(105 S.E.) "When you have agreed upon your verdict, | debtor, and the wife is in the position of a let it be written upon the declaration in at- surety.' The above charge the court failed to tachment, dated signed by your foreman, and give the jury, although the same was basic, returned into court." fundamental, and controlling law of this case." Defendant's amended motion for new trial follows: -Statement by editor. Walter A. Sims, of Atlanta, for plaintiff in error. T. C. Waters and Jas. A. Miller, both of Atlanta, for defendant in error. "(1) That a new trial should be granted in said case, because the court charged the jury as follows: 'It would make no difference which party actually received the money; that is, into BROYLES, C. J. [2-4] The defendant was whose hands the money was delivered. The question you are to settle is whether it was sued on certain promissory notes which she borrowed for him, and him alone; if it was, and her husband jointly signed. There were she would not be liable; if borrowed for both no indications on the notes that the defendof them, their joint benefit, she would be lia- ant signed them as surety only, but she pleadble; if borrowed for her to carry on the board-ed that she signed them as surety for her husing house business herself, she would be liable; but the mere fact of the delivery of the money into his hands or hers would not make him or band, and that the contracts, under the law, were unenforceable against her. The eviher liable alone, but that question you would dence upon the trial amply authorized a unddetermine upon the propositions which I haveing that the money obtained upon the notes submitted to you, and as to which I have given you instructions.' The above charge was error, because the evidence disclosed that the money was sent to Harden, and that he had the money several days before the notes sued on were executed, and that it was his debt, since he had obtained the money, and the notes were executed and delivered for a pre-existing debt of the husband of the defendant. "(2) The court should have charged the jury that 'If the money was obtained by the husband on the joint credit of himself and wife, and applied to his own use, he is the real primary was borrowed by the defendant and her husband for their joint benefit and that she was liable therefor. The charge of the court was a full, fair, and correct presentation of the law of the case, and was not subject to any of the exceptions taken. dence, and the court did not err in refusing [1] The verdict was authorized by the evito grant a new trial. Judgment affirmed. LUKE and BLOODWORTH, JJ., concur. (26 Ga. App. 305) BLAKENEY v. FRANKLIN. (No. 11636.) (Court of Appeals of Georgia, Division No. 2. Feb. 15, 1921.) (Syllabus by the Court.) 1. Garnishment -Separate process and judgment required. Garnishment under the Georgia statutes, while ancillary to the main suit to the extent Franklin & Langdale, of Valdosta, for defendant in error. JENKINS, P. J. Judgment affirmed. STEPHENS and HILL, JJ., concur. 11451.) (26 Ga. App. 163) that judgment cannot be rendered against the HIGHT ACCESSORY PLACE v. LAM. (No. garnishee until after judgment against the main defendant has been obtained, is neverthe Jan. 25, 1921.) (Syllabus by Editorial Staff.) less in itself a distinct suit between the plain- (Court of Appeals of Georgia, Division No. 1. tiff and the garnishee, requiring separate and independent process and judgment. Dent v. Dent, 118 Ga. 853, 45 S. E. 680; Ahrens v. Patton Co., 94 Ga. 247, 250, 21 S. E. 523; Woods v. Mass. Mills, 17 Ga. App. 422, 87 S. E. 688; Lamb v. Whitman, 17 Ga. App. 687, 87 S. E. 1095; Jones v. Maril, 19 Ga. App. 216, 91 S. E. 445(1). 1. Bailment 31(1)-Burden of proof on bailee in case of loss of goods. holds it for hire, and in a suit by the bailor it When property is delivered to a bailee, who is pleaded that because of negligence of bailee property has been destroyed by fire, on proof of allegations of petition the onus, under Civ. Code 1910, § 3469, is placed on bailee of showing due care and diligence in protecting and keeping the property. 2. Trial 236(2)-Charge as to impeachment of witnesses by contradictory statements held proper. peached, if any one has in this case, his testimony may be disregarded altogether, but whether impeached, or, if impeached, whether corroborated, or what credit will be given to testimony, is matter for jury, held not error requiring a new trial. 3. Evidence Process of garnishment thus being a suit within the intent and meaning of sections 3166| and 3167 of the Civil Code of 1910, which provide for suit, entry of judgment, and issue of execution against partners "in their firm name" or "against a firm," and provide for a Charge that a witness may be impeached judgment against the firm binding all the firm by proof of contradictory statements, and that assets and the individual property of the part-when a witness has been so successfully imner served, and section 3190 of the Civil Code, further providing that the interest of a partner may be reached by process of garnishment served on the firm, a judgment against a named partnership composed of named individuals, in a garnishment proceeding so maintained, was good and binding not only as to the firm assets of the partnership, but as to the individual property of any partner who had been thus served, and an execution following the terms of such judgment was leviable on the individual property of such a partner. Hollister v. Bluthenthal, 9 Ga. App. 176, 70 S. E. 970 (1); Taylor v. Felder, 3 Ga. App. 106, 110, 59 s. E. 328; Page v. Citizens' Bkg. Co., 111 Ga. 73, 79, 36 S. E. 418, 51 L. R. A. 463, and notes, 78 Am. St. Rep. 144; Parler v. Johnson, 81 Ga. 254, 7 S. E. 317; Ells v. Bone, 71 Ga. 466, 469; Ferry v. Mattox, 2 Ga. App. 104, 58 S. E. 291; Griffin v. Colonial Bank, 7 Ga. App. 126, 66 S. E. 382; Loyd v. Hicks, 31 Ga. 140(3), 142. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Suit.] Error from City Court of Valdosta; J. G. Cranford, Judge. Garnishment proceeding between R. Blakeney and O. W. Franklin. Judgment for Franklin, and Blakeney brings error. Affirmed. 471(19)-Testimony that automobile was a complete car held not a conclusion. fire caused by negligence of garage keeper, In action for destruction of automobile by plaintiff's testimony that automobile was a complete car, and it was all right in every way, held not inadmissible as a conclusion. 4. Evidence 158(17)-Ordinance held best evidence as to whether automobile could be repaired on street. In action against garage keeper for destruction of automobile by fire, question to plaintiff as to whether he did not know that garage men are forbidden by ordinance to work on a car out in the street held improper; the ordinance being the best evidence. 5. Bailment 31(2)—Evidence as to how vulcanizer was regarded in automobile business held properly ruled out. In action against garage keeper for destruction of automobile by fire, starting when material in vulcanizer caught fire, question to witness as to how that kind of vulcanizer was regarded in the automobile business was prop Whitaker & Dukes, of Valdosta, for plain- erly disallowed; the witness having testified tiff in error. that there was no superior vulcanizer made. (105 S.E.) 6. Bailment 31 (2)-Whether vulcanizer was left unattended by custom held inadmissible. In action against garage keeper for destruction of automobile by fire, starting when materials in vulcanizer caught fire, ruling on question to witness as to whether it was customary to leave vulcanizer unattended when fixed, that the custom should be left out, held not erroneous. necessarily have to take plaintiff's car into its garage to make the repairs. Fifth. Because the court erred in refusing to allow Gordon Hight, a witness for the defendant, to testify as to how the vulcanizer, being used by the defendant at the time the fire originated, was regarded by those in the automobile business, as to safety from fires, etc. This colloquy. took place: Counsel for defendant, examining the witness for defend 7. Bailment 31 (2)-Testimony as to cause ant, Mr. Hight: "How long have you been of fire generally held inadmissible. studying electricity and things of that kind? A. About fifteen years. Q. In your experience and investigation, Mr. Hight, do you know of any kind of vulcanizer superior to this, in as far as safety from fire is concerned, or otherwise? A. No, sir; this is the best made. Q. How is it generally regarded in the automobile business?" Mr. Eubanks (of counsel for plaintiff): "We object to that question as being incompetent." Court: "I think the first question answers everything about that; leave out that last question." Movant insists that the plaintiff, in his petition, alleged negligence against the defendant on account of fire caught from this vulcanizer, and on account of the operation of this vulcanizer, and that it was material to show that this vulcanizer was the latest and best improved known to the defendant, and was also regarded as such by others engaged in automobile business. Sixth. Because the court erred in refusing to allow the witness Golden Stephens, testifying in behalf of defendant, to answer the following question propounded by defendant's counsel, to wit: "Is it customary to leave those things when you have them in shape?" To which question plaintiff's counsel interposed the following objection: "We object to what Error from City Court of Floyd County; is customary, but what was done in this case." Moses Wright, Judge. Action by O. C. Lam against the Hight Accessory Place. Judgment for plaintiff, and defendant brings error. Affirmed. Plaintiff sued to recover $1,750 in damages for destruction of his automobile while in defendant's place of business for repairs. The assignments of error on the admission or rejection of evidence were as follows: Third. Because the court erred in permitting the plaintiff, O. C. Lam, to testify as follows, to wit: "It was a complete car. It was all right in every way"-the objection being that said answer was and could be nothing more than a conclusion of the witness. To which the court answered: "Leave out the custom about that." The witness had just explained that, in using the vulcanizer concerning which he was testifying, he adjusted the casing to be vulcanized and left it there to cook, and there was nothing else to do until the same did cook, in the time estimated at about seven minutes, and the purpose of the question was to show what was the custom as to leaving the vulcanizer unattended while this cooking process was taking place. Movant insists that this evidence was very material, in that the allegations in the petition set out negligence on the part of defendant in leaving this vulcanizer while this process was taking place, and the evidence showed that at the time the fire originated this witness, who was the agent of the defendant company, doing this work, had left this vulcanizer unattended, and movant insists it was material to show that this was not out of the ordinary or uncustomary. Fourth. Because the court erred in refusing to allow the witness O. C. Lam to answer the following question, propounded by the defendant's counsel, to wit: "Don't you know the garage men are prohibited by city ordi- Seventh. Because the court erred in refusnance, and were at that time, from doing any ing to allow the witness Geo. Watts, testifying, work on a car out in the street?"-the court in behalf of the defendant, to answer the folrejecting the evidence on objection that ordi- lowing question, to wit: "Is it not true that in nance was best evidence. Movant insists that a large number of instances it is impossible to the question did not ask for or seek to prove find the cause or the origin of those fires?" the contents of any city ordinance, but was in- The witness George Watts had disclosed in tended and sought to elicit from the plaintiff his testimony that he was an insurance agent, the fact that he had knowledge that garage and accustomed to the investigation of fires and men were not permitted by city ordinance to their causes, and was present in the garage at do repair work on automobiles in the streets the time this fire originated. These facts had of the city, and therefore defendant would [been developed from this witness by cross-ex amination on the part of plaintiff's counsel, and it was error for the court to refuse to allow the witness to state whether or not the origin of fires was impossible to determine; especially is this true in view of the fact that plaintiff's petition alleged this first as the cause of damage to plaintiff's automobile, and that the cause and origin of the fire was the certain alleged acts of negligence on the part of defendant, and the testimony on the part of the defendant showed that the acts of negligence complained of in the petition were not the cause of the fire, and that the origin and the cause of the fire was unknown, and it had been impossible to ascertain the cause and the origin of the fire. Eighth. Because the court erred in permitting the witness Albert Sharp to answer, upon cross-examination by plaintiff's counsel, the following question: "Placing the vulcanizing department of the garage right against the elevator shaft is placing it at the most dangerous To point for the communication of fire?" which defendant's counsel interposed the fol lowing objection: "I object to that question, as both incompetent and seeking a conclusion of the witness." To which the court replied: "Go on." M. B. Eubanks, W. B. Mebane, and C. H. Porter, all of Rome, for defendant in error. LUKE, J., [1] 1. In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence. Civil Code (1910) § 3469. Therefore, where property is delivered to a bailee, who holds it for hire, and in a suit by the bailor it is pleaded that because of the negligence of the bailee the property so delivered has been destroyed by fire, upon proof of the allega. tions laid in the petition the onus is placed upon the bailee of showing that he exercised due care and diligence in protecting and keeping the property. McDonald v. Hardee, 22 Ga. App. 96, 95 S. E. 320, and cases cited; Morris Storage & Transfer Co. v. Wilkes, 1 Ga. App. 751, 58 S. E. 232; Park v. Swann, 20 Ga. App. 39, 92 S. E. 398. The charge of the court as complained of in the first ground of the amendment to the motion for a new trial, when the charge as a whole upon the subject is read, was not error. [2] 2. There is no error, requiring a new trial, because of the charge of the court upon the subject of impeachment. See ScogThe court charged as to impeachment of gins v. State, 23 Ga App. 366, 98 S. E. 240. witnesses: "I charge you that a witness may be impeached by proof of contradictory statements previously made. When a witness has been so successfully impeached, if any one has in this case, you would be authorized to disregard his testimony altogether; but whether one has been so successfully impeached, or, if impeached, whether he has been corroborated or not or what credit you will give to the testimony of that witness, is all a matter for the jury to determine, under the instructions from the court." -Statement by editor. C. N. Featherston, and Maddox & Doyal, all of Rome, for plaintiff in error. [3-8] 3. All the assignments of error upon the rulings on the questions of admitting or refusing to admit evidence have been examined, and no error is found. [9] 4. The question of negligence, as pleaded in this case by the plaintiff, and the issue of diligence, as pleaded by the defendant, were fully and fairly submitted to the jury, who determined the issues in favor of the plaintiff. There was evidence to authorize the verdict, which has the approval of the trial judge. For no reason assigned was it error to overrule the motion for a new trial. Judgment affirmed. BROYLES, C. J., and BLOODWORTH, J., concur. (181 N. C. 475) (105 S.E.) BECTON v. GOODMAN (No. 170.) (Supreme Court of North Carolina. Feb. 23, 1921.) 6. Boundaries 35(1)-Testimony as to location of line actually laid down by surveyor admissible. In a proceeding to determine a boundary line, the court properly permitted defendant to ask a witness, a commissioner in a division I. Witnesses 252-Question directing wit-al proceeding, and permitted the witness to ness to compare map with his others properly excluded. answer over plaintiff's objection a question as In a proceeding to determine a boundary line, the court properly sustained defendant's objection to question to a witness, directing him to compare a map with his others and a blueprint, though plaintiff stated he proposed to show by the witness the map on record was In a proceeding to determine a boundary a correct copy of the map in the original pro-line, the court properly permitted a witness to ceedings. be asked, over plaintiff's objection, the question, Up to the time that lots 5 and 6 got into the ownership of the same parties, how did the owners on both sides work in reference to the line in controversy? 2. Witnesses 252-Question, directing witness to compare plot with description of lot, properly excluded. 8. Boundaries 35(1)-Testimony that witness knew where surveyor located line admissible. In a proceeding to determine a boundary line, the court properly sustained defendant's objection to a question directing a witness to compare the plot of an original partition proceeding with the description of a lot, and to In a proceeding to determine a boundary tell the jury if by such original plot in the par-line, the court did not err in permitting a wittition proceeding the beginning corner of the lot was shown as contended for by plaintiff; plaintiff stating that he desired to show by the witness that the beginning corner of the lot was on the right side of the lot as contended for by him. 3. Boundaries 35(3)-Testimony of surveyor as to locating line as originally surveyed properly admitted. In a proceeding to determine a boundary line, the court properly permitted a witness to be asked and to answer, over plaintiff's objection and exception, the question whether he, as a surveyor and complying with law, when he went to locate a line or corner had to begin and run it as it was originally surveyed. 4. Boundaries 35 (3)-Testimony of surveyor as to what effect on location his moving back to certain lot would have if he reversed on others properly admitted. In proceedings to determine a boundary line, the court properly permitted a surveyor as a witness to be asked and to answer over plaintiff's objection whether if he moved back to lot 6 what effect would that have on the location if he reversed on 1, 2, and 3; the answer being that it would put them all out of joint. ness, a divisional commissioner, to be asked over plaintiff's exception the question if he knew where the surveyor located the line between lots 5 and 6; the answer being in the affirmative. 35(4)-Testimony 9. Boundaries In a proceeding to determine a boundary line, the court did not err in permitting a witness to be asked and to answer over plaintiff's objection the question, with reference to a given matter, Where did the owners of a lot farm? the answer being that there was a pine thicket where the line went through, etc. Book E, page 578, showing the original division The plaintiff introduced Special Proceeding proceedings and the map thereto attached, a photograph of same being hereto attached, marked "Exhibit A." This proceeding described and referred to the plat the description of each lot, and so designated same on the plat lot 1, beginning at the northwestern extremity of the line on the south side of lots 1, 4, 5 and part of 6. Lot 4 contains 85 acres more or less; lot 5 contains 90 acres more or less; lot 6 con |