Dixie Mfg. Co. v. Ricks

• Decision Date: 12 May 1922
• Docket Number: 2760.
• Citation: 112 S.E. 370,153 Ga. 364
• Parties: DIXIE MFG. CO. ET AL. v. RICKS.
• Court: Georgia Supreme Court

112 S.E. 370

153 Ga. 364

DIXIE MFG. CO. ET AL. v. RICKS.

No. 2760.

Supreme Court of Georgia

May 12, 1922

Syllabus by the Court.

The evidence as set out in the first division of the opinion is not inadmissible under section 5860 of the Civil Code of 1910, which provides that no attorney shall be competent or compellable to testify in any court in this state for or against his client to any matter or thing knowledge of which he may have acquired from his client by virtue of his relations as attorney or by reason of the anticipated employment of him as attorney, etc.

Under the act of 1918 (Acts 1918, p. 136), it was not error to decline to allow movants to introduce in evidence the original order of the superior court dissolving the Dixie Paper & Box Company as a corporation, more than four months before the filing of the plaintiff's suit.

Grounds of a motion for new trial, which are expressly abandoned will not be considered by this court.

Where on the trial of a case, a motion to nonsuit is overruled, and the exception to such ruling is not preserved in the lower court, such ground of exception cannot be entertained by the Supreme Court in a motion for new trial.

The charge complained of, to the effect that, even though there was a bona fide indebtedness due by the mortgagor to the mortgagee, if the mortgage was made with intent to hinder delay, or defraud the creditors of the mortgagor, such mortgage would be void, is not erroneous.

The charges set out in the sixth division of the opinion are not erroneous for any reason assigned.

Other grounds of the motion for new trial, not specifically dealt with, are without merit.

The verdict was supported by evidence, and the court did not err in refusing a new trial.

Additional Syllabus by Editorial Staff.

An objection to evidence in bulk is not good, where some of it is admissible, and other portions not admissible.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by James L. Ricks, a minor, by his next friend, J. B. Ricks against the Dixie Manufacturing Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

See, also, 110 S.E. 454.

T. B. Higdon and Walter S. Dillon, both of Atlanta, for plaintiffs in error.

Hewlett & Dennis, of Atlanta, for defendant in error.

HILL, J. (after stating the facts as above).

1. The first ground of the amended motion for new trial complains of the admission by the court, over objection, of the evidence of S. B. Wright, Jr., a witness for the plaintiff, who was allowed to testify as to certain conversations between him and T. J. Monroe, president of the Dixie Manufacturing Company and manager of the Dixie Paper & Box Company; Wright's testimony being in part as follows:

"The notice given by me to the Dixie Manufacturing Company, disclaiming liability as to the Ricks suit, was in writing. It was in a letter to Mr. Monroe, and then we discussed it. I took the same position in our conversation, denying liability. I told him my investigation into the Ricks case indicated there had been a violation, on their part, of one of the requirements of our policy, and because of that violation we would disclaim liability for the Ricks case, and refuse to extend the protection of the policy to the Dixie Manufacturing Company for the Ricks accident. That was August 8, 1918. About three weeks later I had a conversation with Mr. Monroe about the Ricks matter. I asked Mr. Monroe about the Ricks case, and he said they were trying to negotiate a small settlement with the father. He said that he did not feel that they were morally responsible for the injury to the Ricks boy, because the act of negligence, or the violation of the law, was permitted by an older brother of the Ricks boy, who held the position of night superintendent. In substance he expressed himself that he was willing to help Ricks pay his bills, some lost wages, and a small amount, help him financially. He said he would not recognize the claim as being one involving big damages. He said, further, he expected to put a mortgage on the plant, because there was some indebtedness due the Dixie Paper & Box Company. No amount was mentioned that I recollect. That is about all there was in that conversation at that time, as I recollect. Some few weeks after that I received a telephone message from Mr. Monroe, asking me to come over to his office. This conversation took place at Mr. Monroe's office on Peters street. He asked me by telephone to come over there. He did not tell me what he wanted to see me about over the telephone, but when I got to his office I discussed the other two accidents that had occurred at the time, and which we were handling under the policy. He asked me how I was progressing toward a settlement, and what I expected to do with the other two cases, and I told him that I had offered different amounts, aggregating some $700. He then suggested that I not be in any hurry in settling them up; that he expected to put a mortgage on the Dixie Manufacturing Company, and that he would probably have to take the plant over on this mortgage; that the mortgage would be large enough to cover the value of the plant, and that I need not hurry myself about paying out any money on the other two claims. He mentioned about $20,000 as being the amount of the mortgage. I told him I would not be a party to the mortgage, that my company made its policy absolutely good, and that I would go ahead and take care of our liability myself under those two other accidents; and I left him. At the time of my conversation with Mr. Monroe, he told me that the Dixie Manufacturing Company was indebted in a large amount to the Dixie Paper & Box Company, but no amount was mentioned. That was the second conversation, when we chanced to meet at the plant. He just merely remarked that the Dixie Manufacturing Company owed the Dixie Paper & Box Company some money, and that he was going to put a mortgage on the plant. He did not at that time make any statement that would lead me to believe that it was a fake mortgage. Later on at his office he made the statement that he was going to make the mortgage big enough to take care of the Ricks claim. He did not state how much the debt of the Dixie Manufacturing Company was. He stated he was going to make the mortgage for $20,000; that was big enough to cover the value of the Dixie Manufacturing Company."

This witness also testified that he was special agent, adjuster, and attorney for the London Guaranty & Accident Company, one of the insurance companies that carried the liability insurance for the Dixie Manufacturing Company at the time the injury to the plaintiff occurred. He stated he was an attorney at law, and that he was at the conversation with Mr. Monroe in the capacity of an attorney. He further stated that, in the previous hearing in this case before Judge Pendleton, he claimed exemption from testifying, and that when he came into the present hearing he supposed that his exemption from testifying still stood. He stated that both he and his company considered that it took a lawyer to do the things necessary to a settlement for personal injuries, and that there was no adjustment bureau for the adjustment of personal injury cases, and that this requires a skilled attorney. He stated that he claimed the privilege of exemption from testifying in this matter, because in his opinion the information given him by Mr. Monroe was given him solely through his connection as attorney for the London Guaranty & Accident Company, and that he represented them then and still represents them, and that there has been no actual determination of the controversy of the Dixie Manufacturing Company and the London Guaranty & Accident Company, and that the policy of the Dixie Manufacturing Company contains no limit as to when they may commence proceedings against the London Guaranty & Accident Company, except 90 days after they are compelled to pay out money in the Ricks case. He read from the policy of insurance held by the Dixie Manufacturing Company certain provisions by which the insurance company was bound to pay all costs and expenses attendant upon investigations, adjustments, and settlement of claims, and agreed to defend any claim or suit in the name or in behalf of the assured, or settle the same, if deemed advisable. The witness also stated that he did not defend the Dixie Manufacturing Company in the suit filed against it by Ricks; that he investigated, and then served notice that the insurance company disclaimed liability; that he refused to have anything further to do with the case as an attorney at law, and had nothing further to do with it afterwards; that he was a licensed attorney at the Atlanta bar, and that he appears in almost all the cases which his company defends.

There was...