do not believe there was a statement made of all the circumstances connected with it, of the manner in which this was brought about, to Mr. Crockett, or that Mr. Crockett did not assent to it, did not assent to the arrangement which Mr. Foote had made,then, of course, it would follow that he would not be liable. That is simply a question of evidence for you to decide, applying the law I have given you in charge to the evidence." Alleged to be error because without evidence to authorize it.

Error in charging: "Now, there is a rule that the judge may give to the jury as to how they shall consider and treat the evidence. If the evidence in the case is conflicting, then the jury may found their verdict on what they believe to be a preponderance of the evidence. By the 'preponderance' is meant the 'greater weight of the evidence'; hence, if the evidence is both ways, that Mr. Crockett did assent to this arrangement on the one side, and that Mr. Crockett did not assent to this arrangement on the other side,-why then you are to come to your conclusion from the greater weight of the evidence, provided you cannot reconcile the evidence so as to make it all speak one way. It is the duty of the jury to reconcile the evidence, if they can, so as to make it all speak one way; but, if they cannot reconcile it, then the law allows them to find, as I have stated to you, upon the preponderance or greater weight of the evidence." Alleged to be error because it limits the rule as to the greater weight of the evidence to a case where the evidence is conflicting on a particular point. Also because it confines the application of the rule to a particular portion of the testimony,-that as to the assent of Crockett to an arrangement made by another witness in the case on the other side, thereby intimating that there was a conflict of evidence on this question, and the finding of the jury should be as they should determine this question.

Candler & Thomson, for plaintiff in error. John S. Candler, for defendant in error.

PER CURIAM. Judgment affirmed.

SMITH v. STATE.

(Supreme Court of Georgia. Dec. 21, 1894.) LARCENY EVIDENCE.

The charge being simple larceny, the evidence of guilt not being satisfactory, and there being no proof whatever as to value, a new trial is ordered.

(Syllabus by the Court.)

Error from city court of Floyd; W. T. Turnbull, Judge.

John Smith was convicted of larceny, and brings error. Reversed.

The following is the official report:

Smith was charged with the larceny of six poplar saw logs belonging to the Harris

Hartshorn Lumber Company. He was found guilty, and, his motion for new trial being overruled, excepted. The motion was upon the grounds that the verdict was contrary to the evidence, without evidence to support it, decidedly and strongly against the weight of the evidence, and contrary to law and the principles of justice.

The evidence of the state was to the following effect: Some time prior to the 17th of June, 1893, Hartshorn discovered at Camp's sawmill, in Rome, Ga., a raft of logs. claimed by defendant. In the raft he found six poplar logs which had the brand of the Harris-Hartshorn Lumber Company, which company began business before August, 1892. Several other logs appeared to have had a brand, but it could not be recognized.. It seemed as though the brand had been obliterated by blows from something like an axe. Hartshorn had a brand-new hammer made and sent up to Murray county, where logs were being cut by the company. When trees were cut in Murray and other counties, they were sent down to Hartshorn, and sawed up into lumber. None of the logs were cut in Floyd county. The six logs which Hartshorn took from Smith's raft had been cut in Murray county, and not in Floyd. The logs were branded with a hammer made for the company with a special brand. Hartshorn recognized the brand as soon as he saw the logs. Some were under the water, and he could not see them. Logs were cut, and then drifted out into the river. Hartshorn called Printup, Brown, and others to look at the logs in defendant's raft at Camp's mill. Hartshorn had talked with defendant about the logs before Hartshorn took them, and defendant claimed they were his logs. Defendant seemed somewhat excited. Some time before this, Hartshorn had employed defendant to raft some logs for the HarrisHartshorn Company, and knows defendant was familiar with the brand of the company. Printup and Brown testified corroborating Hartshorn as to the brands being those of the Harris-Hartshorn Company, and as to appearances indicating that an effort had been made to obliterate some of the brands. The sawyer of the Harris-Hartshorn Company saw the raft of logs in question, and identified six of the logs as belonging to the Harris-Hartshorn Lumber Company. They had the brands of the company on the end. He could not identify any more, but knows that all the logs belonged to the company. They were poplar logs. Some were under the water, and he could not see the ends. Camp testified: He is the owner of the sawmill. Hesaw the brand on the end of one of the logs, which was the brand of the Harris-Hartshorn Company. He could only identify one of the logs as belonging to the company. Defendant had brought witness a raft of 12 logs in April, 1893. When witness saw this log with the brand on it, he told defendant the logs belonged to the Harris-Hartshorn Company,

and refused to buy them. Defendant claimed the logs. Witness saw only one log the day Hartshorn came to him and claimed the logs, as they were under the water, but, as the water receded, he saw others, and saw the same brand on them. It further appeared that some time in the spring of 1893 defendant told one Biggers he would give him five cents apiece for any logs he might catch in the river that were not marked.

For the defendant the evidence was to the following effect: One Morrison bought 18 logs for defendant from Joe Harris in the spring of 1893, and 5 from Green Butler. Defendant had 4 logs on Armuchee creek. One of the 18 logs bought of Harris was not used. This left 26 logs, which Morrison rafted in May, 1893, and brought down to Camp's mill for defendant. Morrison did not see any brands on any of those logs. Defendant had notified him that he had some logs up Armuchee creek, and to look out for them in time of freshets. Morrison let defendant have a boat to go up Armuchee creek and get more logs. The logs which Morrison bought of Harris came off of Harris' place, and were carried up the creek in April. They lay on the bank for some time. Those logs were poplar and gum. In the spring of 1893 defendant had three logs lodged on Armuchee creek against the farm of one Staten, and Staten saw defendant go after them. In the latter part of 1892 defendant had about three logs on Armuchee creek, and tried to hire one Belman to bring them down. One Smith helped push out two or three of these logs from the bank, and start them down, in the last part of 1893. Defendant stated that he was not guilty of stealing any logs from the Harris-Hartshorn Company; that he did not see any brands on any logs which were bought for him by Morrison; that all the logs in that raft were his logs; that Morrison bought 18 for him from Harris, 1 of which was too short and only 17 were put in the raft; bought 5 from Green Butler, and the other 4 defendant owned.

Max Meyerhardt and Geo. A. H. Harris, for plaintiff in error. W. J. Nunnally, Sol. Gen., for the State.

PER CURIAM. Judgment reversed.

WHITNEY v. GIBSON et al. (Supreme Court of Georgia. Dec. 21, 1894.)

CONFLICTING EVIDENCE-NEW TRIAL.

The evidence was conflicting, but that introduced for the defendants was sufficient to sustain the verdict. There was no material error of law, and the newly-discovered evidence, in view of the counter showing, would not probably change the result. This court will not, therefore, overrule the discretion of the presid ing judge, who was satisfied with the verdict, in refusing a new trial.

(Syllabus by the Court.)

Error from superior court, Newton county; R. H. Clark, Judge.

Action by S. N. Whitney against William L. Gibson and others. Verdict for defendants, and plaintiff brings error. Affirmed. The following is the official report:

Whitney, as transferee of Kelly Bros. & Porter, sued W. L. Gibson and R. C. Patrick, agent for his wife, upon an account, the balance due being claimed to be $333.48. Upon the account there was a credit for sawing of $273.20. Defendants pleaded "not indebted"; that the matters charged on the account were taken up and bought by them in payment of money due them by Kelly Bros. & Porter for sawing lumber for Kelly Bros. & Porter, and the account was thus fully paid off before the same was transferred to plaintiff; and that Kelly Bros. & Porter were indebted to them when the account was transferred, and are still so indebted, $354.55 for sawing lumber. There was a verdict for the defendants, and, plaintiff's motion for a new trial being overruled, he excepted.

The motion contained the general grounds that the verdict was contrary to law, evidence, etc. Also, because the verdict was contrary to a certain portion of the charge specified. Because the court erred in charging that, if the jury believed from the testimony that Kirkpatrick, the assistant bookkeeper of Kelly Bros. & Porter, paid the amount which is credited upon the account (for sawing) out of the money that Kelly Bros. & Porter owed him as bookkeeper, that fact would be a circumstance going to charge notice to Porter, the surviving partner, of the existence of the defendants' account against Kelly Bros. & Porter. Alleged to be error, because the evidence did not authorize this charge. Because the court failed to charge that, if Kirkpatrick had money on deposit with Kelly Bros. & Porter, and took that money at the suggestion of defendants, and paid it on defendants' account, that would not have been notice to Porter, the surviving partner. In connection with this ground and the ground last above, the evidence showed that Kelly Bros. & Porter and W. A. Kelly & Bro. were two distinct firms, the former owning no land, and being engaged exclusively in merchandising, and the latter owning, in addition to their merchandise business, some land on which the sawmill of defendants was located. There was evidence for plaintiff that defendants never sawed any lumber for the former firm, for it had no use for lumber, but that the latter firm had erected on its land several houses; that defendants traded with Kelly Bros. & Porter, and what they got was charged to them (defendants), but not on any sawmill account; and that Kelly, one of the firm of Kelly Bros. & Porter, is dead. Kirkpatrick testified for plaintiff, among other things, that the amount credited on the account for sawing was for sawing done by defendants for him on his

land, after they had done the sawing for Kelly & Bro.; and that Kelly Bros. & Porter paid the amount to defendants out of their store for him. Defendants contended that they were entitled to a further credit for sawing lumber, and introduced their book of original entries, showing the account for sawing charged to Kelly Bros. & Porter. Gibson, one of defendants, testified, among other things, that he bought a good many of the goods from Porter, and told him to charge them to Gibson & Patrick sawmill account. Patrick testified that he bought a good many of the articles from Porter, and had them charged to Gibson & Patrick, but did not say anything to Porter about any sawmill account. In rebuttal, Porter testified that he was not interested in the sawmill, and had no recollection whatever of Gibson telling him to charge any of the goods to defendants' sawmilı account, for they had none that he knew anything about. One Sheppard also testified for plaintiff that he called on Gibson to settle the account now in suit, and Gibson told him defendants owed the account to Kelly Bros. & Porter, but, the defendants had a sawmill account against Kelly & Bro. that he wanted to work in in some way if he could, and for witness to see if he could not work it in in a settlement for them. This was soon after the failure of the firm of Kelly Bros. & Porter. Gibson gave a different version of this matter, claiming that he told Sheppard that Kelly Bros. & Porter owed defendants a bill for sawing lumber which paid off this account. Other grounds of the motion for new trial were because of newly-discovered testimony. In support of these grounds plaintiff produced the affidavit of Sheppard that, after the verdict, Gibson told him that he (Gibson) had changed the book of original entries of defendants, after the suit was brought, from W. A. Kelly & Bro. to Kelly Bros. & Porter. Also the affidavit of Kirkpatrick that Gibson came to him after the suit was brought, and asked him, as assistant bookkeeper of Kelly Bros. & Porter, to credit the books of Kelly Bros. & Porter, and give him (Gibson) a receipt in full of the account sued on. Also affidavits as to the ignorance of plaintiff and his counsel of the facts in the above affidavits until after the trial, and their diligence in preparing for trial. By way of counter showing defendants produced the affidavit of Gibson that he did ask Kirkpatrick to receipt him against the account, but it was before the suit was brought, though after suit had been threatened; that the reason he did so was that in the winter before Kelly Bros. & Porter failed he called on them for a settlement, and W. A. Kelly, the leading and managing partner, told Kirkpatrick, the bookkeeper, to mark the account now sued on settled in full on the books of Kelly Bros. & Porter, and deponent thought the bookkeeper did so, and that business was settled, so far as said account was concerned, and knew no

better till after the failure of Kelly Bros. & Porter, when he was asked to pay the account; that he then ascertained that Kirkpatrick had neglected to settle that account on the books, and then it was he reminded Kirkpatrick of what Kelly had instructed him to do, and of his neglect, and asked him if he still could not do so, and give deponent a receipt against the account, which Kirkpatrick refused, saying the books had gone into the hands of Whitney; that no such conversation occurred with Sheppard as stated in Sheppard's affidavit, and that he had had only one conversation with Sheppard since the case was tried, which was in the presence of deponent's counsel and others, and nothing was said which could be construed to mean any such thing. The plaintiff objected to the reception of so much of the affidavit of Gibson as referred to any of the declarations made by Kelly. The objection was overruled, and to this ruling also plaintiff excepted. The bill of exceptions does not state what was the objection made. Defendants also produced the affidavit of R. C. Patrick that some time in the fall of the failure of Kelly Bros. & Porter he and Gibson called on that firm for a settlement of the sawmill account, and upon running up the accounts it was seen that Kelly Bros. & Porter owed Gibson & Patrick for sawing lumber for themselves and Kirkpatrick a little more than Gibson & Patrick owed said firm; that Kelly instructed Kirkpatrick to settle the books, and at the same time instructed him to credit the account with the lumber sawed for Kirkpatrick, which he did, but did not settle the balance of the account; and that deponent did not know, till long after the failure, that the books were still open. Plaintiff objected to the reception of this affidavit, on the ground that deponent was acting as the agent of his wife, one of defendants, and was therefore incompetent to swear to any declarations made by Kelly in reference to settlement of the account, Kelly being dead; and further because the affidavit was not in rebuttal of plaintiff's affidavit. The objection was overruled, and to this also plaintiff excepted. Defendants also produced the affidavit of W. T. Patrick that he heard W. A. Kelly tell Gibson that the account now sued on had been paid, and not to pay it again, and that he (Kelly) would see to it that defendants should not pay it again; that this conversation occurred long after the failure of Kelly Bros. & Porter; and Kelly further said that the books were not then in his control, but he would get them soon, and straighten them up, and mark the account settled on the books. To the reception of this affidavit plaintiff objected, on the ground that deponent had been rejected as an incompetent witness on the trial, because he swore that he was acting as the agent of defendant in making the original contract for sawing this lumber with W. A. Kelly, one of the firm of

pain and suffering would be permanent. The view of the court was that, as the question of permanency was one of opinion, the plaintiff, although no expert, was competent to give an opinion in connection with his reasons for it. In this, we think, the court was mistaken. Whether the injuries and their effects were permanent or temporary was certainly matter of opinion; but the jury, in so far as they were unaided by expert evidence, should have been allowed to form their own opinion, not from that of nonexperts, but from the facts as proved by the witnesses. The plaintiff was competent to testify to his feelings, pain, and symptoms, as well as to all the characteristics of the injury, external and internal. This was the limit of his competency, and any opinion legitimately arising out of the facts could be more safely formed by the jury than by him. Scarcely anything is less reliable than a sick plaintiff's opinion of his own case, when he is in pursuit of damages. True, the Code, in section 3867, declares that "where the question under examination and to be decided by the jury, is one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor." The class of questions here referred to must be such as lie within the range of common opinion, although they may be somewhat within the province of scientific opinion, also. A fair illustration would be the question of sanity or insanity. Any witness may give his opinion upon such questions, after stating the facts on which it is founded. But suppose the question were whether, in a given case, insanity was permanent or temporary. This would be a question for scientific experts; and no court would think of taking the opinion of an ordinary witness upon it, with or without the facts on which the opinion was founded. Such a witness would be competent, upon stating the facts, to testify to his belief of the sickness or health of any one, or that he suffered pain. But this is very different matter from taking his opinion upon the question of when and how sickness would terminate, or whether a state of pain would be temporary or permanent. Nonexpert opinion might be relied on to take the step from observed facts to a present state or condition, but to pass upon these same facts, the present state and condition included, to a probable future state and condition, might be within the competency of expert opinion only. We think this is so, in such a case as the present more especially, where a part of the facts are not objective, but wholly subjective, consisting of the feelings and sensations of the witness himself, and being accessible to no other witness. How could such testimony be answered? How could the opinion of this nonexpert be met by a conflicting opinion of another witness of his own class? No other witness could possibly know what his sufferings are or have been, v.21s.E.nc.1-4

so as to make them a basis of belief or nonbelief as to their permanent character, or as to whether they would be only temporary. The Code surely does not intend that internal facts-facts of mere individual consciousness-shall be used as a basis of the opinion which it contemplates as being admissible in evidence, where the question is one of opinion. Both for this reason, and because the question on which the witness in this case was permitted to give his opinion was a scientific question, we think the evidence should have been excluded. The plaintiff's wife was permitted to testify to his complaints made in her hearing. She said he complained of his side a great deal. and, being told to state all of his complaints. she said his head hurt him, and his side and his leg; he suffered a great deal. Such evidence as this, by a witness other than the wife of a party, was competent and admissible, so long as the law excluded parties from being witnesses in their own behalf; but now that they are, by statute, competent to testify, and where, as in this case, the testimony is heard from the plaintiff himself, who knew the facts of pain and suffering, his wife, whose knowledge of them was derived from hearsay, was not competent to prove complaints which were no part of the res gestae of the injury. The ground on which such evidence was formerly deemed competent was the ground of necessity. That necessity no longer exists. The higher and better evidence is that of the person who has actual knowledge of the truth of the pains and other feelings to which the complaints relate. This view is taken by the court of appeals of New York in the case of Roche v. Railroad Co., 105 N. Y. 294, 11 N. E. 630. The reasoning of that case is entirely satisfactory, and applies as forcibly in Georgia as it does in New York. Indeed, before parties were made competent witnesses, the wife of the plaintiff could not be heard to testify at all in favor of her husband. The same statute which rendered her competent to testify for him rendered him competent to testify for himself. Code, § 3854. From the two errors in admitting evidence which we have discovered and discussed, a new trial results.

3. We wholly disagree with the counsel for the railroad company as to the effect of the plaintiff's deviation from "the rule of the road." That rule exists for the benefit of travelers, and not for the behoof of one who has wrongfully caused a bad condition of the road or street. The wrongdoer has no right to say that, "If you had not waived, in favor of another traveler, the place which was your due, the other might have been hurt, but you certainly would not." Such a waiver, whether from courtesy or for any other reason, was not negligence on the part of the plaintiff, relatively to the defendant, and could not prevent him from recovering, if he was otherwise free from negligence.