2. SAME SUFFICIENCY OF EVIDENCE.

The evidence authorized the verdict, and there was no error in overruling the certiorari. (Syllabus by the Court.)

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

Action between W. C. Thompson and M. T. Duckworth. From the judgment, Thompson brings error. Affirmed.

George & Anderson, for plaintiff in error. Williford & Middlebrooks, for defendant in

error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

(127 Ga. 246)

MCEWEN v. CENTRAL OF GEORGIA RY. CO.

(Supreme Court of Georgia. Dec. 13, 1906.) MASTER AND SERVANT-INJURY TO SERVANTEVIDENCE.

The plaintiff claimed damages resulting from the derailment of a hand car; the derailment being brought about by a tool falling from the car to the track. If the tool was upon the car in an improper position, this fact was apparent to the plaintiff, who was riding thereon, and who had helped load the same. Under these conditions there could be no recovery by him resulting from the improper loading of the car. On the other hand, if the tool was properly loaded, and nevertheless fell from the car, the occurrence was a pure accident, a thing entirely unexpected and not to be anticipated in the usual course of events, and could not be the foundation for an action against the company. Freyermuth v. South Bound Railroad Co., 32 S. E. 668, 107 Ga. 31; B. & W. R. Co. v. Smith, 25 S. E. 759, 97 Ga. 777.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34. Master and Servant, §§ 163, 574-600, 610-624.]

(Syllabus by the Court.)

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

Action by F. E. McEwen against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Seaborn & Barry Wright, for plaintiff in error. J. B. Branham, for defendant in error.

three witnesses. Attached to the will was the following certificate: "Georgia, Bartow County: I, G. W. Hendricks, ordinary in and for said county, hereby certify that the paper to which this certificate is attached is a full, true, and correct copy of the last will and testament of Charlotte Young, Col'd; that the original will of the said Charlotte Young, col'd, was duly probated, proven, and admitted to record, Nov. 2, 1885, in common form, as appears of record in the ordinary's office of said county. Witness my hand and seal of office, this the 10th day of January, 1906. G. W. Hendricks, Ordinary Bartow County Ga." The bill of exceptions further recites: "Plaintiffs then introduced in evidence, without objection, Book B of Wills, page 14, from the records of the ordinary's office of said county upon which said page is recorded an exact copy of the foregoing will and testament of Charlotte Young, except that the record shows a cross-mark in the place which is left blank in the original will. It is admitted by both defendant and plaintiffs that the original will, the signature of the testator thereto, and the record of the same upon page 14, Book B of Wills, was in the handwriting of J. A. Howard, at that time ordinary of Bartow county, Ga. Upon motion of defendant, the court ruled that the certified copy of the said will was inadmissible in evidence and ordered a nonsuit against plaintiffs, on the ground that the aforesaid will of Charlotte Young was not in fact her will and testament, and could not be admitted in evidence by certified copy, for the reason that the said Charlotte Young had not set her mark in the blank space apparently left therefor in said will." To this ruling the plaintiffs excepted.

We are left somewhat in doubt, from the

foregoing recitals in the bill of exceptions, as to what actually transpired in the trial court. If the authenticated copy was excluded on the ground of the variance between it and the record with respect to the cross-mark in, the signature of the testatrix, the nonsuit was clearly erroneous. A will cannot be legally recorded by the ordinary until after it has been duly probated, and an exemplified copy of a will from the ordinary's office is presumptive proof of the due probate thereof. Thursby v. Myers, 57 Ga. 155. The court had before it both the original and the authenticated copy of the will. If the record of the will is to have any probative force at all, it is evident that the will was duly probated and admitted to record; and if the court excluded the authenticated copy because of the variance between the form of the signature appearing in it and that appearing in the original record, then the will, as it appeared upon the record, had the force and effect of a muniment of title. The defendant could have objected to proving the will by introducing the original record of it, or he could waive his right to compel an authenticated copy of the will and allow the record to go in evidence. The sole effect of excluding the certified copy was to leave unchallenged the origlnal record of the will; it having been admitted in evidence without objection. This record established the factum of the probate, because the ordinary could not legally have placed the will on record until it had been probated. On the other hand, if the trial judge treated the certified copy as an exemplification, not of the record of the will, but of the original will itself on file in the ordinary's office, and ruled that the will showed upon its face that it had never been signed by the testatrix, and that the probate was of a testamentary paper which was for that reason void on its face, then the inquiry is whether, in view of the admission of counsel as to the handwriting of the person who drew the will and signed to it the name of Charlotte Young, the court was right in holding that the instrument had not in point of fact been executed according to the provisions of the statute. Civ. Code 1895, § 3272, declares: "All wills (except nuncupative wills) disposing of realty or personalty must be in writing, signed by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses." It is not necessary to the validity of a will executed by an illiterate person that she should sign it by her mark. All that the law requires of a person who is unable, because of illiteracy or bodily infirmity, to sign a will, is that she shall authorize and direct some other person to sign her name to the will in her presence.

Assuming, then, that the cross-mark was omitted from the signature appearing on the original will, and at the time it was offer

ed for probate an inspection of it would suggest the idea that it was drawn up with the intention of having Charlotte Young sign it by her mark, then it became a question for the ordinary to determine, upon proper proof, whether she had intended to sign the will with her mark, but had failed to carry out her intention, or had directed some other person to sign her name to the paper in her presence, and this person had selected the form of signature adopted with a view to making it appear that the signature, though not in the handwriting of the testatrix, had been made by her authority. In other words, before the ordinary could probate the will he must have been satisfied by satisfactory proof that the will had been executed by the testatrix in one of the forms prescribed by law. After the lapse of seven years, a judgment of probate becomes conclusive as to the factum of due execution of the will (Civ. Code 1895, § 3283), unless the fact appears on its face that it was not executed pursuant to law. Gay v. Sanders, 101 Ga. 601, 28 S. E. 1019. The instrument relied on as a will in the present case did not conclusively show on its face that it was never signed, in a legal sense, by Charlotte Young. As already suggested, the placing of the words "her mark" in the position they occupied relatively to the signature affixed by the person who drew the will was open to explanation, and the fact may have been that it was never contemplated that she should sign the will by filling in the blank space with her crossmark, but she requested the scrivener to subscribe her name to the will in her presence, and he adopted the form of signature which it bears. We accordingly hold that the certified copy was not one of an instrument which was on its face a nullity; and, this being so, it follows that the judgment of probate was not open to collateral attack. Sutton v. Hancock, 118 Ga. 436, 442, 45 S. E. 504. In any view of the matter, the nonsuit was erroneous.

Judgment reversed. All the Justices con

cur.

(127 Ga. 200) CENTRAL OF GEORGIA RY. CO. v. RUFF. (Supreme Court of Georgia. Dec. 20, 1906.) 1. MASTER AND SERVANT-INJURY TO SERVANT-PLEADING.

In a suit for damages on account of personal injuries received by a servant of a railroad company, resulting from negligence of the defendant, in which two distinct grounds of negligence are alleged as a basis of a recovery, it is essential that the plaintiff should make such allegations as would amount to a declaration that he was free from fault with respect to each ground of negligence upon which it is relied for a recovery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 849, 850.] 2. SAME DEFECTS IN APPLIANCES-KNOWLEDGE.

Where suit was brought by a car coupler against the railroad company for an injury re

one

ceived while engaged in coupling, and ground of negligence alleged and insisted on was that one of the cars to be coupled had no drawhead and no means or instrument with which to couple it to others, an allegation that the plaintiff had no opportunity to examine the coupling apparatus of said defective car was not an allegation that he did not know that it was defective; and where, by special demurrer, this point was distinctly raised, it was error to overrule it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 853.]

(Syllabus by the Court.)

Error from Superior Court, Spalding County; E. J. Reagan, Judge.

Action by C. C. Ruff against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hall & Cleveland, for plaintiff in error. Arnold & Arnold, J. J. Flynt, and T. E. Patterson, for defendant in error.

ATKINSON, J. This is a suit for damages on account of personal injuries alleged to have been received by the plaintiff, a servant (a car coupler) of a railroad company, resulting from negligence. To support the action distinct acts of negligence are relied upon: (1) The backing of the engine by the engineer after he had accepted a signal not to come back, or in moving without a signal, and in the speed. (2) The use by the company of a defective car, which the plaintiff was required to couple onto other cars. The defendant demurred to the petition upon the grounds, among others, (a) that no cause of action was set out; (b) that the plaintiff did not allege himself to be free from fault; (c) that the plaintiff did not allege that the alleged defective condition of the car which caused his injury was unknown to him. The demurrer was overruled, and the defendant excepted.

In order for a plaintiff, who is an employé, to recover against a railroad company, he must allege in his petition that he was free from fault and that the defendant was negligent. Pierce v. Seaboard Air-Line Ry., 122 Ga. 665, 50 S. E. 468. Where more than one ground of negligence is specified as a basis for a recovery, the allegation of freedom from fault must be such as to show freedom from fault in respect to each of the grounds of negligence relied upon. While it is not necessary that the pleader should use the phrase "free from fault," it is absolutely essential that the averments should be such that this condition of affairs should be apparent from the language used. Enough appears in the petition to show the plaintiff free from fault so far as the conduct of the engineer in moving without a signal and in reference to the speed was concerned. It follows that there is no difficulty in this regard with reference to the first grounds of negligence. If an employé of a railroad company knowingly uses defective machinery, he

takes the risk incident to the use of machinery of this character, and the consequences resulting from such use are chargeable to him. See Central R. Co. v. Kenney, 58 Ga. 486 (2). If the machinery be so defective as to amount to negligence upon the part of the railroad company to permit its use (the plaintiff alleges that it was), it stands to reason that it would likewise be negligence upon the part of the servant to employ the use of such machinery, if he knew of the defect. If, under such conditions, he used defective machinery, he could not be said to be free from fault in that particular undertaking. Where it is alleged that the machinery is defective, and that the plaintiff in the use thereof sustained the injury as a result of the defect, the plaintiff would not state a case without going further. It would not be presumed that he did not have knowledge of the defect. The pleadings are to be construed most strongly against him; and, his want of knowledge of the defect being a material part of the plaintiff's case, he must affirmatively allege such want of knowledge. It is not sufficient to say that he had not had an opportunity to examine the car. He might have obtained the information otherwise than by examination. The demurrer pressed the plaintiff for an express allegation upon this point, and one should have been made. The demurrer to the declaration with respect to defective machinery, which constituted the second ground of negligence upon which it was sought to hold the defendant liable, ought to have been sustained, and it was erroneously overruled. It cannot be said that the error is harmless, because that ground of recovery was insisted upon throughout the trial of the case, and the verdict of the jury may have been based upon it. This case differs from Lawhorn v. Millen Ry. Co., 97 Ga. 742, 25 S. E. 492, and similar cases. There the question arose on the matter of the sufficiency of evidence. Here it is a matter of the sufficiency of pleadings to withstand a special demurrer.

The judgment upon demurrer was not erroneous for any other reason assigned. It being necessary to reverse the judgment upon the error of the court in refusing to sustain the demurrer, we will not consider the exceptions made to other rulings of the court.

Judgment reversed. All the Justices concur, except BECK, J., disqualified.

(127 Ga. 182)

MAYS v. HARKNESS. (Supreme Court of Georgia. Dec. 17, 1906.) JUDGMENT-DEFAULT-OPENING.

A rule nisi having been granted to foreclose a mortgage, and at the first term no answer having been filed, the case was taken out of its order and a rule absolute granted. At a later day during the term the defendant moved to reinstate the case and to be allowed to file a defense, showing that she had a meritorious defense, which she tendered for filing.

that the case had been placed on the calendar for trial, and the defense would have been filed in due time before it was reached, had it not been for the fact that it was taken up in advance of the regular order. Held, that there was no abuse of discretion on the part of the court in reinstating the case and permitting the defense to be filed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 265-268.]

(Syllabus by the Court.)

Any

and quality guarantled at destination. dispute in regard to this contract to be settled by the rules of the N. Y. Produce Exchange, Interstate Cotton Seed Crushers Association, New York Arbitration." It was alleged that a portion of the oil was not of the quality ordered, and that the defendant sent a check covering the allowance from the amount due on this account, and that "defendant also paid a part of the short

Action by R. W. Mays against Eliza Harkness. From a judgment reinstating the case, plaintiff brings error. Affirmed.

Ray & Ray and H. M. Fletcher, for plaintiff in error. J. B. Wall and J. F. Moore, for

defendant in error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

(127 Ga. 138)

TAYLOR v. GLOBE REFINERY CO. (Supreme Court of Georgia. Dec. 14, 1906.) 1. NEW TRIAL-INSUFFICIENCY OF EVIDENCE.

The suit being upon a contract alleged to have been made by the defendant, and the evidence not being sufficient to authorize a finding that the defendant had ever entered into a contract as alleged, a new trial should have been granted upon the ground that the verdict was contrary to the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 142, 143.]

2. SAME-Grounds.

The refusal of the judge to dismiss the case upon the ground that the petition was defective cannot properly be made a subject for the assignment of error in a motion for a new trial. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 24-27.]

8. DEPOSITIONS - GENERAL INTERROGATORY ANSWER.

An answer to a general and final interrogatory propounded to a witness should be excluded, when such answer contains material and important testimony of a fact of which the opposite party was not put on notice, either by the question embraced in the particular interrogatory, or when taken in connection with preceding interrogatories.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 136, 137, 273.]

(Syllabus by the Court.)

Error from City Court of La Grange; Frank Harwell, Judge.

Action by the Globe Refinery Company against B. F. Taylor. Judgment for plaintiff, and defendant brings error. Reversed.

The Globe Refinery Company brought suit against B. F. Taylor, alleging that the plaintiff purchased through "Williams & Flash Co., of New York City, of B. F. Taylor, of Hogansville, Ga., 8 tanks of prime crude C/S oil, at 31 cents per gallon loose at Hogansville and Gainesville, Ga., buyer's tanks. Delivery: 4 tanks October; 4 tanks Novenber. Terms: S/D with B/L attached for amount of invoice; no exchange. Weights

was indebted to plaintiff $103.19, besides interest, and that a copy of the account was attached to the petition; but no such account appears in the record. The amount above stated was alleged by plaintiff to be past due, and that defendant refused to pay the same. The defendant filed an answer deny. ing each and every allegation in the petition. At the trial the jury returned a verdict in favor of the plaintiff for the full amount sued for, and the defendant excepts to a judgment overruling a motion for a new trial.

Evins & Spence, A. H. Thompson, and D. J. Gaffney, for plaintiff in error. F. M. Longley and E. T. Moon, for defendant in error.

COBB, P. J. (after stating the facts). 1. The plaintiff introduced in evidence a written contract of the character indicated in the petition, and being in the exact words quoted in the statement of facts, except that the name of B. F. Taylor did not occur therein, and that the contract began as follows: "New York, June 24, 1902. To Globe Refinery Company, Louisville, Ky.: We have this day sold you, for accourt of Thomas Taylor, Jr."-which was followed by the language set forth in the statement of facts as embraced in the contract. This was signed: "The Williams & Flash Co., William P. Cantrell, Secretary." It appeared from the evidence that B. F. Taylor and Thomas Taylor, Jr., were the owners of the Hogansville Oil Mill; and it also appeared, in the correspondence relating to the transaction in question, that the letters were signed by B. F. Taylor. The defendant contends that the evidence was not sufficient to authorize a finding against B. F. Taylor, as there was nothing connecting him with the contract, in his individual capacity or otherwise. If the Williams & Flash Company were the authorized agents of Thomas Taylor, Jr., then the writing was a complete contract between Thomas Taylor, Jr., and the Globe Refinery Company, so far as the liability of Thomas Taylor, Jr, was concerned; and if he furnished to the Globe Refinery Company the oil under the contract, which was accepted by that company, then he would be liable to them on account of a failure on his part to comply with the terms of the undertaking. But upon what theory B. F. Taylor could be sued for a failure on his part to comply with the terms of the contract we