of the corporation; that Pearson sold to MeKinnon 95 shares of stock in the corporation at $300 per share; that the "petitioner shows that by the above deceptive means and fraudulent practice the said H. W. Pearson secured petitioner's services in disposing of his property and enriching himself, and now fails and refuses to pay petitioner any sum whatever for such services. Petitioner further shows that the said H. W. Pearson is indebted to him by reason of the above-stated facts in the sum of $1,500, this being the amount finally agreed upon between said Pearson and petitioner, after having failed to protect him in the collection of the full 5 per cent., the said H. W. Pearson having agreed with petitioner to protect him in the sum, and having failed to do so, in violation of the trust and confidence imposed in him by petitioner and in violation of his agreement to do so." The defendant demurred generally and specially, and the court sustained the general demurrer. Held, that the petition did not set forth a cause of action, and it was not error to sustain the demurrer and dismiss plaintiff's petition. Error from Superior Court, Wayne County; J. P. Highsmith, Judge. Action by T. J. Arline against H. W. Pearson. There was a judgment sustaining a demurrer to and dismissing the petition, and plaintiff brings error. Affirmed. H. P. Cobb, of Savannah, and Gibbs & Turner, of Jesup, for plaintiff in error. Jas. R. Thomas, of Jesup, for defendant in error. LUKE, J. Judgment affirmed. tle Guarantee & Loan Company, 96 Ga. 625, 24 DENCE. EVI The testimony of an officer of the defendant bank, as to statements made in his presence by the husband of the plaintiff at the time the husband opened the account with the bank, which statements showed the terms upon which the deposit was made, was legal and relevant. This was not a suit by or against the estate of a deceased person, and the bank had the undoubted right to show upon what conditions the deposit in question was made. Greene v. Bank of Camas Prairie, supra. 5. INSTRUCTIONS-PROPRIETY. None of the instructions of the court to which exception was taken contain material error. 6. INSTRUCTIONS-REQUESTS. There is no merit in ground 5 of the motion for a new trial, which complains that the court failed to give certain instructions to the jury. In the absence of a timely written request for these instructions, they were sufficiently covered by the instructions given by the court. 7. VERDICT-EVIDENCE-SUFFICIENCY. The verdict was authorized by the evidence, and the court did not err in refusing the grant of a new trial. Error from City Court of Ashburn; R. L. Tipton, Judge. Action between Mrs. A. M. Moore and the WADE, C. J., and JENKINS, J., concur. Citizens' Bank of Ashburn. There was a (21 Ga. App. 183) MOORE v. CITIZENS' BANK OF ASH BURN. (No. 8852.) judgment for the latter, and the former See, also, 91 S. E. 932. E. K. Wilcox, of Valdosta, and A. S. Bus (Court of Appeals of Georgia, Division No. 2. sey, of Ashburn, for plaintiff in error. Jas. (21 Ga. App. 229) CITIZENS' NAT. BANK OF DANVILLE, KY., v. FENDER. (No. 8842.) (Court of Appeals of Georgia, Division No. 2.. Nov. 2, 1917.) (Syllabus by the Court.) -RIGHTS OF-WITNESS-COMPETENCY. Where, by the terms of the contract of deposit, money is received on deposit in the name of the wife of the depositor, with the agreement that he (the depositor) may draw the deposit on checks to which he shall sign his wife's name per his own name, and where he does draw the money so deposited on checks so signed, the wife cannot hold the bank liable for the money so deposited and drawn out. It is not error The admission of the evidence complained of to allow an officer of the bank to testify to the terms of the agreement, although the depositor with whom it was made be dead. Greene v. Bank of Camas Prairie, 7 Idaho, 576, 64 Pac. 888. See, also, 7 Corpus Juris, 641, § 325. 3. WITNESSES 141-COMPETENCY-DECEASED PERSONS. An agent of a corporation which is a party to a cause is not incompetent, under the terms of section 5858 of the Civil Code of 1910, to testify to communications or transactions had with a deceased individual, where, as in this case, the latter's personal representatives were not parties to the cause. Ullman v. Brunswick Ti 1. AGENCY FOR COLLECTION-EVIDENCE. The in the first, second, third, and fourth grounds of the amendment to the motion for a new trial was not error for any reason assigned. evidence for the defendant, together with the legal inferences and deductions arising therefrom, was sufficient to authorize a finding by the jury that Alexander and Lowe were the collecting agents of the plaintiff bank in regard to the note, and that the payments made to them in behalf of the defendant should be credited on the note. It is true that the plaintiff's evidence plainly showed that Alexander and Lowe had no authority from it to accept any payments on the note, but this issue of fact was finally determined by the jury in favor of the defend- the judgment, plaintiff brings error. Affirmed. ant. 2. BILLS AND NOTES IDENCE. 539-VERDICT-EV There is no merit in the fifth ground of the amendment to the motion for a new trial, which sets up that the verdict is contrary to the law and the evidence for the reason that the jury Hendricks, Mills & Hendricks, of Nashville, for plaintiff in error. Shipp & Kline and L. L. Moore, all of Moultrie, for defendant in error. BROYLES, P. J. Judgment affirmed. BLOODWORTH and HARWELL, JJ., concur. allowed the defendant credit for the amount of $75, set out in his plea and therein alleged to have been paid by the defendant's son, while there was no evidence in support of this alleged payment. It is true that there was no evidence that the defendant's son made a payment of $75 on the note, but the evidence for the defendant did show that the son made a payment of $100 on the note, and this discrepancy merely as to the amount of the payment did not render the verdict contrary to law and the evidence. It is obvious from the record that (Court of Appeals of Georgia, Division No. 2. this $100 payment, shown by the evidence, was the same payment referred to in the defendant's answer, although therein alleged to have been only $75. The record does not disclose that any objection was made to the admission of the evidence as to this $100 payment, on the ground that it was unauthorized by the pleadings. 3. CREDIT ON NOTE-EVIDENCE. There is no merit in ground 6 of the amendment to the motion for a new trial, which complains that the jury allowed a credit of $30 on the note, while the evidence shows that this $30 was paid for the use of one of the mules for which the note was given. It does not appear that the jury allowed this amount as a credit on the note. 4. TRIAL 333-VERDICT-AMOUNT. The verdict for $25.50 as principal is not contrary to the pleadings and the evidence for the reason that the defendant in his answer admitted that he was liable for a balance on the note of "something like $39.20." The admission so worded did not of itself render the verdict illegal. 5. INSTRUCTIONS-ERRor. The instructions of the court to which exceptions were taken are not, when considered in the light of the entire charge and of the facts in the case, erroneous for any reason assigned. 6. AMENDMENT TO MOTION FOR NEW TRIAL. The other grounds of the amendment to the motion for a new trial are without substantial merit. 7. ACTION ON RENEWAL NOTE EVIDENCE OF FRAUD. The note sued upon was a renewal note (for the same amount as the original note), in which the title to two mules, for the purchase price of which the original note was given, was retained. In addition, as further security, the renewal note contained a mortgage upon two other mules. The evidence for the defendant, who could not read or write, was sufficient to authorize a finding that the execution of the renewal note by the defendant (who made his mark thereto) was procured through fraud, and that certain credits made on the original note should be deducted from the amount of the principal of the renewal note. It is true that the plaintiff's evidence showed that no fraud was practiced on the defendant, but the jury settled this question by their verdict. 8. APPEAL AND ERROR 1005(2)-VERDICTINTERFERENCE. There was some evidence which authorized the verdict, and it having been approved by the trial judge, this court has no authority to interfere. Error from Superior Court, Colquitt County; W. E. Thomas, Judge. Action by the Citizens' National Bank of Danville, Ky., against Frank Fender. From (21 Ga. App. 133) BRACEWELL v. STATE. (No. 9034.) Oct. 31, 1917.) (Syllabus by the Court.) 1. CRIMINAL LAW 1169(5)—HARMLESS ERROR-EVIDENCE-ADMISSIBILITY. The court did not err in allowing the witness Wynn to testify that he was jointly inguilty to the same charge; the jury being suffidicted with this defendant, and had pleaded ciently instructed that "any plea he made would not bind the defendant." 2. WITNESSES NEYS. 205-COMPETENCY-ATTOR An attorney is both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner than by virtue of his relations as attorney, or by reason of his anticipated employment as attorney. Pen. Code 1910, § 1037 (5). 3. CHARGE-PROPRIETY. The charge of the court excepted to in ground 3 of the amendment to the motion for a new trial, when considered together with the general charge, fully and fairly instructed the jury on the subjects of presumption of innocence and burden of proof, and is not subject to any of the criticisms made thereon. 4. CRIMINAL LAW 59(5)-PRINCIPAL'S MISDEMEANOR "PRINCIPAL. The court did not err in defining to the jury a principal in the first degree and a principal in the second degree, and in instructing them that all persons aiding and abetting in the perpetration of a misdemeanor are indictable as' principals. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Principal.] 5. CIRCUMSTANTIAL EVIDENCE-CHARGE. The court sufficiently instructed the jury on circumstantial evidence and reasonable doubt, and the exceptions taken to the charge in grounds 5 and 6, complaining that the court failed so to do, are therefore without merit. 6. CRIMINAL LAW 1178-APPEAL-WAIVER OF GROUND. new trial, not being argued in brief of counsel The remaining ground of the motion for a for the plaintiff in error, will be treated as abandoned. 7. REFUSAL OF NEW TRIAL-PROPRIETY. The evidence authorized the verdict, and the court committed no error in refusing the defendant a new trial. Error from City Court of Dublin; R. D. Flynt, Judge. R. S. Bracewell was convicted of dynamiting fish, and he brings error. Affirmed. John R. Cooper, of Macon, for plaintiff in error. S. P. New, Sol., of Dublin, for the State. HARWELL, J. The defendant was jointly charged with one Wynn of dynamiting fish, was tried in the city court of Dublin, and found guilty. The evidence shows that defendant suggested to Wynn that they go down to the Turkey creek and get a mess of fish, and together they went to the creek. Defendant was not seen to have any fishing tackle of any kind when he went to the creek. A large explosion was heard at the creek, and when witnesses who heard the same arrived at its source they found the water muddy, dead fish floating on its surface, and saw the defendant and Wynn gathering in the fish. Wynn was in the water picking up fish, and the defendant on the bank with a dip net, dipping them up. The defendant was afterward seen on his way home with the fish, and when asked if they were fit to eat, replied that they were. We think the evidence amply supports the verdict, and the errors alleged to have been committed on the trial are dealt with in the headnotes to this decision. Judgment affirmed. BROYLES, P. J., and BLOODWORTH, J., concur. (21 Ga. App. 108) MADDEN v. S. L. MITCHELL AUTOMO- tanooga Sight-Seeing Company. Briefly stat- (Court of Appeals of Georgia, Division No. 2. time that children were in the habit of Oct. 31, 1917.) (Syllabus by the Court.) 1. CARRIERS 318(1) INJURY TO CHILD EVIDENCE-NONSUIT. The evidence supported the material allegations of the petition, and the court erred in granting a nonsuit. (Additional Syllabus by Editorial Staff.) 2. CARRIERS 282-TRESPASSER-DUE CARE. Where an infant of immature years trespasses on running board of a sight-seeing car the only duty owed him is not to injure him wantonly or willfully, which rule ordinarily imposes simply the duty of taking proper precautions after his presence in a position of peril is discovered. 3. CARRIERS 347(2)—QUESTION FOR JURY— CONTRIBUTORY NEGLIGENCE. On evidence in an action for death of plaintiff's infant son, a trespasser on the running board of a sight-seeing car, from the alleged willful and wanton negligence of the driver, held, that the question of decedent's failure to exercise due care according to his capacity was for the jury. jumping upon the steps or running board of the car at this point; that upon entering the playground the car was running at a speed of about 3 miles an hour, and soon after it entered the ground petitioner's son, together with three others, ran out to jump upon the running board and ride, two of the boys running across the road in front of the car and boarding the left side of the car, while plaintiff's son and another attempted to swing on the running board on the right side; that petitioner's son missed the running board of the car, was hurled under it, and the right wheel of the car ran over him, inflicting injuries from which he soon died. It is alleged that the driver of the car, just at the time petitioner's son undertook to board the same, applied more power to the machine, causing it to move faster, and that by such sudden motion of the car the boy was tripped up and killed. The petition further al Error from Superior Court, Walker Coun-leged that deceased was lacking in experi ty; M. C. Tarver, Judge. Suit in ejectment by T. F. Madden against the S. L. Mitchell Automobile Company and others. Judgment of nonsuit, and plaintiff brings error. Reversed. ence and discretion, and was incapable of appreciating the danger of undertaking to board the car while in motion; that Burns, the driver, had full control and management of the car, and knew that deceased had on previous occasions mounted and ridden on T. F. Madden filed suit in attachment his car at this point, as he was undertaking against S. L. Mitchell Automobile Company, to do at this time; that divers other boys of S. L. Mitchell, and Lookout Mountain & Chat-about equal age as deceased had prior to this time, with the knowledge of Burns and without objection from him, jumped upon his car at this point, when going in this direction, and that said driver was aware of the lack of discretion and experience on their part, and their inability to appreciate the danger in their conduct in so boarding the car. The driver was charged to be negligent in that, although he knew of the children's custom of boarding his car at said point, and had often so permitted them to do, and though he knew their lack of experience and realized the danger they incurred in so boarding the car, and knew, or ought to have known, that deceased was attempting to board his car, he on this occasion failed to ascertain whether any of the children had boarded, or were attempting to board, his car as he passed the playground, but instead of so ascertaining he speeded up his car at this point, contrary to his usual custom. There were further allegations as to the earnings of deceased, his contribution to the support of plaintiff and his family, and the attachment proceedings theretofore had in aid of this suit. At the conclusion of the plaintiff's evidence on the trial, the court, on motion, granted a nonsuit, to which the plaintiff excepts. The evidence adduced at the trial will be stated in the opinion. C. R. Jones and O. N. Chambers, both of Rossvilie, R. M. W. Glenn, of La Fayette, and W. M. Henry, of Rome, for plaintiff in error. Rosser & Shaw, of La Fayette, and Allison, Lynch & Phillips, of Chattanooga, Tean., for defendants in error. case. HARWELL, J. (after stating the facts as above). [2] The principles of law announced by the court in Ashworth v. Southern Railway Company, 116 Ga. 635, 43 S. E. 36, 59 L. R. A. 592, are applicable to the instant The Ashworth Case has been followed by a number of decisions since rendered by the Supreme Court of Georgia. The cases cited by the defendant in error from other jurisdictions we do not think conflict with the ruling in the Ashworth Case. In Zigman v. Beebe, 97 Neb. 689, 151 N. W. 167, L. R. A. 1915D, 536, one of the cases cited by defendant in error, the court said: "The question would be different if the driver was aware that the children were congregating on and about it [the wagon], and were liable to be injured if not warned away, and this is the principle upon which some cases have been de cided." has been discovered. It will not do, however, ence. * * * * can not, in all cases, relieve itself from liability to While the deceased in the instant case is to be treated as a trespasser, the question to be determined by this court is whether or not the evidence submitted by the plaintiff, tested by the rules announced in the Ashworth Case, supra, made such a case of wanton and willful negligence by defendant's servant in charge of the car that the case should have been submitted to the jury, and whether, therefore, the court erred in granting a nonsuit. [1] Questions of negligence are peculiarly for the jury. Wynn v. City & Suburban Ry. of Savannah, 91 Ga. 344, 17 S. E. 649, (7). Nonsuit should not be granted if there is any evidence to support the allegations of the petition. Civ. Code 1910, § 5573. The evidence in this case supports the allegations of the The testimony of the plaintiff's petition. witnesses, briefly stated, showed the following facts: That this sight-seeing car was run from Chattanooga, through Rossville, to Chickamauga National Park, and carried passengers for hire to points of interest along this route; that Burns, the driver, was in entire charge of the operation of the car, and his duties were to collect fares and operate the car; that at a place called the Iowa monument the driver always checked the speed of his car and delivered a "spiel" to the passengers, explaining this point of interest; that this place was a playground for children, especially for certain boys who congregated here and played ball; that it was the regular custom of these children, when the car "slowed up" at this point, to mount the running boards of the sight-seeing car At any rate, the ruling announced by the Supreme Court in the Ashworth Case is the law of this state. In that case it was held: "Notwithstanding the plaintiff was an infant of immature years, he was wrongfully upon the running board of the company's engine, and was therefore a trespasser. The only duty which a railroad company owes a trespasser is not which ran lengthwise of the car on both to injure him wantonly or willfully; and ordi- sides, about a foot above the ground; that narily this rule imposes upon the company simply the duty of taking proper precautions after this custom extended over a period of several the presence of a trespasser in a position of peril years, and was well known to Burns, the driver who was in charge of the car on this, that they would do as they had been regularoccasion. One of the witnesses testified: "It was the habit of us boys to ride when we pleased at this particular place; that had been our habit and custom about two years. Mr. Burns and the other drivers made no objection to our doing that. When I made these trips in these cars I got out there I did at the park and opened the gates for them. The driver, Mr. Burns, and the others knew we opened the gates; it was an accommodation to him and the passengers." ly in the habit of doing-mount or attempt to mount his car when it decreased its speed at this point, and to take the necessary precautions for their safety. It is for the jury to say whether or not on this occasion the presence of these boys for this purpose was known to the driver. It is for the jury to say whether or not the driver's negligent conduct under the circumstances amounted to wantonness and willfulness, and was the proximate cause of the boy's death. [3] Whether or not the deceased's failure to exercise due care-that is, such care as his age and capacity fitted him to exercise under the circumstances surrounding him at the time-would preclude recovery is also a question to be passed on by the jury, under appropriate instructions from the court. The court erred in granting a nonsuit, and the judgment is reversed. BROYLES, P. J., and BLOODWORTH, J., concur. (21 Ga. App. 100) COLEMAN et al. v. HUTCHESON, YEOMANS & CO. (No. 8680.) The testimony further showed that these boys would ride upon the car to a certain monument called the Wilder monument, and there get off with the driver and passengers to visit this point of interest, and then ride to a certain place on the return of the car, where they all got off. The evidence tended to show that this custom was well known to the driver, Burns, and tacitly consented to by him; that on the day when deceased met his death one of his companions had already mounted the car as it approached the Iowa monument; that as it approached, the boys were there in the road for the purpose of swinging it, as was their custom; that one of them ran across the road about 15 feet in front of the car to the left-hand side of the car, and that the driver was looking ahead and must have seen this boy; that two of the (Court of Appeals of Georgia, Division No. 2. boys were in the road on the right-hand side for the purpose of swinging the car, one of them being the deceased; that they were in this position some 26 feet in front of the car, so that the driver, in looking ahead, must have seen them as well as the boy who ran across in front of the car; that as the car approached the place of the Iowa monument, where these boys were congregated in the road, it was running about 4 miles an hour; that the deceased attempted to mount the running board of the car, and in doing this fell under the wheels, and was run over and killed; that just as the deceased mounted the car, or attempted to mount it, the driver "speeded up" the car, and this sudden increase in speed caused deceased to fall. One of the witnesses testified: "He speeded up his car to keep us off; he hadn't been used to speeding up his car, and I just assume that was the reason." We have carefully examined the record in this case, and in our opinion the testimony of the plaintiff's witnesses tended to support the allegations of the petition, and certainly made a case for submission to a jury. It is for the jury to say whether these boys were accustomed to congregate at this point, and whether or not the custom of these boys to mount this sight-seeing car was so regular and continuous and was so well known to this particular driver as to make it his duty to anticipate, when he saw the boys there, Oct. 31, 1917.) (Syllabus by the Court.) 1. APPEAL AND ERROR 1001(1)—REVIEW— VERDICT. The motion for a new trial embraces the general grounds only; there is ample evidence to support the verdict. And when the jury has passed upon the questions of fact, and such quesfere with the finding if there is any evidence to tions only are involved, this court will not intersupport it. 2. COSTS 263-FRIVOLOUS APPEAL-PEN ALTY. The writ of error in this case is without mer it, was evidently sued out for delay only, and the prayer of the defendant in error that 10 per cent. damages be awarded against the plaintiff in error, as provided in section 6213 of the Civil Code of 1910, is granted. Error from Superior Court, Toombs County; R. N. Hardeman, Judge. Action between J. D. Coleman and others, administrators, and Hutcheson, Yeomans & Co. There was a judgment for the latter, and the former brings error. Affirmed. Giles & Sharpe, of Lyons, for plaintiffs in error. Williams & Williams, of Lyons, and williams & Bradley, of Swainsboro, for defendant in error. BLOODWORTH, J. Judgment affirmed, with damages. BROYLES, P. J., and HARWELL, J., con cur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |