*1 con- principle charge of the court. considering the entire special ground adequately was covered in tained in the 11th appears. conten- charge given, There as and no error was company requiring tion that there statute the defendant was crossing, to maintain watchman and the court did at failing charge special ground err the instruction embraced required 12. Besides, question whether as to it was sig- defendant to crossing have a watchman at such to give warning nals or approaching, of the train to meet requirements using ordinary safety care -for the crossing, sufficiently whole. charge was covered as a
The court did err, special ground contended in as failing give the therein with embraced, dealing instructions negligence and defining ordinary care. The there- law embraced adequately in was given. charge covered 3. The evidence for the tended to substantiate allegations amended, her defendants petition, which the good against general conceded demurrer set out cause negligence. and valid action The case properly submitted jury. to the The evidence authorized plaintiff’s appears verdict in the favor, and no error of law special grounds Therefore, requiring new trial. did not err in overruling the defendant’s motion new trial as amended.
Judgment con- MacIntyre, P.J., Townsend, J., affirmed. cur.
33115, 33125. WILLIAMS v. AMERICAN SURETY
COMPANY; and vice versa. *2 Rehearing 19, denied Decided December 1950. December 1950. plaintiff C. Dettelbach, Sam in error.
Pope Mclntire, Dorsey, B. Williams & contra. Jones, Company an by Surety J. American This is action Worrill, paid Fulton by recover the amount against Williams to Sid by drawn and cashed Bank Atlanta on two checks National petition alleged, and the admissions of the defendant. The case introduced on the trial of the defendant and the evidence drawn show, tended to that Williams had two checks bank, and with Maurice C. Coleman Associates account of personal by depositing them had cashed the checks his and Trust Company Georgia; that account with the Trust regu- Company Georgia had forwarded the in the two checks lar of business to the Fulton National Bank which course terminating although notice them, apparently it had received sign on the authority Cole- of Williams to checks account of tending There also evidence show man and Associates. Coleman writ- 29, 1948, March Maurice C. or about that on directing that after date bank a letter that it honor ten the signed other only when himself his account one checks on noted but employees letter, that bank this person; named when the checks drawn Williams apparently overlooked it oversight paid them; through that demand was in, came repay refused, the sum but that he had made on Williams assigned rights in plain- the matter to and the bank had The tiff, Surety Company. American case tried the Civil hearing County by judge who Court of Fulton a thereof after judgment rendered a for the $656.80, April checks, plus the two interest amount of 1948. The general defendant made a for a new trial on the motion special grounds overruled, excepted. and on which was six he excep- main bill of assignment of error trial. for a new ruling on the motion complains only tions ex- plaintiff assigns exceptions, cross-bill sustaining the ceptions pendente the court lite to the petition. general demurrer to second count trial com Ground of the amended new objec plains admitted, because the over the defendant’s the' highest tion that it was and best evidence that original satisfactorily for, photostatic had not been accounted the letter National written Coleman to the Fulton notifying Bank the bank of the or termination of limitation (Ga. sign Williams’ checks. The L., act of 1950 1950, page 73, provides: photostatic section or any “That micro-photographic reproduction photographic or writing regular record may or or has made in the which been reproduction permanently by preserve course of business to writing evidence in be admissible in record shall *3 any State, proceeding proceeding in and in be court any board, agency bureau, department, fore commission original State, accounting in lieu of the the and without writing . .” F. Talley such or record. W. who was sworn that Vice- witness the testified he was Assistant received original President of the he letter bank, that the Coleman, handling case, photo in made that, the the bank original attorneys stat of the letter for in order keep to the original letter in been original their that the letter had files, misplaced they he that, were unable to far locate it, files, but that he could knew, original in the bank’s the was still regular photostat in the the made not locate it that "was original business, seeing the letter and that he recalled course copy sought to be introduced was a photostatic copy the that despite not original. Conceding, holding, but that the of the February 7, quoted above, sought to the evidence act of in settled secondary introduced it is evidence, be this case documentary secondary to showing that whether made admit original writing and to is evidence acount for the is sufficient de judge, the trial and that his discretion of sound wdthin the unless regard not be disturbed this court will in this. cision Paint & Varnish manifestly abused. Electric discretion is that
69 270(4) (198 277); Wilson- App. v. S. E. Co. 58 Ga. Lunsford, (8 (4) App. S. E. Collier, Weesner-Wilkinson Co. v. 688); 575 (2), (11 2d, 171); App. 2d, v. S. E. State, Brooks 63 Ga. 854). 288(4) (22 Carlyle, App. Goettee 68 Ga. S. E. 2d, lo attempts view to testimony Talley, regarding original he cate the letter that testified that of this fact photostatic copy he had seen the and knew that introduced was a true copy business, made course trial did not err permitting to introduced be in evidence. assigns trial
Ground 5 of the motion a new witness, testimony the refusal of the to exclude upon receipt that of the letter he Talley, referred to above letter, gave his he the bank’s records that to changed, secretary and right bookkeepers said her and tell to “Go to both them, bookkeeper, to head addition not to honor signed by more he re Williams”; checks Sid that when gave ceived the letter he no more signed instructions .that checks Sid to ac charged Williams were to Coleman’s objected ground count. This to that Talley “conversations between persons, Mr. and third not presence, defendant’s admissible, being hearsay same in so far ground as defendant was concerned.” mo This tion is without Hearsay merit. evidence is rests that which upon veracity subject the truth and of other cross- examination on the trial. Code, 38-301. Clearly, the § Talley person as what he told some third the letter about given or as person to instructions third can best be testi by Talley fied credibility testimony himself. The of this veracity rests on his alone. testifying *4 He was not to some what person other said to him to by facts related him other to some person of presence. out defendant’s Such evidence not hear say subject nor objection was it the to that it awas conversa tion had with third of presence. out the defendant’s ground complains The sixth of the amended be cause court refused to direct a for the verdict the defendant plaintiff’s after the It had closed. is well settled this State that it is never to refuse to direct a verdict. Pearl Co. Nichols, App. 452(1) (37 Assurance v. 73 Ga. S. E. 227), 2d, and cases cited therein.
70 new trial motion for a and 9 the amended 7,
Grounds 8 of permit to the defendant complain of refusal of the court to the Coleman between introduce in evidence of the contract permit de the himself, the refusal of the court to and and of Coleman and that under it testify to fendant as to this contract two salary unpaid for which the him certain sums owed as of question written, of refusal the checks in and attorney knowledge testify to permit the defendant’s to as to con agents and and its claims defendant’s In regard salary him Coleman. con tentions to the owed assignments error, contends nection with defendant these Bank that, when he the Fulton National cashed the checks and money agent them in course, due he received as the moneys and applied Coleman received to so cancellation salary him indebtedness of back due Coleman. new of the motion This contention these question of merit. it there are without As we see is trial in an money received agency involved here. Williams as agent anyone. Furthermore, not as when dividual and depositors the debtor bank receives the funds of its it becomes duty pay such is such depositors primary its to depositors. National only on the order of funds out Atlanta (7 Burke, 738); Georgia Bank v. Ga. E. 81 600 S. R. (11 Bkg. & Co. Love & Goodwill 297 S. Society, 616). pays pays If it other it own E. funds order payment through was made that such funds and where it shows to fraud, it of someone’s is entitled a mistake or as the results had received. payment money in an action recover such court, question case the sole we view the record this As sitting admissions judge decide, view the jury, when answer, defendant, made in the was whether or Coleman actual au he drew the checks on the account of thority pay had no out so. bank funds do upon duly some except person Coleman’s account thereon, and the draw fact that the by Coleman to authorized change Coleman may been a creditor of does have sought light, intro then, the defenses rule. this evidence and by excluded by the defendant duced amended grounds 7, 8 and complained of in court, *5 trial, motion a new not available evi- action, excluding the trial did err overruling dence and in thereafter motion these for a new trial. law verdict, no and, evidence authorized the
appearing, overruling the trial did not err in general grounds. for a new trial provided by This case was considered the whole court as approved p. 8, 1945, Laws, act March 232. Judgment main exceptions. bill Cross-bill affirmed exceptions dismissed. Sutton, C.J., MacIntyre, Gard- P.J., ner Townsend, JJ., J., concur. Felton, dissents. J., dissenting. It appear does law as matter of
Felton, or from that the letter notifying to the bank it of revocation of Williams’ one in- the kinds of customarily photostated are struments which banks due purpose course of business for the the transaction of busi- ness in permanently preserving the records and there was accounting sufficient letter authorize photostatic admission copy in evidence. guardian. HELMS,
33267. MELTON Rehearing Decided December denied 1950. December 1950. John A. Smith, Rainey, W. M. in error. Joseph
James E. Short, M. contra. Rogers,