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might be presented; but, as we construe it merely to give Wright the privilege to join his dam to the piers so long as the bridge is maintained, no such proposition is before us. We cannot, in light of the record, hold that the contract is contrary to public policy, for that the erection of the dam would tend to injure and impair the usefulness and safety of the bridge for public travel, because evidence was submitted on this issue, and the trial court found to the contrary. While we do not think that public policy would allow the county authorities to barter away the safety of the highway, still, in the nature of things, much must be left to the discretion of the local authorities in determining what will or what will not be safe. We hardly think that the mere fact that the public convenience might be slightly discommoded in times of freshets and unduly high water would be sufficient ground for declaring the contract void. The inconvenience must be substantial. Nor is the fact that the dam may cause it to be more expensive to maintain the bridge a reason for declaring the contract invalid. This feature relates to interest of the county in the bridge, as distinguished from that of the public; and as to such interest the county commissioners have the power to contract. This distinction is brought out in the case of Justices v. Plank Road Co., 9 Ga. 486, as follows: “The easement in a public road is a property, in equity, belonging to the county at whose expense it is constructed. It is subject to use by the public at large; hence, as I before have said, it appertains to the public. Yet this is not inconsistent with the idea of an equitable interest or property in the county. The public use may be considered as a limitation upon the property. The interest which a county has in a public highway springs equitably out of the fact that that county, and not the whole public, have paid the costs of construction. The right to lay out and open the road is derived from the inferior court, acting under the Legislature. The easement is a legislative grant. The people of the county make the grant available by the outlay which is necessary to open the road; and, so long as the grant is unrevoked, the road—that is, the easement—is an interest or property in the county. The inferior courts are the depositories of this property, as well as any other. It is their duty to protect it, as much so as to protect the courthouse, and, if it is violated, they have the right, as the agents or trustees of the county, to go into a court of equity for redress.” On this particular phase of the question the case of Hanbury v. Woodward Lumber Co., 98 Ga. 60, 26 S. E. 477, is squarely in point. Certain citizens residing in West End, Atlanta, attempted to enjoin the Woodward Lumber Company from laying, with the permission of the municipal authorities, a private railway track across a public street in

which the lumber company owned the fee: the contention being made that the track and the moving of cars thereon rendered the public use of the highway inconvenient and unsafe. The Supreme Court said: “To what extent the owner of the fee may appropriate to his own use those other incidental rights not conflicting with the public use is necessarily a matter resting primarily with the city authorities, and is referable to the broad discretionary powers conferred upon them in the conduct and management of the public ways. He may be permitted to lay gas and water pipes or drains under the roadway, and do many other acts for his own advantage, provided the use of the public is not impaired. Whether or not such uses could be enjoyed without prejudice to the public right is, as we have said, primarily a matter for the consideration of the city authorities, and, if they conceive that the proposed right of the abutting lot owner may be safely exercised without exposing to inconvenience or jeopardy the easement of the public, an injunction against the exercise of such right, at the suit of private citizens not owners of property abutting upon the portion of the street sought to be devoted to the particular private use, will not be granted. In respect to this matter the authorities represent the public, and their consent is a sufficient warrant for upholding the judgment that the entry of the owner of the fee was not per se wrongful. In the present case the parties sought to be enjoined were, the one a railroad company, the other a manufacturing company. They owned lots opposite each other and abutting on the street in question. The latter desired the construction of a spur track, so as to connect the two lots and thus give it connection with the other company's railroad. They each agreed to this, and the municipal authorities consented, by resolution declaring that the public would suffer no inconvenience from the construction of the proposed track. We think, inasmuch as the city authorities held only an easement to the extent of a right of way, that there was no abuse by them of their discretion in allowing the owners of the fee the uses of the street for the purposes above mentioned. It was a valuable right to the owner of the lot. Proper precautions were taken to protect the interests of the public, and there is no reason why he should have been deprived of that right. Of course, we cannot undertake to say that the proposed track may not hereafter, either because of the manner of its construction or the manner of its use, become a nuisance and subject to abatement as such. An increase in population or travel may bring about such a result. But under the present record we hold that in favor of the owner of the fee in the street the city authorities had the power to authorize a joint enjoyment of the property, and that their discretion was not abused when it was determined that the proposed

use by the owner of the fee was not incon of $5,000, on two policies of life insurance sistent with the exercise by the public of its which the insurance company had theretodominant right of way.”

fore issued on the life of her deceased husWe have been led into this lengthy discus band, M. J. C. Stegall, and in each of which sion of this case, not only by the able and she was named as the sole beneficiary. There earnest arguments which were presented pro was a general demurrer that no ca use of action and con, but also on account of the public was set out, and there were special demurcharacter of the interesting questions involv rers to the alleged infirmities in particular ed; and, after considering the matter in its paragraphs of the petition. As, however, we various phases, we hold that the contract is dispose of the case made by the petition on legal, and that the judgment rendered is cor its merits, under the general demurrer, adrect.

versely to the contention of the plaintiff in Judgment, on the main bill of exceptions, the court below, it is not necessary that the affirmed; cross-bill dismissed.

grounds of special demurrer shall be considered or passed on. So far as it is necessary to determine the legal questions in

volved, the case made by the petition will MUTUAL LIFE INS. CO. V. STEGALL. appear in the following statement, which is (No. 136.)

compiled from the petition and the exhibits (Court of Appeals of Georgia. April 20, 1907.) which were made a part thereof: On August 1. INSURANCE-TERM AND DURATION OF RISK 1, 1904, Martin J. Crawford Stegall made ap-LIFE POLICY.

plication to the Mutual Life Insurance ComA petition brought to recover on a policy

pany of New York for the issuance of two of life insurance, which shows, on its face and by its exhibits, that the policy was issued and

policies on his life, one for $3,000 and the bore date August 30, 1901, that the first premi other for $2,000, containing, among other um was paid, that the condition of liability to things, the clause: "Which [contract) I herepay the amount named in the policy was that

by agree to and accept, and which shall not annual premiums of a named amount should be paid in advance on August 30th in each year

take effect until the first premium shall have thereafter, that the insured did not accept the been paid during my continuance in good policy nor pay the first premium thereon until health and the policy shall bave been signed November 19, 1904, that no premium was thereafter paid, and that the insured died October 29,

by the secretary of the company and issued.” 1905, as against a general demurrer on that On this application the policies were issued, ground, sets out no cause of action.

duly executed, and bore date August 30, 2. SAME.

1904. The body of each of the policies conThe contention that, under a policy such

tains a promise to pay the plaintiff below, if as above described, payment of the first premium and acceptance of the policy November 19,

living, etc., $3,000 under one of said policies, 1904, had the effect of continuing the policy in $2.000 under the other, upon acceptance of force for one year from that date, is unsound satisfactory proofs of the death of Martin as a matter of law.

J. Crawford Stegall “during the continuance 3. SAME. A stipulation in a written application for

of this policy, upon the following condition, a policy of life insurance to the effect that the and subject to the provisions, requirements, contract to be issued thereunder shall not take and benefits stated on the back of this policy, effect until the first premium is paid is one for

which are hereby referred to and made a the benefit of the insurer; and when in response to such application the insurer accepts the same,

part hereof: The annual premium [stating and in due conrse issues a policy of which such the amount) shall be paid in advance on the application becomes a part, with conditions as delivery of this policy, and thereafter to the above set out, and the insured afterwards accepts the policy and pays the first premium thereon,

company at its head office in the city of New be must, in order to keep the policy in force,

York on the 30th day of August in every comply with its terms as to future payments of year during the continuance of this contract, premiums.

The receipt of the first payment of premium (Syllabus by the Court.)

hereon is acknowledged." Among the proError from City Court of Bainbridge; visions on the back of each policy is the folHarrell, Judge.

lowing: "Notice. No person, except 'an exAction by Mrs. Claude Stegall against Mu ecutive officer of the company or its secretary tual Life Insurance Company. Judgment for at the head office in New York, has the power plaintiff, and defendant brings error. Re on behalf of the company to make, modify, versed.

or alter this contract, to extend the time for James H. Gilbert and Pottle & Glessner,

paying a premium, to bind the company "by for plaintiff in error. A. E. Thornton and

making any promise or by accepting any repRussell & Hawes, for defendant in error.

resentation or information not contained in

the application for this contract." Touching LITTLEJOHN, J. The issues submit the payment of premiums on these policies, ted for our consideration were raised by

the petition alleges that “on November 19, the refusal of the trial judge to sustain cer 1904, petitioner's husband (M. J. C. Stegall, tain demurrers filed by the Mutual Life In

the insured) paid the premium on said surance Company to a petition which Mrs. policies to T. E. Morgan, defendant's agent, Claude Stegall filed in the city court of Bain

who received said application, by executing bridge, seeking a recovery, in the aggregate and delivering to said agent his two promis

sory notes, both dated November 19, 1904 [for the stipulated yearly premiums], said Martin J. Crawford Stegall being at the time in good health, said notes paying the premiums on said policies for one year from the date of their execution and delivery,” and that, “upon the execution and delivery of the said two notes, said policies of insurance were delivered to the said Martin J. Crawford Stegall, and from that date were effective.” The petition alleges, further, that on October 29, 1905, “during the continuance of said policies,” the plaintiff's husband, Martin J. Crawford Stegall, was shot and killed. The further allegations are made that proofs of death were duly made and that the insurance company denied its liability and refused to pay. In support of the judgment rendered in the court below, counsel for the defendant in error insist, as a matter of law, that notwithstanding the policies of insurance bear date August 30, 1904, and provide that the annual premium to continue the policies in force shall be paid on August 30th in each year, yet, as the policies provide that they shall not become effective until the payment of the first premium and the delivery of the policies thereunder, it follows that, inasmuch as the premiums were not paid on the policies nor those writings delivered until November 19, 1904, the policies became effective on that day; that the date in the policies, by consent of parties, was changed to the day of payment and delivery of the policies, and, the premiums paying for insurance by the year, such payment held the policies in force until November 19, 1905, and, the insured having died on October 29, 1905, the beneficiary, by her petition, shows a right of recovery. We find one fatal defect in this line of reasoning. It is not in accord with the letter or the spirit of the policies. To maintain the right of recovery under the allegations of the petition, life insurance must primarily be treated as a subject of bargain and sale. As such it is frequently referred to. Yet it is not a chattel. It is not merchandise. Its object bears no relation to ordinary instances of bargain and sale, where the purchaser parts with his money for its equivalent in a material thing of intrinsic value to him; and, if it be a subject of bargain and sale at all, it is only so in a qualified and limited sense. For ourselves we prefer to treat life insurance from the standpoint of our Civil Code of 1895 (section 2114), as a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of Inoney if another dies within the time limited by the policy. As a contract, all of its material terms and conditions must be observed and complied with, either to create a right or a liability. Not only is it a contract, but, to be a valid one, it must be in writing. Civ. Code 1895, §§ 2117, 2089. Hence the terms and conditions of it are fixed and easily ascertainable. A policy of life insur

ance (in this case at least) is not the whole contract. The insured made an application in writing for the two policies, which were issued. That and the policies issued constituted the contract. The contract on which the plaintiff sues, and only on the terms of which she, in any event, can recover, contains a broad stipulation in the shape of a notice that only an executive officer or its secretary at its head office in New York has the power to modify or alter the contract, or to extend the time of paying the premium, or to bind the company by making any promises. No allegation is made that any change of the kind indicated was had. Consequently the rights of the parties are to be fixed by the original written contract. This (and both parties to the suit are equally bound by it) makes a condition precedent to the liability to pay on the death of the insured that the annual premiums shall be paid in advance on delivery of the policy, and thereafter on the 30th day of August in every year during the continuance of the contract. Certainly the contemplation of the parties was that the policies for which the insured applied should have a date from which the insurance should commence. None was fixed in the application, except that the company was asked to issue the policies and the insured agreed to accept them when issued. The application was made on August 1st. Thirty days afterwards the policies were issued in New York, and bore date August 30, 1904, and carried insurance on the life of Stegall from that date, thus making the year of insurance end on August 30, 1905. It is true that the insured did not receive the policies until November 19, 1904, and it is equally true that the company was not bound, under the terms of the contract, until he had paid the premium and received the policies. He asked for the insurance on August 1st, and agreed to accept the policies and pay the premiums when issued. The company accepted his application and furnished the contracts on August 30th. He did not then receive them, but let them lie dormant until November 19th. He then paid for them, and accepted the policies as they stood, carrying insurance back from August 30th, and stipulating that, to keep the policies in force, the next annual premium must be paid August 30, 1905. He asked for no change. None was made. He knew what he received. His beneficiary stands to-day on the contracts containing these stipulations. Nothing can be clearer to our minds than that, on failure to pay the annual premiums provided for on August 30, 1905, the policies lapsed, and were not in force at the time of the death of the insured, October 29, 1905. Under our positive law in relation to life insurance, a policy runs from midday of the date of the policy, and the time must be estimated accordingly if a policy is limited to a specified number of years. Civ. Code 1805, § 2119. We were referred to a decision in the case

of Methvin v. Fidelity Mutual Life Insur Error from City Court of Savannah; Nor-
ance Association (Cal.) 58 Pac, 387, as an wood, Judge.
authority to sustain the judgment of the court Action by Rosenheim & Sons against the
below. That decision, however, was not final; Southern Railway Company. Judgment for
a rebearing being granted, on which the plaintiffs, and defendant brings error. Re-
three justices who in department had ren versed.
dered the decision joined with the other mem-
bers of the court in bank in a unanimous de-

Osborne & Lawrence and Edmund H. Abracision which is in full accord with what we

hams, for plaintiff in error. Garrard & Melnow decide. 129 Cal. 251, 61 Pac. 1112. In

drim, for defendants in error. that case the policy was dated July 30, 1895, and called for quarterly premiums beginning POWELL, J. 1. Rosenheim & Sons sued on that date, and provided that it should not the Southern Railway Company and recovered be binding until delivered and the first pre a verdict. The plaintiffs' declaration, omitmium paid, and on failure to pay any pre ting merely formal parts, is as follows: "(1) mium when due the policy should be “ipso That the Southern Railway is a railroad corfacto nul and void." The policy was not de poration, having an office and agent for the livered nor the first premium paid until Sep transaction of its usual and customary busitember 3d. The insured died after October

ness in the city of Savannah, county of Chat30, 1895, without paying the second quarterly ham, and state of Georgia. (2) That on the premium. The holding of the Supreme Court

6th day of February, 1905, the said defendof California is that the policy became void ant then was and still is a common carrier of prior to the death of the insured, since the

passengers for hire, and as such common car. second quarterly premium became due Octo

rier of passengers for hire had, on the 7th ber 30, 1895.

day of February, 1905, its depot at Waynesthat the

The court erred in overruling the general ville, in the state of North Carolina. (3) demurrer.

That on said 7th day of February, 1905, at Judgment reversed.

Waynesville, in the state of North Carolina,

in consideration that the plaintiffs would deJudge LITTLEJOHN, of the Southwestern

liver to the defendant certain goods of the circuit, Judge ROAN, of the Stone Moun

plaintiffs (more fully set out in an inventory tain circuit, and Judge HAMMOND, of the

hereunto annexed, marked 'Exhibit A') to be Augusta circuit, were designated to preside

by the defendant safely and securely kept ork, instead of the judges of this court, who were

and redelivered to the plaintiffs on request, disqualified.

the said defendant promised the plaintiffs safely and securely to keep the said goods and to redeliver the same to the plaintiffs on

request, and the plaintiffs delivered to the le SOUTHERN RY. CO. V. ROSENHEIM & SONS. (No. 301.)

defendant and the defendant received the

said goods for the purpose and on the terms (Court of Appeals of Georgia. May 9, 1907.)

aforesaid, and the plaintiffs afterwards, and 1. CARBIERS-LOSS OF BAGGAGE-ACTION DECLARATION.

within a reasonable time in that behalf, reA declaration against a railway company, quested the defendant to redeliver the same merely alleging the delivery of certain trunks to the plaintiffs, and all conditions were perand their contents into its custody and a fail

formed, and all things happened, and all ure to redeliver, but not alleging that the trunks were to be transported or carried as baggage or

times elapsed necessary to entitle the plainotherwise, does not set out a cause of action tiffs to have the said goods safely and secure

against the railway company as a carrier of ly kept and redelivered by the defendant to He toal- bazzage, but only as a warehouseman or a de

the plaintiffs as aforesaid; yet the defendant pository. 2. SAME-LOSS BY FIRE.

did not safely and securely keep the same and One who, having been a passenger, arrives redeliver the same to the plaintiffs as aforewith his baggage at destination, surrenders his said, whereby the said goods were wholly checks, opens up the trunks in the baggage room,

lost to the plaintiffs, to the damage of the and afterwards leaves the trunks in the baggage room by permission of the baggage clerk, upon a

plaintiffs in the sum of $491.02, besides interstatement that he will be going off again next

est.” Wherefore judgment is prayed, etc. day and will then recheck them, cannot hold

The plaintiff's contend that this declaration the railway company responsible as a carrier of baggage, for the destruction of the trunks by fire

sets out a case of liability against the defendduring the night.

ant for a breach of its duty as a common car(a) The transaction, if not merely a personal rier by the loss of a passenger's baggage, and one between the owner of the trunks and the bagzage clerk, charges the railway company with

insist that it is apt in form and substance for Do bigher responsibility than that of a depos

that purpose. The able and experienced at

torney who appeared for the plaintiffs in this {b} This is so notwithstanding the owner of court also claims that the declaration is subthe trunks may have been the holder of a mileage book, good for transportation on the rail

stantially in the form prescribed by Chitty. as company's trains.

We think it plain that it sets out no such (Ed. Note.-For cases in point, see Cent. Dig.

cause of action. It does not allege that the sol. 9, Carriers, $ 1543.]

goods were delivered for the purpose of being (Syllabus by the Court.)

carried by the defendant; and this is an es.

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58 S.E.-6

sential allegation of Chitty's form in such actions. Chitty on Pleadings, *356. The suit, as we are constrained to view the declaration, is merely for a breach of a contract of bailment.

2. The evidence was likewise insufficient to sustain a verdict holding defendant liable as for the loss of passenger's baggage. Adams was a traveling salesman for Rosenheim & Sons. He lived at Waynesville, N. C. He arrived there on the defendant's train, Sunday afternoon, February 5, 1905, and with him came bis trunks as baggage. The next morning he surrendered the checks, took charge of the trunks, opened them up in the depot, and sold a customer a bill of goods from the samples contained therein. He did not take the trunks away, but left them in the storage room of the depot, telling the agent, who also performed the duties of baggage clerk, that he would be going off again next morning to Addie, or to some other place west, and that he would leave them in the storage room over night and check them the next morning. The train next morning was due at 9:15 o'clock. That night the de pot was burned, and the trunks and their contents were thereby destroyed. Adams had a mileage book, good on the Southern Railway. The trunks and their contents belonged to Rosenheim & Sons. The court charged the jury that under these circumstances, if the agent consented to the trunks remaining in the depot overnight, the company would be liable, unless the fire was occasioned by act of God. At common law, as well as by the law of this state, no excuse avails a carrier for the loss of the baggage of one who sustains to it the relation of passenger, except act of God, irresistible accident, or destruction by public enemy. Civ. Code 1895, $ 2280; Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460. A similar rule prevails in North Carolina. See Revisal 1905, § 2624. For baggage in possession of the carrier, and not within the protection of the above rule, the liability of the carrier is that of a depository for hire (warehouseman), with the duty of only ordinary diligence, or that of a naked depository, with responsibility attaching only in a case of gross negligence, according to the circumstances of the case. Georgia R. Co. v. Thompson, 86 Ga. 328, 12 S. E. 610. See, also, Civ. Code 1895, 88 2921, 2922, 2928. We presume that the same rule prevails in North Carolina, as it is a matter of general law. If there has been no delivery to the carrier, but his agent, without authority, agrees to take care of the baggage as a matter of accommodation, the agent pro hac is the agent of the owner of the baggage, and not of the carrier, and no responsibility against the latter attaches to the transaction. Georgia R. Co. v. Thompson, supra. A baggage clerk has implied authority to receive baggage on behalf of the carrier only for a reasonable time prior to the departure of the train on which it is to be carried. Hutch.

Carr. (3d Ed.) & 1256; Lake Shore Ry. Co. v. Foster, 104 Ind. 315, 4 N, E. 20, 54 Am. Rep. 319.

From the instructions to the jury, appearing in the record, it is manifest that the trial court entertained the view that because Adams had a mileage book, good on the de fendant's lines of railway, he was entitled to the rights of a passenger as to these trunks and their contents. Let us see if any such relation was sustained: “The owner of the property must, of course, stand in relation of passenger to the carrier, in order to fix upon him liability as a carrier of baggage. The carriage of the baggage is ex vi termini incidental to the carriage of the owner as a passenger." Hutch. Carr. (3d Ed.) § 1274; Atlanta Terminal Co. v. American Baggage Co., 125 Ga. 677, 54 S. E. 711. "The passenger has the right to deliver his baggage to the carrier such time before the starting of the train upon which he intends to take passage as may be reasonably necessary for obtaining a ticket and checking the baggage. From the time delivery is thus made, the carrier will be responsible for its safety as a common carrier. If, however, an earlier delivery to the carrier be made, his custody will be that of a warehouseman only, unless he bas consented to hold it subject to his commonlaw liability. But the question as to when the carrier's liability as such with respect to baggage will begin will frequently depend upon his custom or manner of doing business at the particular station where it is received, and in order to impose upon the carrier the liability of an insurer of the baggage, it must be delivered to and accepted by an agent who is authorized to receive it, or delivery must be made under such circumstances that an acceptance by the carrier will be implied." Hutch. Carr. (30 Ed.) § 1281. The mere fact that one has a ticket, or that he has paid the price of transportation, or that he has made a contract of carriage, does not render him in all cases a passenger. He must have submitted himself to the carrier's protection and have imposed upon himself an obligation to the carrier for performance of his own side of the contract of carriage. “But so long as the party merely entertains the wish or intention, no obligation has arisen on either side, and he is at liberty to change that in. tention at any moment.” Hutch, Carr. (38 Ed.) § 1015; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521, and cases cited in the footnote; Central R. Co. v. Perry, 58 Ga, 461. In the Webster Case the person alleged to be a passenger had a 10-trip ticket, which establishes a similarity to this case, wherein Adams had a mileage book.

We think it manifest that Adams did not, under the facts stated, place or intend to place himself under the obligations of a passenger at the time he left the baggage in the depot. His intention to do so on the morrow did not place the carrier under the immediate

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