[2] In our opinion the advertisement in the instant case was legal, for the following reason: There is no provision of law authorizing two newspapers having a general circu- | properly inserted in the official organ of the lation in a county to be jointly designated as the official medium for its legal advertisements. By reference to sections 6065 and 6065(a), Park's Ann. Code, it will be noticed that nowhere is any reference made to the selection of more than one newspaper as the official organ for advertisements.

(21 Ga. App. 324)

LOUISVILLE & N. R. CO. v. ROGERS.

(No. 8993.)

occurrence, she had a miscarriage, which she claims was the result of the injury; and that since then she has continued to suffer

(Court of Appeals of Georgia, Division No. 2. pain and her health has been bad. There

295(6) — INSTRUCTIONS WHOLE-INJURY TO PASSENGER. The excerpts from the charge of the court complained of, when considered in connection with the general charge, are not erroneous for any of the reasons assigned.

2. TRIAL 29 (2) CONDUCT Of Court STATEMENT OF OPINION.

It is not reversible error, under section 4863 of the Civil Code of 1910, for the judge, in discussing with counsel the admissibility of testimony or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented, or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony. 3. APPEAL AND Error

AL-DISTURBANCE.

1005(3)-NEW TRI

The evidence authorized both the finding of the jury and the amount of their verdict, and the trial judge did not err in refusing a new trial.

Error from Superior Court, Murray County; Moses Wright, Judge.

Action by Mrs. Amos Rogers against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Mrs. Rogers brought suit against the railroad company for personal injuries, alleging, that in alighting from the defendant's train she was injured by the negligence of its agents; that when she started to get off the train she had a child in her arms, and that no stool was placed for her upon which to step; that the bottom step was some distance from the ground; and that as she started to step off, the train suddenly started forward, causing her to step, or fall, with considerable force to the ground. Her testimony supported, in the main, the allegations of the petition. It showed that she was a passenger on the train of defendant company; that when the train stopped at the station she started to get off, carrying a small child in her arms; that no stool was placed for her to step upon in getting down; that the flagman was on the bottom step, and did not give her any assistance; that as she started to alight the signal was given for the train to start, and that it suddenly started as she was alighting, causing her to fall or step with considerable force to the ground with the child in her arms; that she was pregnant at the time, and had been so for 4 or 42 months; that the sudden step and the force with which she came down to the ground injured her; that "wasting" set in, her health went down, she had suffered pain, and finally, about 3 months after the

was considerable testimony tending to support her claim that she had been hurt by this occurrence, and that her health had suf. fered thereby. The testimony of the defend. ant's witnesses contradicted that of the plaintiff, and tended to show that no such occurrence as she detailed actually occurred. While the employés of the train did not remember the plaintiff being there on the occasion alleged, they testified as to their custom in assisting passengers from the train. Other testimony was offered in an effort to show that the injury did not happen as the plaintiff had testified, that she had not been injured, and that her health was good, etc. The jury found for the plaintifi $2,500. The court overruled a motion for a new trial, and defendant excepted.

Tye, Peeples & Tye, of Atlanta, C. N. King, of Chatsworth, and D. W. Blair, of Marietta, for plaintiff in error. J. J. Bates, of Chatsworth, W. E. Mann, of Dalton, and R. A. Hendricks, of Nashville, for defendant in

error.

HARWELL, J. [1] 1. In the first four grounds of the amended motion for a new trial certain excerpts from the charge of the court to the jury are complained of. In the first, error is assigned upon an instruction on the subject of damages for pain and suffering, upon the ground that it was an expression of opinion by the court that the plaintiff was entitled to prevail. By examination of the charge it will be seen that in the preceding sentence the trial judge had instructed the jury that:

"If you find the defendant is, liable, then you will look and see what amount of pain and suffering plaintiff has endured," etc.

When taken in connection with the charge in immediate connection therewith, it was not error for the reason complained of.

The second and third grounds complain of certain charges instructing the jury upon the duty which the defendant owed the plaintiff, and whether or not the defendant exercised toward the plaintiff that degree of care, namely, extraordinary diligence, upon the ground that it assumed that the plaintiff was a passenger upon defendant company's train. When these charges are taken in connection with the entire charge of the court, it can readily be seen that this criticism is not well taken, as the court submitted to the jury the question whether or not the plaintiff was a passenger on the defendant's train.

In the fourth ground the charge of the court on the credibility of the witnesses and the weight to be given to the testimony is alleged to be error, in that the court told the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

jury that "if you see fit to do so, you may, clusion and inadmissible. It is not reversible take into consideration their manner and error, under section 4863 of the Civil Code. demeanor upon the stand, their interest or their want of interest, the opportunity they may have to know the facts about which they testify," etc., upon the ground that the instruction was not given to the jury as a rule governing them in arriving at the truth, but allowed them, "if they saw fit," to consider the instruction the court was giving them. By reference to section 5732 of the Civil Code of 1910, it will be seen that this criticism is not well taken, as it is there said:

"In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case," etc.

After all, it is for the jury to say what weight they will give to these matters in determining the credibility of witnesses.

[2] 2. In the fifth ground of the amended motion it is said that the following question was asked by counsel for the defendant company of the conductor, and that the following statements by the court were made:

"Q. Was that the way she was landed at Ramhurst, or not?"

Counsel for the plaintiff objected upon the ground that the question was leading; whereupon the court said:

"I understand this witness doesn't know anything about this lady being on the train. "Counsel for the defendant: That's what he

says.

"By the Court: He can't say that's the way she was landed at Ramhurst. I think it very clear without all this twisting around, with 400 questions, that all this witness knows is that nothing out of the ordinary happened when he stopped there at Ramhurst, and why in the world we want to take this roundabout way, and take an hour at it, I don't understand."

Movant assigns error upon this statement of the court, made in the presence of the jury, upon the ground that it was calculated to discredit the testimony of the defendant's conductor. We cannot take this view of it. The conductor, when on the stand, had tes

for the judge, in discussing with counsel the admissibility of testimony, to refer to the evidence or to the statements of witnesses, provided he does not get out of the line of legitimate discussion upon the point presented, or use such language as to indicate apparent or actual judicial approval. or disparagement, of any witness or any part of the testimony. Realty Co. v. Ellis, 4 Ga. App. 402, 61 S. E. 832 (6); Jones v. Pope, 7 Ga. App. 538, 540, 67 S. E. 280; Chattahoochee Valley Ry. Co. v. Bass, 9 Ga. App. 83, 70 S. E. 683 (7). "Observations of the court to counsel in the hearing of the jury during the progress of the trial, though open to criticism, if of but slight importance and only possibly, not probably, injurious, will not work a new trial." Chattanooga, etc., R. R. Co. v. Palmer, 89 Ga. 161, 15 S. E. 34 (3). The statement by the court that a witness said a certain thing is not, in a legal sense, an expression of opinion as to the evidence. What is sworn is testimony; what is the truth deduced therefrom is evidence. Williams v. Hart, 65 Ga. 202 (5); Barnes v. State, 89 Ga. 316, 15 S. E. 313. We do not think that the statement of the trial judge discredited the testimony of the conductor, and if subject to criticism, it did not constitute such harmful error as will require the grant of a new trial. Moreover, it has been held that:

"Prejudicial remarks made by the court in the hearing of the jury furnish no ground for a new trial, but in such a case a motion to declare a mistrial should be made, and upon the judge's refusal to grant this motion his ruling would be subject to review." Stapleton v. State, 19 Ga. App. 36, 90 S. E. 1029 (13), and cases cited; Wilcox v. State, 19 Ga. App. 83, 90 S. E. 1032 (4).

[3] 3. While the evidence was conflicting, the jury passed upon it, and the trial judge approved the verdict; and this court will not interfere. We think the evidence authorized the verdict, and cannot say that the amount of the verdict is excessive, as is contended by the plaintiff in error. Judgment affirmed.

BROYLES, P. J., and BLOODWORTH, J.,

concur.

(21 Ga. App. 246)

LOTT v. BANKS.

BANKS v. LOTT.

The trial judge, therefore, in replying to counsel for defendant company, was simply reciting the previous testimony of the witness. This witness, according to his testimony, did not remember the fact that Mrs. Rogers was on the train or that she got (Court of Appeals of Georgia, Division No. 1.

It

(Nos. 8467, 8468.)

Nov. 13, 1917.)
(Syllabus by the Court.)

off, and could only say what happened from the custom and rules of the company. was not error for the court to call attention to that fact, in ruling on the admissibility 1. APPEAL AND ERROR 222-EVIDENCE of the question. If the witness had been 82-REVIEW-QUESTIONS PRESENTED. permitted to answer the question, and had Since the act of the General Assembly apsaid that "she was landed that way at Ram-3), where the judge finally passed on the merits proved August 21, 1911 (Acts 1911, p. 149, § hurst," it would have clearly been a con- of a motion for a new trial and the parties ac

quiesced in his entertaining it at that time, without any question being then raised as to the sufficiency of the filing and approval of the grounds of such motion, no question as to these matters can be subsequently entertained by this court, and therefore the motion of defendant in error to strike the order of the lower court approving and certifying the amended motion for new trial, and to dismiss the amended motion is without merit. But, apart from the provisions of the act cited, it has been held that when the judge is not put on his guard to see that dates are correct, or to explain them if incorrect, there is a stronger presumption that a mistake was made in dating a judicial act, than that the act was performed on Sunday. Swindle v. Poore, 59 Ga. 337 (2).

2. PAYMENT 60(1)--PLEA-SUFFICIENCY.

The amended plea, setting up payment, was sufficiently exact, in that it did not fail to show when, how, and to whom the alleged payment was made.

3. EVIDENCE 241(1) AGENT.

DECLARATIONS OF

The declaration of an agent is not competent evidence against his principal, where it does not appear that such declaration was made while engaged in the business of the master or principal.

4. SALES 479(8)-CONDITIONAL SALES-ACTIONS-DIRECTION OF VERDICT.

Where, in a trover suit brought by the vendor under a conditional sale, the plaintiff elects to take a judgment within the amount of the indebtedness for the highest proved value of the property between the time of the conversion and trial, it is error to direct a verdict for plaintiff where under the evidence the value of the prop

erty in any lesser amount could be found.

Error from City Court of Hall County; A. C. Wheeler, Judge.

Action between W. N. Lott and R. Banks. There was a judgment for the latter, and the former brings error, and the latter assigns cross-errors. Reversed on main bill of exceptions, and affirmed on cross-bill.

[3] 3. The seventh ground of the amended motion complains that evidence of the witness I. J. Little was excluded, in which it was proposed to show by him that Maness, the agent of plaintiff, had told him that the cow was paid for. The declarations of an agent are properly admissible against his principal only when made concerning his appointed business and while he is SO engaged. The declaration of an agent is not competent evidence against his principal where it does not appear when it was made. Thus, were it to be conceded that the evidence shows that the declaration of Maness

pertained to the business within the scope of his authority, there being nothing in the exception taken to indicate when the declaration was made, there was no error in excluding the offered testimony. Adams v. Humphreys, 54 Ga. 496; Civil Code 1910, § 3606.

[4] 4. Where the title of a plaintiff in a trover suit is held by him as security for purchase money or other debt, and he elects to take a money verdict, he is entitled to recover either the highest value of the property between the date of the conversion and the date of the trial, without interest or hire, or the value of the property at the date of the conversion, with interest or hire, subject, however, to the condition that under neither choice can he recover more than the amount of the debt for which the property stands as security. Elder v. Woodruff Hardware Co., 9 Ga. App. 484, 71 S. E. 806; Tuller v. Carter, 59 Ga. 395 (2); Mashburn & Co. v. Dannenberg Co., 117 Ga. 567, 44 S. E. 97 (15); O'Neill Manufacturing Co. v. Woodley, 118 Ga. 114, 44 S. E. 980; Young v. Durham, 15 Ga. App. 678, 84 S. E. 165; Moore V. Furstenwerth-Uhl Jewelry Co, 17 Ga. App. 669, 87 S. E. 1097. Where the suit is not necessary to prove value, even though it for the property, and not for its value, it is be alleged. White v. White, 71 Ga. 670. But, to authorize a money verdict in a trover [2] 2. This was an action in trover by a suit, there must ordinarily be some evidence vendor of personal property under a record- to show the value of the personal property ed contract of conditional sale, and against a converted by the defendant. Brooke v. Lowe, subsequent purchaser. The defendant set 122 Ga. 358, 50 S. E. 146; Citizens' Bank up, by amendment to his answer, that the. Shaw, 132 Ga. 771, 777, 65 S. E. 81; original vendee had fully discharged the in- Oglesby v. Hanson, 7 Ga. App. 318, 66 S. E. debtedness to plaintiff. We think the amended plea was sufficiently exact to meet the objection of plaintiff to its allowance, as contained in his exceptions taken pendente lite and now embodied in his cross-bill of ex

W. M. Oliver and Wm. M. Johnson, both of Gainesville, for plaintiff in error. E. D. Kenyon, of Gainesville, for defendant in error.

JENKINS, J. [1] 1. The ruling made in the first headnote does not seem to require

elaboration.

ceptions, and that it did not fail to show when, how, and to whom the alleged payment was made. Thomas v. Siesel, 2 Ga. App. 663, 58 S. E. 1131 (5). As the case will have to be submitted to a jury for its deter mination on the facts, we will not express any opinion here as to whether the averments so made were substantiated, or as to whether the fact of agency involved was proved.

802.

In this case the plaintiff elected to take a money verdict, and the judgment was taken in accordance with what the able trial judge regarded as the prima facie and undisputed proved value of the property between the time of the conversion and trial and

within the amount of the debt. There was

no direct and express evidence showing the value of the property at the date of the conversion, or at any time subsequent thereto up to the date of the trial. The only evidence as to the value of the property dis closed by the evidence was, first, the amount

for to another and different person was not in any way conclusive evidence of value as between the plaintiff and defendant in this case, the jury would not have been absolutely bound by the amount so shown, but would have been entitled to exercise their own judgment in determining this question, with the right to consider the nature of the property involved, together with every other fact and attendant circumstance throwing light upon the subject properly within their knowledge. For this reason we think the question as to value should have been submitted to them. See Johnson v. Stevens, 19 Ga. App. 192, 91 S. E. 220, and the cases therein cited.

Moreover, in this particular case, we think that there is in fact other evidence upon the specific question of value itself which the jury would have had the right to consider.

of the original purchase price as shown by the note, amounting to $50.50; second, the evidence shows that the original vendee, Saddler, sold the cow to the defendant for $16; third, it appears that the defendant subsequently bargained the cow to another party, Morris, for $26.50, and later took her back at the same price. The plaintiff contends that since the latter amount, as fixed by the defendant himself, states the only value arrived at between the date of the conversion and the trial, this was the only value which could have been found by the jury, and as the directed verdict for the amount due on the note was within this amount, it was legal. Defendant contends, since no witness testified as to the value, and since the only evidence going to show the value consisted of proof as to the price in the sales testified to, that evidence is entirely lacking in the required proof of value. His conten-There was evidence tending to establish the tion is that what property may be sold for is not evidence of its market value. It has been held a number of times by this court that, as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie, but not conclusive, evidence of the actual value of the property, and that upon proof of the contract, in the absence of other rebutting testimony as to value, the plaintiff was entitled to recover the balance due thereon. See Elder v. Woodruff Hardware Co., 9 Ga. App. 486, 71 S. E. 806; Young v. Durham, 15 Ga. App. 678, 84 S. E. 165; Jordan v. Jenkins, 17 Ga. App. 58, 86 S. E. 278; Moore v. Furstenwerth-Uhl Jewelry Co., 17 Ga. App. 669, 87 S. E. 1097; Elder v. Woodruff Hardware Co., 16 Ga. App. 255, 82 S. E. 268. But, as was said in the decision last cited:

"As between the seller and third persons, the amount stated in the contract of purchase is of no such evidentiary value."

are:

Thus, in the instant case, the questions First, would the evidence, if in no wise contradicted, that the defendant, while in possession of the property, sold same at a named price, and afterwards took it back at the same price, furnish sufficient ground as to value to authorize the directing of a verdict within that amount? and, second, if this be true, was there in fact other evidence on this question which the jury might properly have considered? As a general proposition, evidence as to the selling price of an article is a circumstance, though not conclusive, upon the question of value. Southern Railway Co. v. Williams, 113 Ga. 335, 38 S. E. 744; Watson & Powers v. Loughran, 112 Ga. 837, 38 S. E. 82. Thus, assuming that this evidence was sufficient upon which a verdict might have been based, still, since the evidence of what the defendant may have succeeded in bargaining the property

value at the time of the conversion, as shown by the purchase price paid for the property by defendant. The property involved is not such as could be called a fluctuating commodity. Does evidence as to its value at the time of the conversion illustrate to any extent its true highest subsequent value up to the time of the trial? In other words, must evidence as to its initial value at the time of conversion be excluded, in determining its highest value throughout the entire period, for the reason that a distinct measure of damages obtains when the plaintiff relies solely on the proven value at the time of conversion? We can see no reason why this should be true, and we think that, in determining the highest value of property of this kind, the jury might well have considered the evidence as to value at

the time of conversion, as well as the evidence relating to a subsequent date, in arriving at what the highest value during the entire period really was. "The phrase 'the highest proved value between the conversion and the trial' does not mean the highest estimate given by any witness as to the value during the period stated, but means the highest value which the jury, from consideration of all the proof, finds that the property was worth at any time during that period, if during the period there was a change in its value." When one thus elects to claim the highest proved value, he is simply not limited to the value shown at the time of conversion; neither, in a case of this sort, should proof of value at that time, if in evidence, be excluded from the jury in determining what the highest value during the entire period really was. Barnett & Co. v. Thompson, 37 Ga. 335, 340.

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

WADE, C. J., and LUKE, J., concur.