March 7, 1925.

      Pottle & Hofmayer, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Bloodworth, J.

In September, 1920, the Globe & Rutgers Eire Insurance Company issued to ~W. J. Bush a fire-insurance policy for $10,500, which covered cotton in bales owned or held by the insured in trust or on commission or on joint account with others, or sold but not delivered, while contained in the “J. S. Bush warehouse in Colquitt, Ga.” Later the assured, desiring to borrow some money and pledge a part of the cotton stored, was required by the bank to take out another policy, which he did in the iEtna Insurance Company. This policy covered eleven bales of cotton, which was specifically identified by numbers. A fire occurred and 133 bales of cotton belonging to the insured, including the eleven bales named in the policy of the .¿Etna Insurance Company, were burned. As required by the terms of the Globe & Rutgers policy, the assured rendered to that company a sworn proof of loss, in which it was stated that the actual cash value of the property described in the policy, at the time of the fire, was $7,548.37, that the actual loss and damage by fire was $7,548.37, and that “insured claims under this policy $7,548.37, payment of which insured agrees to and will accept in full satisfaction and demand no more.” After the proofs of loss were submitted, the Globe & Rutgers Eire Insurance Company issued its draft on the Chemical National Bank of New York, payable to the order of W. J. Bush, Bainbridge State Bank, and Cowart & Dancer (the warehousemen), for $7,548.37, the full amount of damages stated in the proof of loss. The draft recites that this payment, “evideneed by proper indorsement hereof, constitutes full satisfaction of all claims and demands for loss and damage by fire” to the property insured, and further recites that “said policy is hereby cancelled and surrendered.” On the back of the draft is the following : “In consideration of the sum hereby! paid, all claims and demands whatsoever against the Globe & Rutgers Fire Insurance Company connected with thé within mentioned claim for loss or damage are released, compromised, settled, and forever discharged.” This was signed by W. J. Bush, Cowart & Dancer, and Bainbridge State Bank. The draft was then presented and paid. Thus the matter stood when the plaintiff brought suit on the policy issued by the Globe & Rutgers Fire Insurance Company to recover for a part of the loss of the eleven bales specifically insured by the ¿Etna Insurance Company. The defendant denied any liability on the policy and pleaded accord and satisfaction, setting up what is stated above as to the proofs of loss, the issuance of the draft in full settlement of the loss claimed, and a complete release by the assured of all claims under said policy by reason of said fire. These pleas were supported by proof, and the plaintiff was not entitled to recover. That the full amount claimed by the insured in his proof of loss was paid' and that-the money was retained stands uneontradieted. It is not denied that the insured signed the proof of loss and the release, and indorsed the draft. It does not appear that at the time he signed these papers, or any one of them, there existed between the insured and the representative of the insurance company any “fiduciary or confidential relations,” or that he was induced to sign these papers by some “misleading device or artifice amounting to actual fraud.” Twyman v. Avera Loan & Investment Co., 23 Ga. App. 136 (98 S. E. 239). See Civil Code (1910), § 4329; Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520, and cases cited on page 521 (61 S. E. 1134); Elrod v. Kiser Co., 13 Ga. App. 471 (79 S. E. 375); Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 (84 S. E. 834); Redmond v. Atlanta & Birmingham Air-Line Ry., 129 Ga. 133 (58 S. E. 875). The facts in the cases cited by the plaintiff in error easily differentiate them from the case under consideration.

Whether or not the plaintiff could have recovered from the defendant any part of the loss occasioned by the destruction of the eleven bales of cotton had he included this claim in his original proof of loss and made no settlement of his loss with the Globe & Rutgers Fire Insurance Company, we are not now called upon to decide.

The court properly directed a verdict for the defendant.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    16500.
    Marshall v. State.
    Decided October 6, 1925.
    Possessing and selling liquor; from city court of Dublin—Judge Bidgood. April 11, 1925.

      W. A. Dampier, for plaintiff in error.

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

On March 2, 1925, at the regular March quarterly term of the city court of Dublin, the defendant’s motion for a new trial was filed. The rule nisi, without having the date of hearing inserted therein, was then signed by the court. “On or about the fifth or sixth of April, 1925,” the court set the hearing for April 11, 1925, by inserting that date in the rule nisi. On April 8, 1925, the court signed an order adjourning the March quarterly term of court. On April 11, 1925, the motion was dismissed, because a copy of it and of the rule nisi had not been served upon the solicitor, who had waived nothing. In the meantime the regular March monthly term of the city court of Dublin had been held, on March 16. Keld, that the March quarterly term of the court stood adjourned by operation of law five days prior to March 16, the commencement of the March monthly term; that the judge’s act attempting to perfect the rule nisi by inserting therein the date of the hearing was coram non judice and nugatory; that the court was without authority to take any action on the motion on April 11; and that the motion automatically went over to the next regular quarterly term, or some subsequent term. Civil Code (1910), § 4877; Coulson v. State, 13 Ga. App. 148 (3) (78 S. E. 1108); Garfield Oil-Mills Co. v. Stephens, 16 Ga. App. 655 (2) (85 S. E. 983); Broadway Nat. Bank v. Kendrick, 130 Ga. 382 (2) (60 S. E. 998); Shockley v. Turnell, 114 Ga. 378 (1) (40 S. E. 279). The court erred in dismissing the motion.

Judgment reversed.

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


text:
    16532.
    WESTERN & ATLANTIC RAILROAD CO. v. ANDERSON.
    “It is essential to the maintenance of an action by a parent for the homicide of his child that the former should at the time of the homicide be to a material extent dependent upon the latter for a support, and that the child should then be actually contributing thereto.”
    Decided October 6, 1925.
    Damages.; from Cobb superior court—Judge Blair. April 15, 1925.

      Tye, Peeples & Tye, Morris, Hawkins & Wallace, for plaintiff in error.

      Hewlett & Dennis, John T. Dorsey, contra.
   Bloodworth, J.

On May 1, 1922, Ernest G. Harris was killed by a train of the defendant. His mother brought suit for damages against the defendant under the following provision of section 4424 of the Civil Code of 1910: “A mother, or, if no mother, a father, may recover for the homicide of a child minor of sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child.” On the trial the mother testified in part as follows: “My son didn’t contribute anything to my support during the whole year of 1921, and he died on the first day of May, 1922. . . I was living in Decatur with my two single daughters. . . My two daughters and I live in the house together and keep house together, us three, and these two girls work out. . . We three staid there and kept house together and I lived off the common fund of my daughters and contributed what labor I could. . . I never asked him (deceased) for anything in 1921. I was dependent upon my daughters for support; and in 1922 I depended upon my daughters for support other than the $45 that he gave me, and the $25 that he paid for my glasses, and paying for those shoes.” The mother further swore that these gifts to her were made “four months before he died.” The record further shows, that, beside the gifts just mentioned, the deceased made no contribution to his mother’s support for the sixteen months immediately preceding his death. The principle announced in Smith v. Hatcher, 102 Ga. 158 (29 S. E. 162), is controlling in the case we are now considering, and we have adopted the first headnote in that ease as the headnote in this one. In the opinion in that case (p. 160) the Supreme Court said: “This court in Clay v. Central R. & Banking Co., 84 Ga. 345, held that the word 'or/ after the word 'dependent/ should be construed to mean 'and.’ Therefore, in order to entitle a parent to recover, it must appear that he, or she, is dependent on the child, and that the latter contributes to the parent’s support. Special attention is called to the use of the verbs 'is’ and 'contributes/ in the present tense. The law does not, therefore, mean that a parent may recover for the homicide of a child upon whom he, or she, has leen dependent, and who has contributed to the parent’s support; nor for the homicide of a child upon whom the parent might, at some future time, become dependent, and who might, but for the homicide, have contributed to the parent’s support. The test is applied at the time of the death. The actual condition at that time is to be looked to. Neither the past nor the uncertainties, nor the possibilities, of the future, are to be considered.” In Fuller v. Inman, 10 Ga. App. 688 (74 S. E. 391), Judge Pottle said: “The statute contemplates present support. It does not deal with the past or future. The child must have been actually contributing to the support of the parent at the time of its homicide, and the parent must have been dependent, either wholly or in part, upon the child at that time, in order to authorize a recovery.” The evidence for the plaintiff fails to show that at the time of the death of her son she was dependent upon him, and that he was at that time contributing to her support. See Augusta Southern Railroad Co. v. McDade, 105 Ga. 134 (7),

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

138 (7) (31 S. E. 430).


text:
    16539.
    Lyle v. Campbell.
    Decided October 6, 1925.
   Bloodworth, J.

The court did not err in any of its rulings on the pleadings, and properly directed a verdict for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Lulce, J., ooneur.

Complaint; from Carroll superior court—Judge Eoop. April 15, 1925.

Smith & Taylor, for plaintiff in error.

Boykin & Boykin, contra.