text:
    10649,10650.
    ROWLAND v. WOODWARD IRON COMPANY; and vice versa.

    1. The original declaration in attachment, by which it was sought to recover for personal injuries received by the plaintiff while employed as a boiler-maker in the defendant’s plant, sets out a cause of action under the Alabama statute pleaded, to wit, section 3910 of the Code of Alabama,—particularly under subsections 2, 3 and 4 of that section.
    2. The second count of the declaration, added by amendment, sets out a cause of action under the common law. Durham v. Whittier Mills Go., 9 Ga. App. 26 (70 S. E. 195).
    3. The amended declaration was sufficiently full and specific to withstand all the grounds of special demurrer urged against it by the defendant.
    4. The court did not err in overruling the defendant’s special demurrer, but did err in sustaining its general demurrer and dismissing the declaration.
    Decided January 7, 1920.
    Action for damages; from city court of Atlanta—Judge Beid. April 5, 1919.

      A. II. Davis, for plaintiff,

      Tye, Peeples & Tye, for defendant.
   Luke, J.

The original declaration in attachment alleges, among other things, that the plaintiff was employed as boiler-maker by the defendant at its plant near Brighton, Alabama, and that while at work as such employee he was injured by the negligence of an incompetent fellow servant, whose incompetency was well known to the defendant and its foreman, and who, unknown to the plaintiff, was sent by the defendant’s foreman in charge to a place and with instrumentalities where the incompetency of such fellow-servant was calculated to cause and did cause the injuries for which the plaintiff sues. The nature of the work then being done by the plaintiff upon an oven is set out in detail, and it is further alleged: “Plaintiff was under the direction of the foreman of the defendant, who had superintendence intrusted to him, and said foreman, knowing plaintiff was at work at the place aforesaid, sent a helper up' on the oven with a casting, and directed him to bolt it in place immediately over plaintiff, plaintiff having been given no notice whatever, as ordinary care required, and not knowing that said helper was above him or had been ordered to go there. Said helper went up on the oven, and laid the casting down on the channel iron, or upon some part of the oven directly over plaintiff, and before he had bolted it into place, the constant tremors and the shaking of the oven or buck stay, which was the necessary effect of the air-hammer being used in driving the rivet, shook the said casting off, and caused it to fall upon plaintiff, striking him on the head and on other parts of the body, .and causing him to fall forward, and greatly and permanently injuring him. Said foreman who had superintendence intrusted to him was one Leo David, and he was negligent in ordering said work done and said casting placed over said oven at a time when plaintiff was working thereon, and he was negligent in not informing plaintiff that said work was to go ahead, and was negligent in allowing said work to be done and in directing that said casting be placed above, without being fastened or bolted in some way, because the necessary effect of the aforesaid tremors and shaking was to cause it to fall; and plaintiff further shows that the helper who was sent up to said place by said foreman who had superintendence intrusted to him was one Finck, and he was known to defendant and to said foreman to be an incompetent man, and had been ordered discharged, and was only being kept in the service until he could work out a balance due the company. Plaintiff shows to the court that said injury was caused by reason of the negligence of said foreman in negligently ordering said Finck up to do said work over plaintiff, without giving plaintiff notice thereof,, and without requiring that said riveting, which caused a tremor or shaking of the parts should cease while said work was being done, it -being dangerous to do said work while said riveting was being done; the said foreman knowing thereof and ordering said Finck up to do said work without notice to plaintiff. And said injury was caused also because of the negligence of said helper, Finck, who was grossly incompetent, and known to be so by defendant, and was put to said job while so known to be incompetent.” After setting out the nature of his injury and amount of his damages, the plaintiff further alleges that he brings this action under section 3910 of the Code of Alabama, which he alleges reads as follows: “3910. Liability of master or employer to servant or employé for injuries. When a personal injury is received by a servant or employé in the service of or business of the master or employer, the master or employer is liable to answer in damages to such servant or employé, as if he were a stranger, and not engaged in such service or employment, in the cases following: (1) When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of, the master or employer. (2) When the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superintendence. (3) When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employé, at the time of the injury, was bound to conform, and did conform, if such injuries resulted from his having so conformed. (4) When such'injury is caused by reason of the act or omission of any person in the service or employment of the master or employer, done or made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any person delegated with the authority of the master or employer in that behalf. (5) When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, electric motor, switch, car, or train upon a railway, or any part of the track of a railway. The master or employer is not liable under this section, if the servant or employé knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless the master or employer, or such superior, already knew of such defect or negligence; nor is the master or employer liable under subdivision 1, unless the defect therein mentioned arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition; provided, that in no event shall' it be contributory negligence or an assumption of the risk on the part of a servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect or who committed the negligent act causing the injury complained of.”

The second count of the declaration alleges and describes the cause of the injury as follows: “Plaintiff was doing said work in obedience to orders of the defendant, delivered to him by defendant’s representative and foreman Leo David, whose orders plaintiff was bound to obey. While plaintiff was so engaged, said foreman sent another of defendant’s servants, one Bob Finck, up on the oven with a casting weighing 35 or 30 pounds, and ordered him to work on, about, and with said casting and the tools, appliances, parts, and connections which would be used to fasten or bolt it in place, the place where it was ordered to be fastened being directly above the place where plaintiff was working, and some 6 or 8 feet higher than Ms head. Plaintiff charges that to require this work to be done as ordered, while he was working as aforesaid, jeopardized his safety and necessarily rendered the place where he was working unsafe, that the casting could not be held in the man’s hands all the time, that it was liable to accidentally slip from his hands or be dropped, and that, if it was laid down upon the channel iron or other part of the oven, it was liable to be gradually jarred off by the vibrations caused by the air hammer which plaintiff was using in his work. Defendant well knew these conditions and was negligent of plaintiff’s safety in attempting and requiring both said jobs of work to be carried on simultaneously. During the course of his work and before completing it, said Finck laid the casting down on the channel iron or other part of the oven above the place where plaintiff was working, and the casting was caused to move gradually, by the incessant vibrations caused as aforesaid, until it reached a position of unstable equilibrium and fell from its resting place. It descended with great force and struck plaintiff on Ms head and other parts of his body, grievously and permanently injuring him as hereinafter specified. Plaintiff shows that he was not informed or warned by defendant of the danger aforesaid and did hot know of it and could not have known of it by the use of ordinary care; that he was engrossed in his work, with all of Ms attention fixed on it, and was unaware of any danger until he was injured. Plaintiff shows that defendant took no precautions to insure his safety, that it entrusted the. work of bolting on the casting to Finck, although it well knew that he was an unskilled and incompetent workman, that it gave him no instructions with regard to the safety of the plaintiff who was working below him; and that it gave the plaintiff no warning as to the danger to which he was exposed as aforesaid by the orders of defendant. Plaintiff alleges that it was the duty of defendant to provide him a reasonably safe place in which to work and that the duty was nonassignable, and that the said foreman, having authority to order where, when and by whom work should be done, represented the master, and was under the duty of providing plaintiff with a reasonably safe place in which to work. . . Plaintiff charges that the defendant was negligent in the following respects :■ (1) in failing to provide the plaintiff with a reasonably safe place in which to work; (2) in rendering plaintiff’s place of work unsafe by ordering the work hereinbefore described to be done over the head of the plaintiff, without giving him any warning in respect thereto, and in sending to do said overhead work an unskilled and incompetent workman, without taking any measures to ensure plaintiff’s safety.”

The defendant demurred generally to each count of the declaration, and specially on the grounds-: that the averments of negligence and of the superintendence of the foreman were mere conclusions of the pleader and were too general and indefinite; that Finck’s incompetency and defendant’s knowledge thereof were not sufficiently alleged; that the injury appeared to be the result of a mere accident or else of the negligence of a, fellow servant of the plaintiff; that count 1 did not point out what part or parts of the Alabama statute the pleader claimed to be applicable to the facts of the case; and upon other grounds which were merely enlargements of the grounds of general demurrer. The demurrers being overruled in part and in part sustained, and the suit dismissed, both parties excepted.

It is not deemed necessary to elaborate the rulings stated in the headnotes.

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

Bloodworth, J., concurs. Broyles, G. J., disqualified.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    10829.
    Kendrick v. Battle et al.

    Decided January 7, 1920.
   Luke, J.

Where a remittitur from this court is made the judgment of the lower court, the latter court can not render another judgment against the sureties upon a supersedeas bond for a sum of money additional to the amount of the original judgment. In this case the court did not err in sustaining, upon the evidence offered, the affidavit of illegality. See Corbin v. McCrary, 23 Ga. App. 780 (96 S. E. 445.

■Judgment affirmed.

Broyles, C. J., and Blood/worth, J., concur.

Affidavit of illegality; from Taliaferro superior court—Judge Walker. June 26, 1919.

James A. Mitchell, Alvin G. Golucke, for plaintiff.

Hawes Cloud, for defendant.


author: Broyles, C. J. Broyles, C. J.

text:
    11146.
    SCOGGINS v. THE STATE.
    1. The constitution of this State, and not the certificate of the trial judge to the bill of exceptions, determines which reviewing court has jurisdiction of a case.
    2. Since the adoption of the amendment of 1916 to section 2 of article 6 of the constitution of this State (Park’s Code, Supp. 1917, §§ 6502, 6506), the Court of Appeals, and not the Supreme Court, has jurisdiction to review a judgment of a superior court overruling a motion to change the venue in a case where the defendant was charged with murder, and where no constitutional question was raised in the lower court.
    3. .Where the trial judge in his certificate to the bill of exceptions directs that a ease, of which this court and not the Supreme Court, has jurisdiction, be sent to the Supreme Court, but where the clerk of the trial court transmits it to this court, this court will retain possession of it and enter it upon its docket without the unnecessary circumvolution of first transferring it to the Supreme Court for the sole purpose of having that court by a formal order transfer it back to this court.
    4. The motion to dismiss the bill of exceptions is denied.
    5. The court did not err in denying the motion to change the venue.
    Decided January 7, 1920.
    Rehearing denied Jaunary 18, 1920.
    Application for change of venne; from Bibb superior court— Judge Graham presiding. November 28, 1919.

      John R. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

This was a motion to change the venue of a case where the defendant was charge with murder. The motion was denied, and the defendant sued out a bill of exceptions to the Supreme Court; the judge, in his certificate thereto, directed that the case be sent to that court, but the clerk of the trial court transmitted it to this court, and the plaintiff in error now moves that the case be transferred to the Supreme Court. No constitutional question was raised in the trial court.

The law, and not the certificate of the trial judge to the bill of exceptions, determines at which term a case shall be heard. DeLoach v. Trammell, 72 Ga. 198; Gordon v. Gordon, 109 Ga. 264 (2) (34 S. E. 324). Since the adoption of the act of 1893 (Ga. L. 1893, p. 52) now embodied in section 6147 of the Civil Code of 1910, the only mandatory provision of section 6145 of the Civil Code of 1910 is that the trial judge shall certify the bill of exceptions to be true; the other provisions of the section are directory only. Bailey v. Guthrie, 1 Ga. App. 350 (58 S. E. 103). Applying the principle of these rulings to the question now under consideration, it must be held that the constitution, and not the certificate of the trial judge, determines which one of the two reviewing courts of this State has jurisdiction of the case.

Previous to the constitutional amendment of 1916 the Supreme Court retained jurisdiction of bills of exceptions to judgments overruling motions to change the venue in murder cases, not on the ground that such a proceeding constituted a criminal case or a part thereof, but solely on the ground that it was a case of a pivil nature arising in the superior courts (Wilburn v. State, 140 Ga. 138, 78 S. E. 819), and the Supreme Court then had jurisdiction of all such cases. Since the constitutional amendment referred to, the jurisdiction of the Supreme Court, as to civil cases arising in the superior courts, has been restricted to certain classes of cases, and a motion to change the venue of a criminal case does not fall within any of those classes; and since that constitutional amendment all bills of exceptions to the overruling of motions to change the venue in murder cases have, when sent to the Supreme Court, been uniformly transferred to this court; the first of such cases being Marshall v. State, 20 Ga. App. 416 (93 S. E. 98), transferred to this court May 18, 1917.

Under the practice adopted in both reviewing courts, where a case has been sent by the clerk of the trial court to the reviewing court which has no jurisdiction thereof, it will be transferred by a formal order from that court to the court having jurisdiction; but where the clerk transmits a case to the reviewing court which has jurisdiction, although the judge may have directed that it be transmitted to the other court, the court having jurisdiction of the case will retain it and enter it upon its docket, without obtaining any formal order of transfer from the court to which it was erroneously directed by the judge.

Under the above rulings the motion of the plaintiff in error to transfer the case to the Supreme Court is denied.

A bill of exceptions which sets forth a general complaint of the refusal to change the venue in a criminal case will not be dismissed on the ground that it does not contain a legally sufficient assignment of error, where this court can, from an examination of both the bill of exceptions and the transcript of the record, ascertain what questions were passed on by the trial judge and what rulings the plaintiff in error seeks to have reviewed. See, in this connection, Civil Code (1910), § 6183; Anderson v. Newton, 123 Ga. 512 (51 S. E. 508); Kirkland v. Atlantic & Birmingham Ry. Co., 126 Ga. 246 (55 S. E. 23). Under the above ruling the motion to dismiss the bill of exceptions is denied.

The evidence introduced upon the hearing of the motion to change the venue was conflicting upon the material issues, and it does not appear that the judge abused his discretion in denying the motion. See, in this connection, Crawley v. State, 24 Ga. App. 33 (99 S. E. 705), and cases there cited.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

ON MOTION ROE A REHEARING.

Broyles, C. J.

A constitutional question, to be considered by this court, must be made during the trial of the case in the lower court. It is too late to raise such question for the first time in this court. Hendry v. State, 147 Ga. 260 (8) (93 S. E. 413); Bolton v. Newnan, 147 Ga. 400 (94 S. E. 236). See also, in this connection, Godchaux Co. v. Estopinal, 251 U. S. (40 Supt. Ct. 116).

There is no merit in any ground of the motion for rehearing. Behearing denied.

Luke and Bloodworth, JJ., concur.


text:
    9549.
    SOUTHERN STATES PHOSPHATE & FERTILIZER COMPANY v. CLARK et al.

    1. “Service of a rule nisi to foreclose a mortgage on realty, made by a special bailiff appointed by the judge of the superior, court under the Civil Code, § 6310, is not legal, although the service was made by the bailiff during the term of court at and for which he was appointed. The rule nisi must be served by the sheriff or his deputy. The sheriff can not be affected by the act or omission of such special bailiff.”

      (a) It is different, however, if the person serving as bailiff makes the service at the special direction of the sheriff of the county, and makes the return of service as deputy sheriff.

      2. Upon the agreed statement of facts the court erred in sustaining the affidavit of illegality.
    Decided January 27, 1920.
    Affidavit of illegality; from Laurens superior court—Judge Kent. November 2, 1917.

      Ira 8. Chappell, for plaintiff. J. 8. Adams, for defendant.
   Luke, J.

This was a proceeding growing out of the foreclosure of a mortgage on realty against Mrs. Essie Clark. The petition with the rule nisi thereon was served personally upon the defendant by a bailiff of the superior court, who was appointed by the judge of that court as is provided by section 6310 of the Civil Code of 1910. To the levy of the mortgage fi.fa. the defendant interposed an affidavit of illegality, upon the ground that the officer serving the rule nisi was not authorized to make the service and that the service was not legal. The issue was tried upon the following agreed statement of facts: “The entry of service is in the following words: 'Georgia, Laurens County, I have this day served a copy of the within petition and nisi personally on Mrs. Essie Clark. • This January 29, 1914. J. W. Couey, Deputy Sheriff/ The said J. W. Couey was a regular bailiff serving at the January term, 1914, of Laurens superior court, at which said term petition and rule nisi was issued, and took the oath prescribed in the Code of 1910, § 4990, and took no other oath. J. J. Flanders, sheriff of Laurens' county, placed a copy of the petition, foreclosure and rule nisi in the hands of the said J. W. Couey, and instructed him to serve the same on the defendant, Mrs. Essie Clark. J. W. Couey was not the regular appointed, sworn, and bonded deputy of the said J. J. Flanders, but simply a bailiff serving as such at said term of said court.” The judge of the superior court (by agreement presiding without the intervention of a jury), upon the agreed statement of facts, sustained the affidavit of illegality, upon the ground that the service of the rule nisi was not a legal service. Error was assigned upon this judgment and the question was certified by this court to the Supreme Court. In answer to the certified question the Supreme Court(149 Ga. 647, 101 S. E. 536) says: “Service of a rule nisi to foreclose a mortgage on realty, made by a special bailiff appointed by the judge of the superior court under the Civil Code, § 6310, is not legal, although the service was made by the bailiff during the term of court at and for which he was appointed. The rule nisi must be served by the sheriff or his deputy. The sheriff can not be affected by the act or omission of such special bailiff.” “If the person serving as bailiff had made the service at the special direction of the sheriff of the county, and had made his return of service as deputy sheriff, a different question would be presented.” The agreed statement of facts shows that this rule nisi was served at the special instance and at the direction of the sheriff of the county, and that the person serving it made'the return of service as “deputy sheriff.” Under the answer of the Supreme Court to the certified question it was therefore error for the court to sustain the affidavit of illegality.

Judgment reversed.

Broyles, O. J., and Bloodworfh, J.} concur.


text:
    10340.
    Rome Railway & Light Co. v. Thomas.
   Luke, J.

1. In a suit against a railroad company, a plea which admits that the plaintiff was .injured by the running of the cars? but denies negligence and asserts ordinary diligence upon its part, and alleges that the negligence of the plaintiff caused the injury, is not such a plea of justification as will entitle the defendant to the opening and conclusion in the case. See Georgia Railroad v. Williams, 74. Ga. 723 (2); Brunswick &c. R. Co. v. Wiggins, 113 Ga. 842-8 (39 S. E. 551, 61 L. R. A. 513). It was not error in this ease to deny to the defendant the right to open and conclude the argument.

2. This court can not say, as matter of law, that in this case it was error not to grant a new trial on the ground of newly discovered evidence. Upon the counter-showing as to diligence we can not say that it was error for the court to hold that there was a lack of the diligence required by law to discover the facts or witnesses alleged to be newly discovered. • It is true that much diligence was used, but upon the counter-showing the court was within the discretion authorized by law in determining that the defendant had sufficient information to put it on inquiry as to the possibility of securing the evidence. See Atlanta Rapid Transit Co. v. Young, 117 Ga. 349 (43 S. E. 861); Jinks v. State, 117 Ga. 714 (1) (44 S. E. 814). As to one of the grounds of newly discovered evidence, see answer of Supreme Court' to certified question in Central of Ga. Ry. Co. v. Moore, 149 Ga. 581 (101 S. E. 668).

3. When considered in view of the note of the trial judge in the judgment overruling the motion for a new trial, and when the charge as a whole is considered, there is no reversible error in any of the assignments of error upon the excerpts from the charge of the court The case was fully and fairly submitted to the jury, upon the issues raised by the pleadings and evidence.

4. The evidence authorized the verdict, which has the approval of the trial fridge, and for no reason assigned was it error to overrule the motion for a new trial. See Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 423 (91 S. E. 517).

Decided January 27, 1920.

Action for damages; from city court of Floyd county—Judge Nunnally. January 4, 1919.

L. II. Covington, Dean & Dean, for plaintiff in error.

Maddox & Doyal, contra.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    10641.
    CLELAND v. BENNETT.
    The writ of error in this ease must be dismissed for lack of service on the sheriff and his deputy, who were necessary parties to the bill of exceptions. Their acknowledgment and waiver of service after the bill of exceptions had been filed in this court, without an agreement that the case might be heard, as provided in the Civil Code (1910), § 6160 (3), can not prevent dismissal.
    Decided January 27, 1920.
    Affidavit of illegality; from city court of Baxley—Judge Lawrence. March 6, 1919.
    To an execution against Mary J. Cleland, upon which garnishment was obtained against the Woodmen of the World, an affidavit of illegality was interposed by her, on the ground that in the case in which the execution was issued, she had not been served and had no notice of the proceeding; and she traversed the deputy sheriff’s return of service and made him and the sheriff parties to the traverse. The trial of the issue resulted in a verdict against her; she made a motion for a new trial,^ which was overruled, and she excepted to the judgment overruling the motion.
   Bloodworth, J.

A motion to dismiss the bill of exceptions in this case was made on two grounds: 1st. “Because there is no proper and sufficient assignment of error made.” 3d. “Because the Woodmen of the World, W. J. Branch, and D. J. Branch were not made parties to the bill of exceptions, nor was same served on them.” The bill of exceptions contains a sufficient assignment of error, and the fijst ground of the motion to dismiss is overruled. The second ground is sustained. The Woodmen of the World is not a necessary party to the bill of exceptions. W. J. Branch, the sheriff, and D. J. Branch, his deputy, are necessary parties. Pro ducers Naval Stores Co. v. Brewton, 19 Ga. App. 19 (90 S. E. 735); Byrd v. Interstate Chemical Co. 19 Ga. App. 412 (91 S. E. 578), and cit. While the sheriff and his deputy acknowledged service of the bill of exceptions, they did not “agree that said case may be heard,” as provided by section 6160 (3) of the Civil Code of 1910. Marietta Paper Mfg. Co. v. Faw, 64 Ga. 450; Craig v. Webb, 70 Ga. 188 (2); Sears v. Jeffords, 119 Ga. 821, 823 (47 S. E. 186); Bullard v. Wynn, 134 Ga. 636 (1) (68 S. E. 439); Carter v. Davidson, 138 Ga. 317 (1) (75 S. E. 155); nor were they made parties by amendment as provided by section 5 of the act of 1911 (Ga. L. 1911, p. 149); Park’s Civil Code, § 6164 (b). See also Parrish v. Adams, 22 Ga. App. 170 (1) (95 S. E. 749); Coleman v. Board of Education, 136 Ga. 844 (3) (72 S. E. 159).

Writ of eiror dismissed.

Broyles, C. J., and Luke, J., concur.


author: Bloodwokth, J.

text:
    10792.
    CORONA v. DeLAVAL SEPARATOR COMPANY.
    í. A ground of a motion for a new trial, as to the exclusion of evidence, is incomplete and not in proper form for consideration by this court* where 'the entire ground, except a copy of a letter therein, is as follows: “Because the following material evidence offered by the movant was illegally withheld from the jury, against the demand of the movant, to wit, that certain letter dated October 3d, 1917, and signed by the plaintiff, of which the following is a copy.” The materiality of the letter and how it affected the case could not be ascertained without examination of other parts of the record.
    2. Eor no reason assigned did the court err in charging the jury as follows: “I charge you that if you find that the machine in question was delivered to the defendant, that if the defendant had the machine tested and accepted the same, and that he subsequently gave the notes for the payment of the amount in question, he could not be heard to complain that the machine in question was not suited for the purpose for which it was intended, or that it did not produce merchantable products.”
    3. Grounds of the motion for a new trial which are not argued in the brief of counsel for the plaintiff in error will be treated as abandoned.
    4. The objection to testimony admitted is not sufficiently stated in a ground of the motion for a new trial that the court erred in admitting the testimony over objection “as to its irrelevancy.”
    5. The value of the property in question was shown prima facie by the agreed price in the contract of sale; and the evidence authorized the yercliet rendered for the plaintiff.
    Decided January 27, 1920.

      Trover; from city court of Savannah—Judge Rourke. June 13, 1919.
    DeLaval Separator Company brought trover against Corona for an “emulsor” sold by the plaintiff to the defendant for $525 and alleged to be of that value, in which, under the terms of two promissory notes of the defendant for $162.50 each, given for a balance due on the purchase price, title was reserved in the vendor until payment of the notes. The defendant in his answer “admits that he refuses to deliver said machinery to the plaintiff for the following reason:” It was sold to him as a complete and up-to-date emulsifier,—that is a machine that would mix the ingredients of milk or cream so as to produce a marketable product, such as cream that would whip or could be used in the manufacture of ice cream; he installed the machine in his place of business and the plaintiff promised to send a representative who would instruct him in its use, but the man sent by the plaintiff was ill-tempered and impatient with him, and, after collecting the first payment of $200 on the machine, the plaintiff’s representative failed and refused to show or exhibit the machinery further. Defendant has tried to work the machine, but it has failed to produce the desired results and is unfitted for the purpose for which it was sold to him and is Avorthless to him. The expense incurred by him amounted to $150. The trial of the case resulted in a verdict in favor of the plaintiff, for $325. The exception taken to the instructions to the jury set out in the second headnote was that they “placed the entire defense upon a test of the machine, and precluded the consideration by the jury of any other circumstance set out in the answer or evidence showing failure of consideration or failure to comply with representation.” One of the grounds of the motion for a new trial was that “there was no proof of value of the emulser.”

      II. P. Coil), for plaintiff in error.

      O’Byrne, Ilarlridge & Wright, contra.
   Bloodwokth, J.

“A ground of a motion for new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545). “Tinder repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ga. App. 770 (1) (99 S. E. 471). The only allegation of error in the 4th ground of the motion for a new trial is that a certain letter dated October 3, 1907, signed by the plaintiff and copied in this ground of the motion, was material evidence, and was illegally withheld from the jury, against the demand of the movant. To ascertain how this letter was material, and how it affected the case in any way, would require reference to other parts of the record; and under the decision cited above and numerous other decisions of this court and the Supreme Court, this is not required.

The excerpt from the charge of the court of which complaint is made in ground 5 of the motion for a new trial is not erroneous for any reason assigned.

The 6th ground of the motion is not argued in the brief of counsel for the plaintiff in error, and will be treated as abandoned.

The 7th and 8th grounds each complain that the court erred in admitting certain testimony “over the objection of defendant as to its irrelevancy.” Assignments of error as to the admission of testimony should be specific. It is not sufficient to say simply that the testimony was irrelevant. Chambers v. Walker, 80 Ga. 642 (9, 10), 649 (6 S. E. 165, 168); Ingram v. Little, 14 Ga. 174 (3), 184 (58 Am. Dec. 549).

There is ample evidence to support the verdict for the plaintiff for $325. A witness swore, “the purchase price was $525. This was paid by check for $200 and two notes for $162.50 each.” The two notes, each for $162.50, payable to plaintiff and signed by defendant, were in evidence. “It has been held a number of times by this court, that, as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie but not conclusive evidence of the actual value of the property, and that upon proof of the contract, in the absence of rebutting testimony as to value, the plaintiff was entitled to recover the balance due thereon.” See Carter v. American Slicing Machine Co., 23 Ga. App. 423. (2), 426 (98 S. E. 365), and cit,

Judgment affirmed.

Broyles, C. J., arid Lulce J., concur.


author: Broyles, C. J.

text:
    10937.
    Brantley v. Clifton, administrator.
    Decided January 27, 1920.
    Complaint; from Toombs superior court—Judge Hardeman. August 28, 1919.

      Williams & Corbitt, for plaintiff in error.

      Lankford <&■ Rogers, contra.
   Broyles, C. J.

1. Where the court-house of a county had been burned, and no other permanent place had been rented for court purposes, an administrator’s sale held at the site of the burned court-house was not void for the reason that after the destruction of the court-house the terms of the superior court of the county were held in a public-school building, under an order of the judge that they be held there “until suitable provision has been made,” it further appearing that when the court was not in session the building was used for school purposes, and that the clerk of the superior court, the ordinary, and the sheriff all had their offices in another building. See, in this connection, Longworthy v. Featherston, 65 Ga. 165.

2. The court did not err in refusing to direct a verdict for the defendant, as a refusal to direct a verdict is never error.

3. Where an administrator elects to resell land &t the purchaser’s risk, he should offer it for resale as soon as practicable, and it is a question for the jury whether the second sale occurred as soon as practicable, and, if not, whether the administrator delayed an unreasonable time in offering the land for resale. Roberts v. Smith, 137 Ga. 30 (2) (72 S. E. 410). In the instant case the first sale of the land occurred on the first Tuesday in December, 1917, which was December 4th. The purchaser, either on December 5th or 6th, refused to comply with his bid. A glance at the calendar will show that it might have been possible to advertise the resale of the land in time for the second sale to occur on the first Tuesday in January, 1918. The administrator, however, advertised the resale of the land in January, 1918, and the second sale was held on the first Tuesday in February, 1918. Whether, under all the facts of the case, it was practicable for the administrator to have advertised the resale of the property in time to resell it on the first Tuesday in January, 1918, and, if so, whether he delayed an unreasonable time in starting the' advertising, are questions which should have been submitted to the jury; and the court therefore erred in directing a verdict for the plaintiff.

Judgment reversed.

LuJee and Bloodworth, JJ., concur.


text:
    10940.
    CENTRAL OF GEORGIA RAILWAY CO. v. HOBAN.
    The well-established principle of law that before a party to a contract is entitled to have it rescinded for fraud in its procurement, he must pay back or tender any valuable consideration received under the terms of the contract, applies to an action for personal injuries, brought under the Eederal “employer’s liability act,” where the plaintiff, after the infliction of the injury sued for, signed, for a valuable consideration, a contract releasing the defendant from all liability therefor.
    Decided January 27, 1920.
    Action for damages; from city court of Richmond county— Judge Henry C. Hammond, presiding. September 6, 1919.

      James O. C. Black, W. Inman Gurry, for plaintiff in error.

      Henry G. Roney, contra.
   Broyles, C. J.

This was an action for personal injuries, brought under the Federal “employer’s liability act.” The petition, construed most strongly against the plaintiff, showed that subsequent to the infliction of the injury sued for, he, for a valuable consideration, to wit, $228, signed a contract releasing the defendant from all liability on account of such injury. Conceding, but not deciding, that the petition further showed that the contract was voidable because of fraud in its procurement, it failed to show that the consideration received was paid back, or a legal tender thereof made, to the defendant. The petition, therefore, did not set out a cause of action, and the court erred in refusing to dismiss it on the geperal demurrer interposed.

It is earnestly argued by the learned counsel for the defendant in error that in a case brought under the Federal “employer’s liability act” such a contract of release can be avoided without the tender of the consideration, but he cites no controlling or persuasive authority to sustain his contention. This question does not appear to have been directly or indirectly passed upon in any decision which we have been able to find, or in any submitted to us by the learned counsel on either side of the case. Upon reason, however, it is clear to us that the just, sound, and equitable principle of law that a party to a contract must restore any valuable consideration received thereunder, before he is entitled to rescind it because of fraud in its procurement, should apply under the Federal act. The mere fact that the act does not specifically provide for the application of the. rule is not a convincing argument that it should not be applied. Neither does the act-specifically provide that a contract of settlement, for a valuable consideration, made subsequently to the infliction of the injury sued for, can be avoided because of fraud in its procurement, and yet, nevertheless, all the courts have held that this general principle of law is applicable in cases brought under the act.

The fact that in section 5 of the act it is provided in effect that in a case where a void contract of release has been made before the infliction of the injury sued for, the plaintiff can maintain his action without first tendering the consideration he received, and that the act says nothing in reference to whether an action can be maintained without the tender of the consideration in a case where the plaintiff signed the contract of release subsequently to the infliction of the injury sued for, tends to show that in the latter ease the general rule of law as to the restitution of the consideration of a contract before it can be rescinded is applicable. The Federal act is, of course, exclusive in its operation upon all matters of substance specifically or impliedly covered by its provisions, but nowhere in the act itself, or in the decisions of the courts construing it which have been called to our attention, can be found anything tending to show that the act does away with the ancient and equitable rule requiring that before a contract can be rescinded for fraud the consideration must be paid back or tendered.

The petition in this case, construed most strongly against the pleader, shows that the release-contract was a settlement for the plaintiff’s alleged injuries, and that it was not in contravention of section 5 of the Federal act (35 U. S. Stat. at L. 65, ch. 149), since it was not a device to avoid liability on the part of the defendant, but, on the contrary, a virtual admission of and settlement for such liability and damages/after the accrual of the cause of action. “The right to make a compromise and settlement and enter into a release is a right of contract which, in our judgment, can not be interfered with even by congress.” Anderson v. Oregon Short Line R. Co., 47 Utah 614 (155 Pac. 446). See, also, in this connection, Eiehey, Federal Employers’ Liability Act, § 32, p. 59; L. E. A. 1918-F, 1073-4-5-6, notes; 34 Cyc. 1071; Mitchell v. Louisville etc. R. Co., 194 Ill. App. 77; Ballenger v. Southern Ry. Co., 106 S. C. 200 (90 S. E. 1019); Panhandle &c. Ry. Co. v. Fitts, Tex. Civ. App. (1916), 188 S. W. 528; Patton v. Atchison, T. & S. F. Ry. Co., 59 Okl. 155 (158 Pac. 576).

To avoid the binding effect of the release contract, the plaintiff in his petition goes outside of the provisions of the act and pleads the well known general rule of rescission for fraud in the procurement of the contract. Here he is met by the equally well-established rule of law, and the statutes of this State, that before one can rescind a contract in such a case he. must restore or tender to the other party what he has received under the contract. Civil Code (1910), § 4305; East Tenn. &c. Ry. Co. v. Hayes, 83 Ga. 558 (10 S. E. 350); Harley v. Riverside Mills, 129 Ga. 214, 216 (58 S. E. 711); Western & Atlantic R. Co. v. Atkins, 141 Ga. 743 (2) (82 S. E. 139).

We are of the opinion that sound law and Sound morals require that the plaintiff in the instant case should have paid back, or legally tendered, the sum of money which he received as the fruits of the contract voluntarily entered into by him subsequently to the infliction of the injury sued for, before he was entitled to bring his suit on his original cause of action; It follows from what has been said that the court eyred in overruling the general demurrer interposed, and that the further proceedings in the case were nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    10945.
    Johnson v. Harris.
    Decided January 27, 1920.
    Rehearing denied February 13, 1920.
    Complaint; from city court of Blakely—Judge Sheffield. August 19,1918..

      B. W. Fortson, for plaintiff in error.

      A. H. Gray, contra.
   Broyles, C. J.

This was a suit upon a promissory note. The only defense' filed was the plea of payment, and upon this issue of fact the evidence amply supported the verdict for the plaintiff. Under the' facts of tho case the special grounds of the motion for a new trial are wholly without merit; and it appearing to this court that the writ of error must have been prosecuted for delay only, the prayer of the defendant in error that ten per cent, damages ’ be assessed against the plaintiff in error is granted.

Judgment affirmed, with damages.

Luke and Bloodworth, JJ., concur.


text:
    10950.
    Hightower v. Davis.
   Broyles, C. J.

1. An unsanetioned petition for certiorari can not be specified or sent up as part of-the record. It should be incorporated in the bill of exceptions or be verified as a part thereof by the trial judge. Hall v. State, 2 Ga. App. 437 (58 S. E. 558), and cit.; McGovern v. Trammell, 14 Ga. App. 754 (82 S. E. 318).

Decided January 27, 1920.

Petition for certiorari; from Fayette superior court—Judge Searcy. August 29, 1919.

W. B. Hollingsivorth, for plaintiff in error.

J. W. Culpepper, contra.

(a) An unsanctioned petition not incorporated in the bill of exceptions but specified and sent up as a part of the record is not sufficiently identified by the mere attaching to the bill of exceptions, and following the judge’s certificate, of the paper which purports to be the original petition, or a copy thereof, with the order refusing sanction. Sullivan v. Surrency, 15 Ga. App. 301, 303 (82 S. E. 926); Hollingsworth v. College Park, 17 Ga. App. 372 (86 S. E. 945.)

2. Under the above ruling the writ of error must be

Dismissed.

Luke and Bloodworth, JJ., concur.


text:
    10957.
    Highsmith v. Moffitt.
    Decided January 27, 1920.
    Action for damages; from city court of Savannah—Judge Freeman. September 18, 1919.
    The petition of Marcus L. Moffitt against J. L. Highsmith, as ■amended, alleges: On April 11, 1919, the defendant operated a planing mill and employed Herbert Gary as foreman in charge of its operation, and the said foreman was the alter ago of the defendant. The plaintiff was oi^ that day in the defendant’s employ at the said plaining mill, .working under the said Gary, operating a molding machine running 7/8 quarter round molding, and was new at this kind of work, having been first employed at it only three days before that day, and the defendant knew he was green and inexperienced when he was put to work on the machine. In the operation of the machine the shavings and raw edges of the lumber being manufactured sometimes catch in the machinery, and the machine becomes clogged. The said Gary instructed the plaintiff, in ease the machine became clogged, to press down upon the feed-lever of the machine, and, if that did not relieve the trouble, then to go around the apparatus which removes the shavings and see if he could locate the trouble, aud take a wrench or piece of iron and knock against the part of the machine known as the presser foot, and, if the molding was away from the presser foot, to mash it back against the presser foot. Plaintiff was stationed at the western end of the machine, -and there fed into it the pieces of lumber that were to be planed and molded. To get to the presser foot he had to leave his station, go around that part of the machine that conveyed away the shavings, and lean over a part of it that was flat in construction, similar to a table. In the part last mentioned, about three feet from the part which conveyed away the shavings, there was a gap about six inches wide, in which revolved two flat iron knives about ten inches long, each fastened on a shaft which was connected with the motive power of the machine; and when the machine was in operation these knives revolved at the rate of about 4000 revolutions a minute, and so rapidly that the knives were not apparent to one inexperienced who did not •previously know they were there. The knives were not used in any work the plaintiff was doing or had been doing while in the defendant’s employ, and should have been removed or covered over. The part of the machine which was doing the planing and molding was on the shaft which held the knives, but on the southern end of the shaft, next to the presser foot and at least six inches from the place where the plaintiff placed his hand and where the injury here described occurred. While he was running the machine on the day mentioned above, it became clogged, and, following Gary’s .instructions as detailed above, he pressed on the feed lever and upon the roller weight of the 'machine, but in neither instance was the trouble relieved. Then he went around the machine as aforesaid to locate the trouble and to strike the presser foot with a wrench which he had in his hand. He had to lean over the part of the machine constructed like a table as aforesaid, and to do this he had to rest the weight of his body on his left hand, and had to place his left hand on the table near the gap aforesaid. In the act of leaning over to see if he could locate the trouble and strike the presser foot he did not notice the gap, and, not knowing that the knives were there revolving as aforesaid, or that the gap contained an obscure and hidden danger, he did not pay particular attention to it, and as he placed his hand on the table to support himself as aforesaid his hand partly fell in the said gap and instantly the knives revolving as aforesaid completely severed his hand about an inch above the knuckles, on a line with the thumb. A proper regard for the safety of the employees of the mill and one operating this machine would have demanded that the said gap in the machine be covered so as to prevent a person operating the machine from placing his hand in the gap where the knives were revolving. The plaintiff did not know that the knives were in the gap, and in the exercise of ordinary care he could not have known that they were there. They were not apparent to him. He did not have equal means with the defendant of knowing that they were there. The defendant knew the exposed knives were revolving in the gap, knew that the plaintiff was green and inexperienced, knew that the machine did not have a cover over the knives, and knew and in the exercise of ordinary care could have known that in the attempt to unelog the machine in the manner in which the plaintiff was instructed to do so, he would in all probability place his hand in the gap; and the defendant did not warn him of the said danger. The defendant was negligent: (1) in having and operating the unsafe machine as aforesaid; (2) in not warning the plaintiff of the danger from the said unsafe machine; (3) in placing an inexperienced operator at a place of danger without warning him of the danger incident to the work; (4) in that the said vice-principal and alter ego of the defendant directed the plaintiff in the manner of operating the machinery of the mill so as to place himself in a dangerous position, from which the alleged injury resulted to him; (5) in that the defendant, through the said vice-principal, negligently directed the plaintiff in the manner of operating the machine, made dangerous because the defendant failed to supply the machine with ordinary, necessary, and useful safeguards, so as to make the said machinery reasonably safe for all persons operating it with ordinary care and diligence. Each of the said acts of negligence concurred in causing the injuries complained of. Allegations are made as to the extent of the damage, and the plaintiff prays for damages in a stated sum.
   Broyles, C. J.

The petition as amended set out a cause of action and was not subject to any ground of demurrer interposed.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The defendant demurred to the petition generally and specially, the demurrer was overruled, and he excepted.

Seabroolc & Kennedy, for plaintiff in error,

cited: 113 Ga. 80; 137 Ga. 704; 106 Ga. 568; 21 Ga. App. 602; 7 Ga. App. 584; 78 Ga. 260; 92 Ga. 495; 134 Ga. 713; 1 Labatt, M. &. S. 394 and cit.

Osborne, Lawrence & Abrahams, D. 8. Atkinson, contra,

cited: Civil Code (1910), § 3130; 88 Ga. 286 (2); 9 Ga. App. 738 (2); Shearman & Redf. Neg. (6th ed.) 621, 637, §§ 217, 219a; Labatt, M. & S. (2d ed.), §§ 1321-2, 1329-31; 129 Ga. 688; 127 Ga. 404; 98 Ga. 655; 5 Ga. App. 223 (2); 13 Ga. App. 799, 817; 1 Ga. App. 403. Distinguished: 92 Ga. 495; 134 Ga. 713.


text:
    10960.
    GARNER v. FLOYD COUNTY.

      ill contracts made by county authorities on behalf of the county must be in writing and entered on their minutes. Civil Code (1910), § 386; Pritchett v. Bartow County, 46' Ca. 462; Akin v. Bartoio County, 54 Ga. 59; Milburn v. Glynn County, 109 Ga. 473 (34 S. E. 848) ; Spalding County v. Chamberlain, 130 Ga. 649 (61 S. E. 533) ; Jones v. Bank, 131 Ga. 191 (62 S. E. 68) ; Laurens County v. Thomas, 6 Ga App. 568 (65 S. E. 302).
    Decided January 27, 1920.
    Complaint; from Eloyd superior court—Judge Wright. August 1, 1919.

      M. B. Eubanks, for plaintiff.

      Benny & Wright, for defendant.
   Broyles, C. J.

The plaintiff in this case was employed as a “concrete foreman” on behalf of Eloyd County by the superintendent of public works, who had general written authority, duly entered upon the minutes, from the board of roads and revenues of the county to employ men for the building and repairing of the public roads and bridges of the county. The plaintiff, to meet a demurrer interposed by the county, amended his original petition by alleging “that the contract of employment therein set forth was entered upon the minutes of the commissioners of roads and revenues of said county.” Upon the trial of the case it appeared that the specific contract with the plaintiff was not in writing and had never been entered upon the minutes of the board of roads and revenues of Eloyd County. Under the ruling stated in the headnote, and the authorities there cited, the court, sitting by consent without the intervention of a jury, did not err in rendering judgment in favor of the defendant.

Judgment affirmed.

Luke and Bloodivorth, JJ., concur.


text:
    10962.
    HAMILTON v. THE STATE.
    By failure to except to the judgment overruling his demurrer to the indictment, the defendant was precluded from raising in a motion for a new trial the questions raised by the demurrer.
    Decided January 27, 1920.
    Indictment for forgery, etc.; from Decatur superior court— Judge Harrell. September 25, 1919.

      A. E. Thornton, for plaintiff in error.

      R. G. Bell, solicitor-general, Frank A. Hooper & Son, contra.
   Bloodworth, J.

The indictment in this ease contains two counts, the first charging forgery of a bank check, and the second uttering said check. The indictment alleged that the check was “of the following tenor and effect, to wit: ‘The First National Bank, Bainbridge, Ga. Octo. 1st, 1918. Pay to the order of Frank Johnson $20.00, Twenty dollars, No. 876. Walker.’ A demurrer was filed to the indictment, in part as follows: “1. No crime against the laws of Georgia is charged in said indictment. 3. Defendant demurs specially to said indictment, in that said indictment 1 charges that said check was signed ‘Walker,’ which said signature is not the signature of any person, firm, or corporation, nor is such a signature such that would mislead, defraud, or fool anyone, and, such signature not being name or signature of any person, firm or corporation, same is not subject of being forged.” The demurrer was overruled, and no exceptions to this ruling were filed. The case proceeded to trial. There was a verdict of guilty on both counts, and, the defendant’s motion for new trial being overruled, he excepted. In the brief of counsel for the plaintiff in error all grounds of the motion for a new trial are expressly abandoned except those which raise the identical question disposed of by the demurrer. The Supreme Court, in Matthews v. State, 125 Ga. 248 (54 S. E. 192), held: “Where a demurrer to an indictment calls for a construction of a penal statute, the judgment rendered thereon concludes the defendant as to the construction given the statute by the court, unless reversed or set aside by appropriate procedure.” -See also Mayor & Aldermen of Savannah v. Monroe, 22 Ga. App. 190 (2) (95 S. E. 731); 22 Ga. App. 285 (3-b) (96 S. E. 500). Hnder the above ruling the plaintiff in error is concluded by the ruling on the demurrer, and the judgment must be

Affirmed.

Broyles, O. J., and Luke, J., concur,


text:
    10973.
    Graham v. Maryland Life Insurance Co.
    Decided January 27, 1920.
    Complaint; from DeKalb superior court—Judge Smith. September 11,1919.

      Ralph McClelland, for plaintiff. L. J. Steele, for defendant.
   Broyles, C. J.

1. Where the insurer sues the insured upon unpaid past-due promissory notes given for the first annual premium on a policy of life-insurance, -which was delivered to and accepted by the insured, a recovery for the full amount of the notes, with interest and attorney’s fees, can not be defeated on the-ground of a failure of consideration, total or partial, in that the policy provided that it should not become of force until the first premium had actually been paid, and that a failure to pay any premium note when due would avoid the policy. 25 Cyc. 756, note 46; Id. 758, notes 62 and 63; Id. 759, note 69; Id. 760 (4), note 79.

2. The defendant’s plea of fraud in the procurement of the notes sued upon was not supported by any evidence.

3. Under the above rulings the court did not err in directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10979.
    Ward v. Ward.
    Decided January 27, 1920.
   Broyles, C. J.

1. Whoever attacks the validity of a marriage has the burden of proving its invalidity, by clear, distinct, and positive proof. The presumption as to the validity of a marriage can only be negatived by disproving every reasonable possibility. Murchison v. Green, 128 Ga. 339, 342 (57 S. E. 709, 11 L. R. A. (N. S.) 702); 26 Cyc. 877 (2).

2. Where a second marriage by a person is established and it is shown that he or she had previously married another person who was living at the time of the second marriage, the presumption is that the first marriage had been dissolved by a decree of divorce, and the burden is upon the person attacking the validity of the second marriage to show that a divorce had not been granted. 26 Cyc. 880 (4), note 37, and authorities there cited.

3. Under the above rulings and the facts of the instant case, the court did not err in directing a verdict for the caveatrix; and the error in allowing, over the objections of the other party, oral testimony to the effect that the caveatrix had secured a divorce from her first husband was harmless and does not require a new trial. If this illegal evidence had been eliminated, a finding in favor of thq validity of the second marriage of the caveatrix would still have been demanded.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Application, for administration—appeal, from Floyd superior court—Judge Wright. August 1, 1919.

M: B. Eubanks, for plaintiff in error.

Maddox & Boyle, contra.


author: Broyles, O. J.

text:
    10980.
    Ward v. Ward.
    Decided January 27, 1920.
    Application for administration—appeal; from Floyd superior court—Judge Wright. August 1, 1919.

      M. B. Eubanks, for plaintiff in error.

      Maddox &■ Boyal, contra.
   Broyles, O. J.

This case is controlled by the decision in Ward v. Ward (No. 10979), ante, 695. There are some assignments of error in this case which were not raised in that case, but, as they are not referred to in the brief of counsel for the plaintiff in error, they are treated as abandoned.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    10996
    Kimbrel v. The State.
    Decided January 27, 1920.
    Accusation of drawing check, without funds to meet it; from city court of Miller county—Judge Geer. October 1,1919.

      P. B. Rich, for plaintiff in error. N. L. Stapleton, solicitor, contra.
   Bloodworth, J.

1. “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712). “The amendment to the motion for a new trial complains solely of 'the exclusion of certain evidence, but it is not shown therein that this evidence was offered by the plaintiff in error.” Lowe v. Burden, 22 Ga. App. 679 (1) (97 S. E. 106). Under the above rulings the amendment to the motion for a new trial raises no question for adjudication by this court.

2. The evidence amply supports the verdict, which has the approval of the trial judge; no error of law appears; and the judgment is

Affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    10999.
    WALLS v. THE STATE.
    The exceptions based upon the testimony of the defendant’s wife as a witness for the State are not ground for a new trial, under the facts of this case. The other evidence demanded the verdict of guilty.
    Decided January 27, 1920.
    ' Accusation of pointing gun; from city court of Leesburg— Judge Martin. September 2, 1919.
    In an accusation based upon an affidavit of Sarah Walls, Zach Walls (her husband) was charged with having unlawfully pointed a shotgun at her. The evidence at the trial was as follows: Sarah Walls testified: She was the wife of defendant. On or about “the —day” of December, 1918, the defendant had a gun in his hands. She did not know what he did with it. It was nighttime and she was afraid and ran off. He was cursing and abusing her. Whether he did anything with the gun or not she did not know If he aimed a gun at her she did not know it. He did not shoot at her. This was in Lee county. On cross-examination she testithat she did not want to testify against her husband, that she did not want him convicted. Viney French testified that she was across the street on the night the crime was alleged to have occurred, and saw the defendant point and aim a shotgun at his wife, and that Sarah Walls turned and ran off.

      Lippitt & Burt, for plaintiff in error.

      J. B. Moyl, solicitor, contra.
   Bloodwokth, J.

The accused was convicted of pointing a gun at his wife. The special grounds of»the motion for a new trial are all based upon the fact that his wife was allowed to testify against him. In an explanatory note to his approval of the amendment to the motion for a new trial, the judge shows that he fully instructed the wife as to her rights under section 1037 of the Penal Code of 1910, and that thereafter she “answered all questions propounded freely and voluntarily, and was in no instance ordered by the court to make answer to any question propounded. On cross-examination by counsel for the accused the witness answered that she did not wish to testify against her husband, and did not want to see him prosecuted. Defendant’s counsel then moved to exclude the testimony of the witness, on the ground that she did not want to swear against- her husband.” Under this qualifying note there is u<~> merit in the amendment to the motion for a new trial. If, however, it was error to admit the evidence of the wife, the nncontradicted evidence of the other witness demanded a verdict of guilty.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    11015.
    Rhodes v. The State
    Decided January 27, 1920.
    Indictment for robbery; from Fulton superior court—Judge Humphries. October 18, 1919.

      Tillou Von Nunes, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, contra.
   Bloodworth, J.

There is nothing in either of the four special grounds of the motion for new trial that would require a reversal of the judgment; there is evidence to support the finding of the jury, which has the approval of the trial judge, and, as no error of law appears, the judgment is

Affirmed.

Broyles, O. J., and Lulce, J., eonour.


text:
    11029.
    SLEDGE v. THE STATE.
    Although it was testified that the alleged confession .of the defendant to the sheriff was made while the defendant was handcuffed and was bleeding from a blow on his head, struck by the sheriff, after he had been caught by the sheriff and another person, who had shot several times, it was further testified that no promises or threats were made, and that the confession was made freely and voluntarily; and the trial judge, under the ruling of the Supreme Court in the case of Smith v. State, 139 Ga. 230 (1) (76 S. E. 1016), did not err in admitting the confession in evidence, over the objection that it could not have been made freely and voluntarily, without hope of benefit or fear of injury.
    Decided January 27, 1920.
    Accusation of possession of intoxicating liquor; from city court of LaGrange—Judge Duke Davis. October 17, 1919.

      Henry Beeves, for plaintiff in error. L. L. Meadors, solicitor, contra.
   Bloodworth, J.

1. The amendment to the motion for a new trial contains only one ground, which is as follows: “Because the following evidence was illegally admitted to the jury by the court,' over the objection of the defendant, to wit: S. A. Smith, sheriff, and W. R. Fuller testified that after defendant ran, Jackson had shot several times, and, while defendant was handcuffed and was bloody and bleeding from a blow on his head, struck by Smith, the sheriff, he was asked by Smith, the sheriff, whose liquor it was, and he, Sledge, said it was his. Movant objected to the admission of said evidence at the time the same was offered, and did then and there urge the following objection thereto: that said testimony was illegal, and showed on its face that said alleged confession was made after Jackson had shot several times, after defendant had been struck on the head by the sheriff, while he was handcuffed and was bloody and bleeding on account of said blow, and after he had been caught by Smith and Jackson and brought back where he and Sivell were. Under said circumstances said alleged confession could not have been freely and voluntarily made, without the slightest hope of benefit or remotest fear of injury.”

On the trial of the case S. A. Smith, the sheriff, swore that he, “W. R. Fuller, and Mr. Jackson, a revenue man from Newnan, Georgia, went to where Will Sledge lives, and saw Will Sledge and a negro by the name of Sivell sitting out near the well, on a log of wood. Witness, Fuller, and Jackson drove around the house towards where Sledge and Sivell were, and when Sledge saw a car coming he jumped up and commenced to run, and when he did Jackson shot several times,—doesn’t know whether he shot at Sledge or shot into the ground. Witness and Jackson ran after Sledge and caught him, and was fixing to put handcuffs on him when Sledge jerked,back; witness struck him over the head with the handcuffs. That was what caused the blood on him when he was brought back to where he and Sivell were. There was a gallon jug of whisky, and a drinking glass near where they were sitting. After Sledge was caught and had been struck with handcuffs, and after Jackson had shot several times, I asked him whose liquor it was, and he said it was his. No promises or threats were made. His confession was voluntary. We then searched his smoke-house and found several empty bottles and jugs that smelled like they had had whisky in them. This was in Troup county, Georgia.” The evidence of W. R. Fuller was substantially the same as that of the sheriff. In reference to the alleged confession Fuller testified: “No promises were made (defendant), and no threats were made. The confession was made freely and voluntarily.” Under the ruling in Smith v. State, 139 Ga. 230 (1) (76 S. E. 1016), the court did err in admitting the evidence of which complaint is made.

2. There was ample evidence to support the verdict, and no error of law appears.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    11031.
    Evans v. The State.
    Decided January 27, 1920.
    Indictment for assault witb intent to murder; from Gordon superior court—Judge Tarver. September 27, 1919.

      Starr & Paschall, M. B. Eubanks, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Luke, J.

1. “Where the court gives in charge to the jury the principles of law with respect to the right of a'slayer to kill in order to prevent the commission of a felony, the failure to define the term' ‘felony,’ as used in such charge, in the absence of a request to give such definition, is not error requiring a new trial.” See Faison v. State, 13 Ga. App. 180 (3) (79 S. E. 39), and cit.; Smith v. State, 23 Ga. App. 541 (4) (99 S. E. 142).

2. The charge of the court wasjfull and fair and stated the contentions of the parties clearly, and, if the defendant desired more specific instructions upon the issues raised by his statement, he should have made a timely written request therefor. The evidence authorized the verdict, and it was not error, for any reason assigned, to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    11037.
    Pitts et al. v. Smith.
    Decided January 27, 1920.
    Trover; from Newton superior court—Judge Hutcheson. October 11, 1919.

      Rogers & Knox, for plaintiff in error.

      King & Johnson, contra.
   Broyles, C. J.

1. Neither of the excerpts from the charge of the court complained of, when considered in the light of the entire charge and • the facts of the case, contains material error.

2. The 4th and 5th special grounds of the motion for a new trial are merely amplification of the usual general grounds. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    11038.
    Henderson v. The State.
    Decided January 27, 1920.
    Indictment for violation of prohibition law; from city court of Blackshear—Judge Mitchell. October 4, 1919.

      W. A. Milton, for plaintiff in error.

      8. T. Memory, solicitor, E. A. Stephens, contra.
   Bloodworth, J.

1. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness, a new trial will not be granted.” Arwood v. State, 59 Ga. 391 (1); Key v. State, 21 Ga. App. 795 (1) (95 S. E. 269), and eit. Under the above ruling there is no merit in the grounds of the motion for new trial based upon alleged newly discovered evidence.

2. There is some evidence to support the verdict; the judge who saw and heard the witnesses approved the finding of the jury, and, as no error of law appears, this court cannot interfere.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Luke, J

text:
    11047.
    Hightower v. The State.
    Decided January 27, 1920.
    Conviction of manslaughter; from Fulton superior court—Judge Humphries. September 87, 1919.

      W. C. Munday, 8. C. Crane, for plaintiff in error.

      John A. BoyTcin, solicitor-general, E. A. Stephens, contra.
   Luke, J

1. “Where there is nothing in the evidence to indicate that the killing was not voluntary, ahd where no charge is requested on that subject, involuntary manslaughter is not an issue in the case, and no allusion should be made to it in charging the jury, even though the prisoner’s statement by indirection suggests such a theory.” Jackson v. State, 91 Ga. 272, (3) (18 S. E. 298, 44 Am. St. Rep. 22). Even if such a theory could have been predicated upon the statement of the defendant, it was not error to fail to charge upon the law of involuntary manslaughter, no request having been made for a charge upon this subject.

2. The evidence authorized the conviction of the defendant; and the chajge of the court, when read as a whole, is not subject to the criticism urged against it. Eor no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Broyles, C. J. Luke, J.,

text:
    11049.
    HENDERSON v. THE STATE.
    Decided January 27, 1920.
    Indictment for misdemeanor; from city court of Blackshear— Judge Mitchell. October 11, 1919.
    The indictment charged Tobo Henderson with having interrupted and disturbed a public school by loud talking and boisterous conduct, the school “being an assemblage and meeting lawfully and peacefully held for the purpose of scientific, literary, and social improvement.” On the trial it was testified, that in December, 1917, a play was given at night by the public school at Hoboken, in Pierce county; the play was given by the school children, and it was an assemblage of the school for the purppse of social improvement; there were recitations and music, and there was also a play with the school children as actors, and some of them had on masks, wigs, and different kinds of costumes, and they sold soda-water, peanuts, and other things for the benefit of the school. It was testified, that during the play the defendant Tobe Henderson came to the schoolhouse, put a sheet over himself, was running and dancing up and down the floor, attempted to grab some girls and pull them under the sheet with him, talked loudly, used such expressions as “Look out,” and “Get out of the way,” and his conduct was so rough and boisterous that it disturbed the assemblage and caused them to break up and go home before the entertainment was over. One of the witnesses smelled whisky on his breath. The school was not in session that night. Witnesses for the defendant testified, that while Tobe Henderson was dancing around on the floor, with the sheet over him, others were doing the same thing; they were having a masked parade or ball, and everybody was talking and laughing, eating peanuts, drinking soda-water and lemonade, dancing, playing, and having a gpod time; and these witnesses did not see him doing anything the others did not do; “it was a free for all good time, apparently;” there were no school exercises of any kind; it was only a public entertainment or ball, and nothing was said or done to disturb anybody; they stayed there until about eleven o’clock, and everybody left quietly and peaceably. The defendant, in his statement at the trial, said that he was invited by “the girls of Hoboken” to attend a masked party at the time referred to in the evidence, and went there with others, and when he got there they were all talking, laughing, and holloing and having a good time, and a certain girl (named) asked where ivas his mask, and said, “There is a sheet; wrap up in it,” and he did so and joined in the merrymaking, without saying or doing anything to disturb anybody, and behaved just as the others did until he left the place. It was testified that Henry Hamilton, one of the witnesses, had said that he saw Tobe Henderson get a sheet out of a car and take it into the schoolhouse with him. Hamilton, in his testimony, had denied making such a state? ment. The motion for a new trial was on the grounds that the verdict was contrary to law and to the evidence.
   Broyles, C. J.

The evidence, with the legal deductions and inferences therefrom, authorized a finding that the defendant violated section 424 of the Penal Code by wilfully interrupting and disturbing a meeting of a public school, lawfully and peacefully held in the schoolhouse for the purpose of social improvement. This is true although the meeting was an entertainment (consisting of recitations, music, and a “play,” by the pupils of the school), given at a time when there was no formal or ordinary session of the school itself for the purpose of instructing the pupils in their usual studies. See, in this connection, Gazaway v. State, 9 Ga. App. 194 (70 S. E. 978); Harwell v. State, 10 Ga. App. 115 (72 S. E. 936).

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., dissents.

James R. Thomas, for plaintiff in error.

S. Thomas Memory, solicitor, contrá.

Luke, J.,

dissenting. I do not agree with the majority view of this case. In my opinion the evidence does not authorize the conviction of the defendant of wilfully interrupting and disturbing a meeting of a public school. Section 424 of the Penal Code is in the following language: “Any person who shall wilfully interrupt or disturb any public school, private school, or Sunday-school, or any assemblage or meeting of any such school, lawfully and peacefully held for the purpose of scientific, literary; social, or religious improvement, either within or without the place where such school is usually held, shall be guilty of a misdemeanor.” The evidence in this case, in my opinion, does not authorize the finding that within the meaning of the statute there was a meeting of a school for the purposes pointed out in the statute. See Harwell v. State, supra. See also in this connection, Kendall v. State, 9 Ga. App. 794 (2) (72 S. E. 164).


text:
    11066.
    Davis v. The State.
    Decided January 27, 1920.
    Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. October 13, 1919.

      R. C. Johnson Jr., Cleveland & Goodrich, for plaintiff'in error.

      E. M. Owen, solicitor-general, contra.
   Bloodworth, J.

In this case the motion for a new trial contains only the usual general grounds. There is some evidence authorizing the verdict. The trial judge who sees and hears the witnesses has some discretion in granting or refusing a new trial when the verdict is apparently decidedly against the weight of the evidence, but whenever there is any evidence, however slight, to support a verdict which has the approval of the trial judge, this court is without authority to control the judgment of the trial court. Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    10258.
    WRIGHT v. SALVATION ARMY.
    1. The execution issued by the city against the property described therein as belonging to O. W. Wright and as “the property fronting 24 feet at 502 Broad street” was not void because of indefiniteness of description of the property, under the facts of this case.
    2. The evidence authorized a recovery for breach of warranty by reason of the lien of the city against the property sold by the defendant to the plaintiff.
    3. No material error of law appears to have been committed on the trial, and the judgment rendered was not erroneous for any reason assigned.
    Decided January 28, 1920.
    Action for breach of warranty; from city court of Floyd county —Judge Nunnally. November 12, 1918.
    The Salvation Army, a corporation, sued C. W. Wright for damages in the sum of $300, alleging, in substance, that in December, 1910, the plaintiff purchased, from the defendant a certain lot of land situated in the City of Eome, Georgia, to which the defendant executed warranty deeds to the plaintiff, dated December 29, 1910, and August 16, 1912, thereby warranting the title to the property as free from the claims of any one whomsoever; that on May 7,1919, the City of Eome issued a fi. fa. against the said C. W. Wright and the said property for $188.49 principal, and interest thereon and costs, and the said property was levied upon and on the first Tuesday in September, 1915, was sold by the City of Borne and bought in by the city for $300; that the plaintiff, to lessen its damage as much as possible, has agreed to buy the property from the city for said sum $300, as provided by law for the redemption of property sold for taxes; and that the defendant has breached his contract of warranty, and the breach has injured and damaged the plaintiff in the sum of $300, for which judgment is prayed. Copies of the deeds and fi. fa. were attached to the petition. The land described in the deeds was a lot fronting 24 feet on the east side of Broad street in the City of Borne, and running back 90 feet, on which a certain building was situated, and the purchase-price was $3,000. The fi.fa. was for an assessment for street paving. The defendant in his answer denied the allegations of the petition. The case was tried by the court without a jury, and judgment was rendered against the defendant for $273 as principal, and $60.05 as interest to November 12, 1918, the date of the judgment. In the defendant’s bill of exceptions this judgment “is assigned as error upon the following grounds, to wit: 1st. Because judgment is contrary to law. 2d. Because it is contrary to evidence and without evidence to support it. 3d. Because plaintiff in error contends that the evidence shows that there has been no evidence of sale by the marshal of Borne, as alleged in the petition, and thereby no sale made, and there could be no recovery under suit as brought. 4th. Because the evidence showed that no sale had ever been made by the marshal of the City of Borne, as alleged in the petition, in that no deed had ever been executed by the marshal to the City of Borne, or by the City of Borne to the Salvation Army, as alleged in the petition. 5th. Because the court erred in admittiffg in evidence the evidence of Hugh McCrary that the property in controversy was sold by the marshal of Borne on the first Tuesday in September, 1915, over the objection of defendant’s attorney that the same was incompetent, and that a sale could only be shown by the marshal’s deed conveying property at marshal’s sale. 6th. Because unquestioned evidence was that the fi. fa. under which the alleged sale was claimed had been materially altered after the same was issued, by writing therein in pencil description of property levied upon, and further because the execution as originally issued without this pencil description of the property was a nullity, in that it was an excution in rem without giving any description of property sought to be subjected thereto.” The fi. fa. as issued directed that “of the goods, chattels, lands and tenements of C. W. Wright, and especially of the property fronting 24 feet at 502 Broad street,” the marshal cause to be made the amount stated. From the evidence it appeared that pencil additions to the description were afterwards made by some person other than the clerk of council who issued the fi. fa. In the brief of counsel for the plaintiff in error it was contended that the fi. fa. was void because of in definiteness of description of the property; that a marshal’s sale could be shown only by a deed executed by the marshal, and that “the plaintiff alleged that the breach occurred not by reason of an outstanding fi. fa. of which it had no notice, but by reason of the fact that the property had been levied upon and sold by the marshal.”

      M. B. Eubanlcs, for plaintiff in error.

      Denny^S Wriglit, contra,
    cited: 96 Ga. 360 (2), 364; 131 Ga. 347; 7 Ga. 228 (2); 132 Ga. 349; 135 Ga. 628 (4). See 74 Ga. 793 (1).
   Broyles, C. J.

0. W. Wright sold under a warranty deed certain real property in the City of Borne, Georgia, to the Salvation Army. Prior to this sale the city issued an execution against the property for its proportionate cost of street improvements, and after the sale this execution was levied upon the property, and was paid off by the Salvation Army. Suit was subsequently brought by the Salvation Army against Wright, to recover the amount so paid, with interest, and the judge, sitting without the intervention of a jury, rendered a judgment in favor of the plaintiff and against the defendant for the principal sum of $273, and $60.05 interest, and the defendant excepted. *

The property was described in the execution as belonging to C. W. Wright, and as “the property fronting 24 feet at 502 Broad street.” Upon the trial the following undisputed facts were shown: The City of Borne had a regular system of numbering streets, and Broad street was one of the streets numbered. 502 Broad street was a definite piece of property in the City of Borne, and there was no other No. 502 Broad street in the city. The property at 502 Broad street extended back about 90 feet and contained a two-story brick building, and immediately in the rear of this property the defendant owned other realty, which was not separated from this property by any fence, enclosure, or other physical evidence of demarcation. All the necessary conditions precedent to the issuance of the fi. fa. had been complied with, in accordance with the laws and the charter of the City of Rome. The property was duly advertised for sale, and, in accordance with the advertisement, was sold by the marshal to the City of Rome, although no deed was made by the marshal to the city, the usual custom being not to execute such a deed until the end of the year, when the redemption period had expired. Subsequently the Salvation Army paid off the fi. fa. When the fi. fa, was issued and demand was made on Wright for payment he refused to pay it, and he verbally so notified the Salvation Army when he sold it the property, before he executed the warranty deed to it.

In our opinion the description of the property in the fi. fa. was not so indefinite as to render the fi. fa. void. See, in this connection, Collier v. Vason, 12 Ga. 441; Oatis v. Brown, 59 Ga. 711; Longworthy v. Featherston, 65 Ga. 165 (1), 166; Collins v. Boring, 96 Ga. 360 (23 S. E. 401); Hawkins v. Johnson, 131 Ga. 347 (1) (62 S. E. 285).

It appears undisputed that Wright had actual notice of the issuance of the fi. fa., and at least constructive notice of the levy and of the duly advertised sale of the property.

The judgment rendered by the court was authorized by the evidence, and no material error of law appears to have been committed upon the trial. Substantial justice has been done, and for no reason assigned is a new trial required.

Judgment affirmed.

Lulce J., and Bloodworth, J., concur.


text:
    10969.
    SOUTHEASTERN FAIR ASSOCIATION v. WONG JUNG.
    The alleged unlawful and unprovoked assault by the defendant’s agent or servant is not alleged to have been made at the command or with the assent of the defendant; and the general allegations to the effect that the assault was within the range and in the prosecution of the defendant’s business, and within the scope of the employment of the agent or servant, are mere conclusions, not sustained by any facts set forth in the petition. The court erred in overruling the general demurrer to thg petition.
    Decided January 28, 1920.

      (Certiorari was granted by the Supreme Court.)
    Action for damages; from city court of Atlanta—Judge Eeid. September 25, 1919.

      Mayson & Johnson■, W. D. Ellis Jr., for plaintiff in error,
    cited: Park’s Code, § 3603; 6 Ga. App. 470, 471; 145 Ga. 561; 113 Ga. 1105; 97 Ga. 56; 121 Ga. 484, 486; 113 Ga. 414, 118 Ga. 340 (distinguished).

      B. II. & Ilarvey Hill, Fred E. Harrison, contra,
    cited: 118 Ga. 340, 344; 20 Am. & Eng. Enc. L. (2d ed.) 169; 1 Add. Torts (Wood’s ed.) sec. 36; 1 Jagg. Torts, 251; 40 Am. Rep. 224.
   Broyles, C. J.

This was a suit for damages based upon the alleged willful homicide of the plaintiff’s husband by an employee of the defendant. The petition as amended showed: that the defendant, the Southeastern Fair Association, was a corporation operating for pecuniary gain a fair in Fulton county, and that it let out for hire various concessions upon its grounds, such as restaurants, cafés, and soft-drink stands; that it had rented for a large sum a concession to the plaintiff’s husband (a Chinaman), and had located it at a certain place on the fair grounds; that one McDonald was employed by the defendant as its manager of concessions, and that as such manager, and as servant and agent of the defendant, acting for and in behalf of it, he ordered the plaintiff’s husband to change the location of his concession, and, upon the latter’s refusal to do so, McDonald struck him on the head with an iron instrument, thereby killing him. The petition further alleged that this assult was without provocation or justification, and was wanton, wilful, and unlawful, but was within the scope of McDonald’s employment as manager of concessions, and was committed for the purpose of forcing the concessionaire to move his concession, and was for the purpose of accomplishing in an unlawful manner the business of the corporation which had been entrusted to him.

Section 3603 of the Civil Code of 1910 is as follows: “The principal is not liable for the wilful trespass of his agent, unless done by his command or assented to by him.” Section 4413 reads as follows: ‘Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” These two code-sections should be construed together, so as to harmonize them and allow both to remain of force, in the eases to which they are applicable. Western & Atlantic Railroad v. Turner, 72 Ga. 292 (2-a) (53 Am. Rep. 842).

The petition in the instant ease shows that the agent or servant of the defendant committed an unprovoked, wanton, wilful, and unlawful assult upon the plaintiff’s husband, which caused his death, but it fails to show that it was done by the defendant’s command or that it was assented to by the defendant, or that it was in the prosecution or within the scope of the master’s business. The general allegations in the petition to the effect that the assault was in the prosecution and within the range of the master’s business and within the scope of McDonald’s employment are mere conclusions of the pleader and are not sustained by any fact or facts set forth in the petition. When the petition is construed as a whole, and most strongly against the plaintiff, it shows that the assault by McDonald was not committed for the purpose of accomplishing his master’s business by having the Chinaman’s concession relocated, but merely that it was made to punish the Chinaman for the “back talk” which the petition shows he made when McDonald notified him. that his concession must be relocated. In making this wilfull and unnecessary assault, it appears that McDonald temporarily forgot his master’s business, stepped aside therefrom, and made it a personal matter with the Chinaman, and inflicted the beating to relieve his own anger and ruffled feelings. If McDonald had attempted physically to remove the concession to another location on the fair grounds (conceding that he had implied authority to do so), and the Chinaman by physical force had attempted to prevent the removal, and McDonald had then assulted him for the purpose of making him desist from his interference, then, even though McDonald used more force than was necessary, it would be properly held that the assault, although criminal, in that more force than necessary was used, was nevertheless within the range of his employment, and was committed for the purpose of accomplishing the business of his master which had been entrusted to him. See, in this connection, Southern Ry. Co. v. James, 118 Ga. 340 (45 S. E. 303, 63 L. R. A. 257). It is, however, difficult to see how such a wilful, unprovoked, unnecessary, and disconnected assault as the one now under consideration could ever be! held to be within the scope of the servant’s employment, unless- it was directed by the master or assented to-by him, it not appearing that the servant had authority, express or implied, to use any degree of physical force whatever to carry out his master’s business.

This ruling is not in conflict witht the decisiop in Southern Ry. Co. v. James, supra, cited and relied upon as controlling in this case by the learned counsel for the defendant in error. In that ease the servant was a nightwatchman employed by the railroad company for the special purpose of arresting all trespassers upon the company’s property. He arrested James as a trespasser, and was taking him to jail, when J ames broke away and fled; the watchman shot and wounded him, and J ames sued the railroad company for damages. While the Supreme Court in that case discussed generally the question of a master’s liability for his servant’s tort, the real point decided was that the railway company was liable for the criminal shooting of the trespasser by its servant, for the reason that he had been employed by the company for the special purpose of arresting and imprisoning trespassers, and, in this connection, had been given orders by the company which implied the use of force and violence to others, and which left it to his discretion to decide when the occasion required force, and the kind and extent of force to be used. That case is clearly distinguishable from the instant one. See, in this connection, 26 Cyc. 1539, 1540, 1541, 1542, and authorities there cited.

In the absence of anything in the petition showing that a duty rested upon the defendant to protect its concessionaires from violence, or that it was within the defendant’s authority, or within the range of its business, to force a concessionaire to relocate his concession after he had paid for the privilege of operating it at the place where it had been located by the proper agents of the defendant, or that McDonald had any authority, by virtue of his employment as manager of concessions, or otherwise, to order a concessionaire to relocate his concession, and especially to use actual physical force to compel him to do so, it does not appear that the wilful, unprovoked, and murderous assault committed' by McDonald was within the range and scope of the defendant’s business, or McDonald’s employment. If it were, then a real-estate agent, employed by the owner of a house to collect rent therefor, who wilfully killed the tenant for his mere refusal to pay the rent, would be acting within the scope of his employment, and the property owner would be liable in damages for this wilful and unauthorized act of his agent; or if a merchant sent a professional bill-collector to collect an account past due, and the collector wilfully and wantonly killed the debtor upon his mere refusal to pay the account, then the merchant would be liable civilly for this act of his agent. Such rank injustice can not be the law. The defendant’s agent, McDonald, is clearly liable, both civilly and criminally, for his tort, but, under the facts of the case as shown by the amended petition, the defendant is not responsible therefor, either legally or morally. It follows that the court erred in overruling the defendant’s general demurrer to the amended petition.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    11014.
    Hill v. The State.
    Decided January 28, 1920.
    Certiorari; from Putnam superior court—Judge Park. September 20, 1919.
    Yiola Hill was convicted in the county court under an indictment which charged that she "did, by cursing and using profane and obscene language [and] by being intoxicated, interrupt and disturb a congregation of persons lawfully assembled for divine service at Flat Rock Baptist Church.” She sued out certiorari, alleging that the judgment was contrary to law and the evidence. The judge’s answer was as follows: “Answering the certiorari in the above case, I have this to say: • The witnesses Burl Briscoe and Jesse Williams both swore that Yiola Hill was drunk. They both swore that she rode up immediately in front of the church, my recollection is not more than 20 feet from the door, where she said in a loud voice,4 I’m drinking my own liquor to-day and don’t care a damn, who knows it;’ that her husband tried to get her ta leave the church, that she refused to go, and he shot her. I believed beyond a reasonable doubt, and still believe, that she and her husband were both drunk, and that each one of them disturbed the congregation assembled for divine service, especially those people who were standing outside the church, near the door. These two witnesses testified that her conduct, and owing to her intoxicated condition and loudness of her voice, must have disturbed people in the church, that there were some standing near the door on the outside of the church that were obliged to have been disturbed. The testimony of Dr. Griffith, Jeff Lewis, and Yiola Hill’s statement is about right.” From the petition it appears that Dr. Griffith testified that soon after the shooting referred to, he cut a bullet from Yiola Hill’s arm, and she did not appear to have been drunk. Jeff Lewis testified thajt she was not drunk and did not disturb any one, and did not interrupt or disturb in any way the services that day, and that when she was shot she was in the road about 50 or 60 feet from the church. The defendant, in her statement, denied that she was drunk, or interrupted or disturbed any part of the congregation.
   Luke, J.

In order to authorize the conviction of one charged in an indictment with having disturbed a congregation of persons lawfully assembled for divine service, by cursing, by using profane and obscene language, and by being intoxicated, it is necessary to show that there was a lawful assembly of persons engaged in divine service as alleged in the indictment, and that, in the manner charged, some person of the congregation so assembled was actually disturbed. The evidence in this case did not authorize the conviction of the defendant. It was error for the court to overrule her certiorari and not grant her a new trial.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J,, concur.

Davidson, Callatvay & DeJarnette, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.


text:
    11021.
    Sapp v. The State.
    Decided January 28, 1920.
   Luke, J.

Under the ruling in Griffin v. Sisson, 146 Ga. 661 (92 S. E. 278), a court, to be like the city court of Atlanta or Savannah, must not only be located at a county seat which has been incorporated as a city, but must have jurisdiction to try criminal cases below the grade of felony and civil jurisdiction over a portion or all of those classes of cases the jurisdiction of which is not by the constitution exclusively vested in some other court, with territorial jurisdiction in both civil and criminal cases throughout the limits of the county, or jurisdiction in one class of cases limited to the city, and in the other class coextensive with the limits of the county, with a jury of twelve to try all cases, both civil and criminal, if a trial by jury is demanded. In the instant case it appears that the city criminal court of Alma has no civil jurisdiction whatever; therefore a writ of error from that court will not lie to this court, notwithstanding a contrary provision in the act establishing the city criminal court of Alma.

Writ of error dismissed.

Broyles, O. J., and Bloodwortb, J., concur.

Accusation of misdemeanor; from criminal court of Alma— Judge Boatright. July 18, 1919.

Hartwell L. Williams, for plaintiff in error.

H. J. MacIntyre, solicitor, contra.