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diligence or not), would, at the time of the
the language is "legal and natural,” it would appear to the writer that probably the word "material" originally found its way into the section by inadvertence or misprint, and that the same expression, “legal and matural,” was intended to be used. This, however, is merely conjectural. In Atchison, T. & S. F. Ry, Co. v. Parry, 67 Kan. 515, 73 Pac. 105, it was held that “negligence, to be the proximate cause of an injury, must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury would result.” This is quoted approvhgly in Western & Atlantic R. Co. v. Bryant, 123 Ga. 77-83, 51 S. E. 20, 23. In Mayor & Council of Macon v. Dykes, 103 Ga. 847, 848, 31 S. E. 443, it was said that “the rule is that, in order to recover for an injury alleged to have resulted from the negligence of anOther, the injury must be the natural and probable consequence of the negligence; or, as Otherwise stated, the wrong and resulting damage must be known, by common experiente, to be naturally and usually in sequence. The damage, according to the usual course of events, must follow from the wrong. The principle in this state seems to be substantially the same.” In 1 Shearman & Redfield on Negligence (5th Ed.) $ 29, , it is said: “The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they Could have been ascertained by reasonable
negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” In Insurance Co. v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395, it is said: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.” See, also, Southern Ry. Co. v. Webb, 116 Ga. 152, 42 S. E. 305, 59 L. R. A. 109; Thompson on Negligence, $ 59; St. Louis Ry. Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54.
3. It requires no argument to show that it was negligent to knowingly place a drunken conductor armed with a pistol and of bad habits in charge of a passenger car, traversing the streets of a city, or at least that it should be left to the jury to determine whether this was not negligent. As matter of law, on demurrer, we cannot say that this was not an act of negligence. It was contended that the homicide was not the natural and probable result of such act on the part of
apt to endanger life and safety than to place in control of a passenger street car the combination of a dangerous character, a conductor loaded with whisky, and a pistol loaded with powder and ball. In Christian v. Columbus & Rome Ry. Co., 79 Ga. 460, 7 S. E. 216, it was held that if a railroad company employed an agent and assigned him to duty with knowledge that he was insane, or of his being subject to sudden fits of insanity, it would not be excused from responsibility for a homicide committed by him while engaged in its business. See, also, Central Ry. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) SOS, 110 Am. St. Rep. 170; Kerlin v. Chicago R. Co. (C. C.) 50 Fed. 185; Williams v. Missouri Pacific Ry. Co., 109 Mo. 475, 18 S. W. 1098. If the company negligently assigned the conductor to take charge of the car, and, while acting in the general scope of the business entrusted to him, he wrongfully shot at a passenger, and as a proximate consequence thereof a person passing on the highway was killed, the company would be liable. It is urged that the decision in Belding v. Johnson, 86 Ga. 177, 12 S. E. 304, 11 L. R. A. 53, is controlling as to liability not resulting from the placing of the drunken conductor in charge of the car. In that case it was alleged that a saloon keeper sold and continued to furnish liquor to a person who was drunk, knowing that such person, when under the influence of liquor, was dangerous. The person so furnished shot and killed another while thus drunk. On demurrer it was held that the homicide was not the proximate result of the sale of the liquor. This differs materially from the present case. A more sale of liquor to a drunken customer is not at all the same as knowingly to place a drunken employé, armed with a pistol, in charge of a car, with the duty of controlling it, dealing with passengers and conducting a part of its business. In Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331, where a barkeeper assaulted a person who was in the saloon in an intoxicated and helpless condition, the court held that the proprietor of the saloon was liable. What facts may be developed by the evidence we cannot, of course, foresee, but the court properly overruled the demurrer and retained the case for submission to the jury on the evidence. Judgment affirmed. All the Justices con. cuit.
ANDERSON v. HALL. (Supreme Court of Georgia. June 14, 1907.)
1. INJUNction—VIOLATION.—ContFMPT. Where the defendant in an injunction proceeding is informed by the attorney for the plaintiff that a temporary restraining order has been issued against him, and is also shown a copy of the order, which information clearly
the company. But we know nothing more
and plainly indicates what is the act from whic
he must abstain. he is bound to obey the order of the court, whether he is served with the writ or not; and a refusal or failure to comply with the order, under such circumstances, is as much a contempt as if the defendant had been personally served by the sheriff with the writ. Murphey v. Harker, 41 S. E. 585, 115 Ga. 77. | Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, $ 446.]
2, SAME–NoTICE OF INJUNCTION.
The evidence was sufficient to authorize the court below to find and hold that the defendant had been notified of the contents of the restraining order by the attorney for the plaintiff, and actually read a copy thereof which was exhibited to him by said attorney, and that, after being thus notified, the defendant violated the terms of the order; and the judgment holding the defendant in contempt for said violation should be allowed to stand.
(Syllabus by the Court.)
Error from Superior Court, Wilcox County; J. H. Martin, Judge.
Action by Emma Hall against G. H. Anderson. Judgment for plaintiff. Defendant brings error. Affirmed.
Haygood & Cutts, for plaintiff in error. C. C. Curry and D. B. Nicholson, for defendant in error.
BECK, J. Judgment affirmed. All the Justices Concur. E.
CENTRAL OF GEORGIA RY. CO. v. FOREHAND.
(Supreme Court of Georgia. June 15, 1907.)
1. CARRIERs—CARRIAGE of PASSENGERS–ACTIONS For INJURIES-QUESTION FOR JURY. Whether the act of a passenger on a railroad train in leaving his seat and going to the door or upon the platform of the coach, while the train is in motion, and before it comes to a full stop, is such negligence as would defeat a recovery for an injury resulting from the negligence of the company in operating its train, is a question for the jury to determine from all the facts and circumstances of the particular case under consideration ; and, in the determination of this question, the jury are authorized to take into consideration the age and physical condition of the passenger, the speed of the train, the reason of the passenger for leaving his seat and going to the door or upon the platform, the purpose to be accomplished, and all other attendant facts and circumstances as disclosed by the evidence. Augusta Southern R. Co. v. Snider, 44 S. E. 1005, 118 Ga. 146, and cases cited ; Cotchett v. Savannah Ry. Co., 11 S. E. 553, 84 Ga. (587. See, also, Parris v. A., K. & N. Ry. Co. (decided May 20, 1907) 57 S. E. 692. (Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, $$ 1375–1378, 1383.] 2. DAMAGES-EXCESSIVE. The petition set forth a cause of action, the evidence authorized the verdict, the amount found as damages was not excessive, and no sufficient reason appears for reversing the judgment. (Syllabus by the Court.)
Error from Superior Court, Macon County ; Z. A. Littlejohn, Judge.
Action by S. R. Forehand against the Central of Georgia Railway Company for per
sonal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.
W. D. Kiddos, for plaintiff in error. Hoke Smith and Smith, Berner, Smith & Hastings, for defendant in error.
ATKINSON, J. In addition to what is stated in the headnotes, we do not deem it necessary to make any statement with ref. erence to the case, further than a brief ref. erence to the amount of the verdict. There was testimony from which the jury could have found that the plaintiff was 38 years of age, of robust health, and of active business habits. For five years immediately preceding the injury he had earned an average of from $1,200 to $1,700 per annum. He was riding on the train of the defendant as a passenger, and was approaching the station to which he was destined. The station was a flag station, at which trains stopped for a very short time, and it was customary for passengers intending to leave the train at that station to leave their seats while the cars were still in motion and go to the plat. form, so as to alight immediately upon the stopping of the train. On this occasion the train was running 35 or 40 miles an hour, but, upon approaching the station, commenced to slack speed, as usually done preparatory to stopping, whereupon the defendant left his seat and proceeded to the platform in order to leave the train. Upon reaching the door, he perceived that the car was passing his station, and thereupon turned to call to the conductor or other servants operating the train, 'at which time the train, without stopping, gave a sudden jerk forward and threw him out of the door onto the platform, thence to the ground, dragging him a short distance, bruising his head and face, and finally running over his leg above the ankle. Amputations were necessary and were performed at two different times. The wound did not heal for eight months. He was unconscious for several days after the injury, and suffered great pain. He was unable to do any kind of work up to the time of the trial, and his earning capacity was permanently impaired. The jury returned a verdict in his favor for $15,000. The evidence being such as to authorize the jury in finding all of the foregoing to be true, we cannot say that the verdict for $15,000 in favor of the plaintiff was excessive. Judgment affirmed. All the Justices conCur.
VICKERS v. HAWKINS. (Supreme Court of Georgia. Aug. 8, 1907)
1. INFANTs–Actions—WRIT or ERRoß—BILL OF EXCEPTIONs—SERVICE. Where a minor sues by prochein ami, and prevails at the trial, the prochein ami is the proper person upon whom the hill of exceptions sued out by the defendant should be served.
NAME. The misspelling of an official's name to a process does not invalidate it, if it is made to appear that the official authorized another to sign it in his presence, or actually adopted the signature and acted upon it, 3. SAME, The addition of the letters “T. C.” to the signature to a tax execution sufficiently indicates the Official who issued it did so in his capacity as tax collector. 4. SAME. A tax fi, fa. in the following words: "Georgia, Worth County. To the Sheriff of Worth County, to Execute and Return, to Advertise and Sell According to Law: You are hereby commanded that on unreturned wild land number 211, in the 14th district of Worth counsy, you cause to be made the sum of $3.26, it being the amount of state and county taxes for the year 1888, and the further sum of 50 cents for the costs of this fi, fa. and make due return thereof to me according to law. Herein fail not. Given under my hand and seal, this 20th day of Dec., 1888. (Signed] W. J. Stoy, T. C.” -recites the necessary jurisdictional facts required by the statute.
5. SAME, Under the law in force in the year 1888,
a tax execution against unreturned wild land
was properly issued by the tax collector.
6. SAME. The levy of an execution should be signed by the levying officer. If another sign the levying officer's name, the levying officer may adopt the signature as his own. Where the undisputed evidence is that the levying officer caused the property to be advertised for sale pursuant to the levy, personally cried it at the sale, executed a deed to the purchaser, and made an entry of the sale on the fi, fa., it is sufficient to authorize as inference that the levying officer adopted the signature as his own. 7. Evidence—Document ARY EVIDENCE—PRELIMINARY PROOF–DETERMINATION. The Civil Code of 1895, $ 3628, relating to A filing of an affidavit of forgery to a deed, and having a special issue made up and tried as to the genuineness of a deed attacked for forgery, is inapplicable to a fi, fa, and entry of levy thereon, offered in connection with a sheriff's deed, which is also attacked for forgery.
& TRIAL–INSTRUCTIONs—PRov1NCE of Count AND JURY.
A request to charge that “the law presumes that an officer does his duty, and an entry made on an Official document, purporting to be an entry by the officer whose duty it is to make it, is presumed to be the act of such officer, and such presumption is not overcome except by the songst proof,” was properly refused. The Vice of the request is an intimation of opinion as to the quantum of proof necessary to overcome * rebuttable presumption. (Pl. Note—For cases in point, see Cent. Dig. Vol. 46, Trial, $$ 439–466.j point, g
(Syllabus by the Court.)
Error from Superior Court, Worth County; W. N. Spence, Judge.
Action by Herbert Hawkins, by next friend, against E. L. Vickers. Judgment for pointiff, and defendant brings error. Plaintist sued out a cross-bill. Judgment on the main bill reversed and on the cross-bill affirmed.
Fulwood & Murray, J. J. Forehand, and 4. D. Harrison, for plaintiff in error. T. R.
Perry, J. H. Tipton, and Hall & Hall, for defendant in error.
EVANS, J. The action was complaint for land, and has been twice tried. On a review of the first trial the verdict was set aside and the case remanded to the superior court. See 111 Ga. 119, 36 S. E. 463. On the second trial the plaintiff introduced a grant from the state, and mesne conveyances from the state's grantee to herself. The defendant proffered in evidence a tax fi, fa. and the sheriff's deed to one Dixon (under whom he claimed title), whereupon the plaintiff filed an affidavit of forgery, averring that the sheriff's deed, the tax f. fa., and the entry of levy on the fi. fa. were forgeries. Upon the preliminary proof submitted by the defendant, the court allowed in evidence the sheriff's deed and the tax fi, fa. Over the plaintiff's objection. The plaintiff excepted pendente lite to the admission of the deed and fi. fa. The court ruled that the filing of the affidavit of forgery devolved upon the defendant the burden of proving the genuineness of the tax fi, fa. and levy, and to show that any alteration appearing in the entry of levy was made prior to the sheriff's sale, and instructed the jury to this effect. No separate issue of forgery was made, but the issues of the genuineness of the tax fl. fa. and entry of levy were submitted along with the other issues in the case. The defendant also introduced a deed to himself from the purchaser at the tax sale, and proof that he had been in possession of the land since that time, and had made thereon permanent and substantial improvements. The jury returned a verdict for the plaintiff, the court refused a new trial, and the defendant excepted. The plaintiff sued out a cross-bill of exceptions, assigning error on her pendente lite exceptions. 1. On the call of the case in this court the defendant in error moved to dismiss the bill of exceptions because the only service thereof was an acknowledgment of service by the next friend, Herbert Hawkins; that he is only a formal party, and that A. H. Hawkins is the real party in the case, and service should have been made upon her. The purpose of having a guardian ad litem, or next friend, to represent a minor, is to furnish a person sui juris to carry on the litigation for the minor's benefit. Service of notice or other process pertaining to the case prosecuted by a prochein anni should be made upon him. He represents the minor in the particular litigation, and, if service cannot be had upon him, his connection with the case would be without practical value. We the refore hold that the next friend was the prop. er person upon whom to serve the bill of exceptions, and the motion to dismiss is denied. 2. As between the litigants according to the proof made at the trial, the ownership of the land in controversy depends upon the
validity of the tax sale. We will therefore first examine the objections to the admissibility of the tax fi, fa. upon which error is assigned in the cross-bill of exceptions. The tax f. fa. was as follows: “Georgia, Worth County. To the Sheriff of Worth County to Execute and Return, to Advertise and Sell According to Law: You are hereby commanded that of unreturned wild land number 211, in the 14th district of Worth County, you cause to be made the sum of $3.26, it being the amount of state and county tax for the year 1888, and the further sum of 50 cents for the costs of this fi. fa. and make due return thereof to me according to law. Herein fail not. Given under my hand and seal, this the 20th day of Dec. 1SSS. [Signed] W. J. Stoy, T. C. [L. S.]” Indorsed upon the fi, fa. was the following entry of levy: “I have this day levied the within fi. fa. upon lot of land number 211 in the 14th district of said county, for state and county tax for the year 1888. January 30th, 1889. [Signed] S. M. Cox, Sheriff.” The plaintiff objected to the tax fi, fa. and entry of levy indorsed thereon being received in evidence because the tax fi, fa. was signed, “W. J. Stoy, T. C.,” when it was admitted in open court by the defendant that the tax collector in the year 1888 was W. J. Story; that the letters “T. C.” following the name of W. J. Stoy did not show that the execution was issued by the tax collector of the county. Objection was further made to the introduction of the fi. fa., on the ground that one of the defendant's witnesses had already testified that the execution was not signed and issued by the tax collector of Worth county, but was signed by witness at the request of the tax collector, plaintiff contending that the tax collector could not delegate any verbai authority to sign the execution, witness not testifying that he had been appointed to collect taxes in Worth county in 1888. It appeared that the tax collector was dead at the time of the trial. While the testimony did not directly establish that the tax collector's name was signed by the witness in the tax collector's presence, it does appear that it was done at the special instance and request of the tax collector at his house, and under such circumstances as might afford an inference that it was done in his presence. It is the duty of the tax collector to sign a tax execution. It is not essential, however, that he should actually do the manual act of signing his name in every instance. In Hitchcock v. Latham, 97 Ga. 253, 22 S. E. 907, objection was made to the introduction in evidence of an execution on the ground that the name thereto purporting to be that of the tax collector “was in printing as it came from the printing office,” and that, therefore, the execution did not bear the genuine signature of the tax collector, and there was nothing to show when, how, or where the name of the tax collector had been affixed to the execution. But this court held that the objection was not good where it affirma
tively appeared that the fl. fa. came into the sheriff's hands, who had acted upon it as a legal execution, and in so doing had levied upon, advertised, and sold land; that, in the absence of further proof on the subject, it will be presumed that the printed signature was authorized by the tax collector; and that he issued the execution as his official act. It appeared from the record in this case that the sheriff had acted upon this fl. fa., advertised the land levied on to satisfy it, and sold the land thereunder, and made a deed to the purchaser at the sale. As a general rule, when the law declares that a process shall be signed by a particular official, his name cannot be affixed to it by another, not in his presence, under a previous general authority. Biggers v. Winkles, 124 Ga. 990, 53 S. E. 397. However, we are not in opposition to this general proposition when we hold that the facts of this case bring it within the principle of the Hitchcock Case, supra. The misspelling of the tax collector's name of itself furnished no ground to hold the fl. fa. illegal. It is clear that if the tax collector, signing his name, had inadvertently omitted a letter, and the proof showed that he actually signed it, the signature would be valid. 3. Nor was the objection good that the letters “T. C.” following his signature were insufficient to show that he had signed the execution in his official character. Under the law existing at that time, such a fl. fa. Imust have been issued by the tax collector, and it is to be presumed that the abbreviation “T. C.” represents the officer's official character. 4, 5. The fi. fa. was further objected to, because it did not show on its face the necessary jurisdictional allegations that the taxes for the year 18SS were due and unpaid; that it did not show that the lot of land in question had not been returned and had been double taxed, as required by law; and that the tax collector had no authority under the law to issue a tax execution against unre. turned wild land, but that at that time such authority was in the tax receiver. We think the necessary jurisdictional facts appear on the face of the fi, fa. It is not to be presumed that the tax collector will issue a fl. fa. for taxes that have been paid. The fl. fa. recited that it was for state and county taxes for the year 18SS, and that the land had not been returned for taxes; and it issued for an amount alleged to be due against this part ticular land, which it is to be presumed was the proper amount. The tax collector, by virtue of the act of December 13, 1882 (Acts 1882, p. 47), in force at the time of the is: suance of this execution, had authority to issue the fi. fa. for unpaid taxes due upon unreturned wild land. 6. Objection was also made to the entry of levy appearing on the fi. fa. Prior to tendering the deed and fi. fa. in evidence, one of the witnesses for the defendant had test"
fied that the entry of levy on the fl. fa., although purporting to have been made and signed by S. M. Cox, sheriff, was not signed by S. M. Cox, but by another person; that for that reason it did not appear to be an official entry, because it had been shown that it was not made by the sheriff of the county, or by any one authorized by the sheriff. The testimony disclosed that the sheriff was dead when the case was tried, and that one W. J. Ford wrote the entry of levy and signed the sheriff's name to it. Ford did not hold any office. There also appeared the following entry upon the fl. fa.: “The within lot Of land number 211 in the 14th district, sold this day to J. A. Dixon, for one hundred and fifteen dollars, this 7th day of May, 1889. |Signed] S. M. Cox, Sheriff.” There was testimony that this entry of sale was in the handwriting of Cox, the sheriff. The statute declares that the officer making the levy shall enter the same on the process by virtue of which the levy is made. Civ, Code 1895, ; 5421. In order that the entry of levy may be authenticated as the official act of the Officer, it should be signed. Jones v. Easley, 53 Ga. 454. An entry of levy may be made and the levying officer's name signed thereto by a Scrivener, if done in the immediate presence and by the direction of the levying Officer. In such a case, notwithstanding the Officer's name may be signed by the scrivener, it will be upheld as the entry of the officer. Ellis v. Francis, 9 Ga. 325; Cox v. Montford, § Ga. 62; Weaver v. Wood, 103 Ga. 89, 29 S. E. 594. There is no evidence in the recOrd authorizing a conclusion that the entry of levy, and the signing of the sheriff's name thereto by Ford took place in the immediate presence of the sheriff. The undisputed evidence, however, discloses that the sheriff adVertised the land by virtue of this particular levy, personally cried the same at the sale, and made an entry of the sale on the fi. fa. There was also evidence by one of the subSoribing witnesses to the deed that he saw the sheriff sign the deed, and that he and the Other witness attested it as witnesses. This evidence authorizes an inference that the sheriff adopted, as his own act, the entry of levy made by Ford, and acted on it, caused the property to be advertised, sold it, and made a deed to the purchaser. Even if the entry of levy was not made in the immediate presence of the sheriff, he immediately ratitled it, and adopted it as his own act, when he advertised the property and sold it by Virtue of this particular levy. The adoption by the sheriff of the entry, relatively to a biller at the sale, made it the sheriff's own act and deed just as effectually as if Ford had signed it in his presence, or the sheriff himself had signed the entry. 7. Several of the grounds of the motion for *W trial complain that the court erroneously *tended the Civil Code of 1895, $ 3628, to
*ibrate a fi, fa, and entry of levy thereon,
When tendered in evidence along with the
sheriff's deed. This section provides that “a registered deed shall be admitted in any court in this State without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause, will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed.” Its provisions are applicable only to registered deeds. Hill v. Nisbet, 58 Ga. 586; Sibley v. Haslam, 75 Ga. 490; Holland v. Carter, 70 Ga. 139, 3 S. E. 690; Bentley v. McCall, 119 Ga. 530, 46 S. E. 645; Chatman v. Hodnett, 127 Ga. 360, 56 S. E. 439. It has been held that the proceeding is purely statutory, and is to be strictly construed, and will not be extended to a will. Smith v. Stone, 127 Ga. 485, 56 S. E. 640. It is limited to the one issue of genuineness of the deed, and there is no authority of law for drawing into the trial of that issue questions foreign to the factum of the execution of the deed. Roberts v. Roberts, 101 Ga. 768, 29 S. E. 271. The provisions of the Code section providing for a separate issue upon the affidavit of forgery cannot be extended to the genuineness of the execution or entry of levy thereon. It is true that a sheriff's deed, even though registered, is not admissible as a muniment of title without the fl. fa, under which the sale was made accompanies it, or its loss is shown. But the law does not require that the fi. fa. shall be recorded along with the deed before it will be admissible in evidence. The Civil Code of 1895, $ 3625, permits the record of the fi, fa. in connection with the deed, and provides that when this is done, and the fi, fa. is lost, a certified copy of the record of the fi. fa. is admissible in evidence. An attack on the fl. fa. or entry of levy, because it was not signed by the proper offi
cials and is therefore void, is directed against
the authority of the officer to make the sale. It is not a direct attack on the deed. The burden is upon him who is asserting that the official signature is not genuine to show that fact. The ruling of the trial court, that the Civil Code of 1895, $ 3628, was applicable to the tax f. fa. and the entry of levy, and that the burden was on the defendant to show their genuineness, and to explain any alteration that might appear in the levy, improperly cast a burden upon the defendant which the law does not place upon him. This error necessitates a new trial, inasmuch as we are unable to say that the jury were not influenced by this instruction in deciding the issues of fact respecting the validity of the different official entries. 8. The defendant complains, in his motion for a new trial, that the court erred in refusing to charge, though requested in writing so to do, that “the law presumes that an officer does his duty, and an entry made on an official document purporting to be an entry by the officer whose duty it is to make it is presuined to be the act of such officer, and such