text:
    9912.
    Witherington v. Laurens County Farmers Co-Operative Warehouse Co.
   Jenkins, J.

1. While the general rule is that a warehouseman, as a depository for hire, will not be allowed to set up an adverse title in another as an excuse for his failure to deliver the property to his bailor on demand, and while it is incumbent upon the warehouseman to show the exercise of ordinary diligence, where such failure to deliver has been shown, still it is • a general rule that 'a bailee, in an action against him by the bailor for the recovery of prdperty deposited with him, may set up as' a defense that the property was taker! from him upon legal process fair on its face; provided that the bailee did not fail in any duty in connection therewith which he properly owed to his bailor, and that the bailor, if not a party to that proceeding, had been given full and ample notice thereof. Thus, in an action by a bailor against his bailee, where the bailee shows that a suit for the property had been instituted by another, and that he promptly notified his bailor of the institution of that action, and' was proceeding to defend therein the right and claim of his bailor to the property, the fact that, he then proceeded, with thei knowledge of his bailor, to surrender the property to the levying officer, in accordance with one of his options under the law in such cases, would not amount to a conversion on his part such as would render him liable in an action of trover instituted by his bailor, but his course and conduct as outlined would be sufficient to support a find- • ing in the bailee’s favor that he had exercised the degree of ordinary ■ diligence required of him. See Jensen v. Eagle Ore Co., 47 Colo. 306, as reported in 33 L. R. A. (N. S.) 681, with general note (107 Pac. 259, 19 Ann. Cas. 519) ; Smith v. Frost, 51 Ga. 337; Nicholas v. Tanner, 117 Ga. 223, 227 (43 S. E. 489). See also Central Bank v. Georgia Grocery Co., 120 Ga. 883 (48 S. E. 325) ; Delaney v. Sheehan, 138 Ga. 510, 514 (75 ,S. E. 632).

Decided January 16, 1919.

Trover; from city court of Dublin—T. E. Hightower, judge pro hac vice. June 12, 1918.

Witherington bought of Ilodges two bales of cotton and stored them for hire with the warehouse company. Subsequently the warehouse company was sued in bail-trover for the cotton by Summerlin, who claimed to be the true owner and entitled to possession of it by reason of the relationship of landlord and cropper existing between himself and Hodges. The warehouse company notified Witherington of the suit, and in his presence surrendered possession of the cotton to the sheriff, and as defendant therein it proceeded to defend the interests of Witherington. While the suit was still pending, Witherington made demand upon the warehouse company for the cotton, and upon its failure to comply with the demand brought the present action. The verdict was for the defendant. In. the plaintiff’s motion for a new trial,'the refusal of which is assigned as error, it is alleged that the court erred in admitting in evidence Summerlin’s suit in bail-trover, referred to above, over the objection that it was irrelevant. In ground 2 of the amendment to the motion a like objection is made as to the petition and answer in a suit of Summerlin against Hodges, admitted in evidence. In another ground it is alleged that the court erred in charging the jury: “If you believe, from the evidence, that the sheriff seized the cotton in question under bail-trover proceedings and valid process, and that the plaintiff, J. H. Witherington, knew of such seizure and was notified of such seizure by the warehouse company, it would be your duty to find for the defendant. I charge you further that if you believe the sheriff seized the cotton in question under valid process, and the surrender of the cotton was made by the warehouse company in obedience to such process, such surrender on the part of the warehouse company would have been legal, if such company immediately notified J. H. Withering-ton. I charge you that when bail process is served upon a defendant, he has the legal right to surrender the property instead of giving bond for the same.”

Larsen & Oroclcett, for plaintiff. R, Bari Gamp, for defendant.

2. The admission of the testimony complained of in ground 2 of the amendment to the motion for a new trial was harmless; and the remaining grounds of the motion are without substantial merit.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    9994.
    Bennett v. Lifsey.
    Decided January 16, 1919.
    Trover; from Crawford superior court—Judge Mathews. June 19, 1918.

      R. H. Culverhouse, L. D. Moore, for plaintiff in error.
   Luke, J.

The evidence in this ease, though conflicting, authorized the verdict, which has the approval of the trial judge. The charge of the court, when considered as a whole, was full, fair, and presented the issues made by the pleadings. Bor none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Broyles, P. J.

text:
    9646.
    Suttles v. Parrish et al.

    Decided January 23, 1919.
    Complaint; from Pulton superior court—Judge Ellis. April 4, ,1918. '

      Joseph W. & John D. Humphries, for plaintiff in error.'

      Bachman & Simmons, Douglas & Douglas, contra.
   Broyles, P. J.

1. Under the facts of the ease, the excerpts from the charge of the court, complained of in the special grounds of the motion for a new trial, contain no error.

2. The verdict was amply authorized by the evidence, and the- court did not err in overruling the motion for a new tidal.

Judgment affirmed.

JBloodworth and Stephens, JJ., concur.


text:
    9721.
    Southern Railway Company el al v. Massee & Felton Lumber Company.
   Broyles, P. J.

1. The petition as amended showed an action ex contratu against the defendant railway company for its failure to deliver at Toccoa, Georgia, property which had been delivered to it at Macon, Georgia, for shipment; and the courts of Bibb county had jurisdiction of the suit. Central Railroad Co. v. Brunson, 63 Ca. 505; Albany & Northern Ry Co. v. Merchants &c. Bank, 137 Ca. 391 (73 S. E. 637); Friedman v. Seaboard Aid Line Ry., 124 Ca. 472 (52 S. E. 763) ; Wright v. Southern Ry. Co., 7 Ga. App. 542 (67 S. E. 272).

2. The petition as amended was not subject to, any ground of the demurrer interposed.

3. A bill-of-lading stipulation requiring the surrender of the original order bill of lading, properly endorsed, before the delivery of the shipment, does not operate solely for .tlie protection of the- carrier. This provision is likewise for the protection of the shipper, and' prohibits the carrier from delivering the property until the bill of lading is properly endorsed. First National Bank v. Oregon-Washington R. &c. Co., 25 Idaho, 58 136 Pac. 798); Judson v. Minneapolis &c. R. Co., 131 Minn. 5 (154 N. W. 504).

4. Where an “order-notify” bill of lading contains a provision requiring the surrender of the original order bill of lading, properly endorsed, and the shipper, by mistake, sends the original bill of lading (instead of the memorandum bill of lading) direct to the “order-notify” party, but sends it unendorsed, the carrier is not thereby relieved from requiring such endorsement before' delivering the shipment to the “order-notify” party; and where, under such circumstances, the carrier so delivers the property, without requiring such endorsement, and the “order-notify” party obtains the shipment, and subsequently becomes insolvent, without having paid the purchase-price of the property, the principle of law that where one of two innocent persons must suffer for the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss, is not applicable. 'The antecedent error of the shipper in sending the original bill of lading to the “order-notify” party did,not put it in the power of that party to x inflict the injury, as its possession of the unendorsed bill of lading did not vest it with any apparent right to the property. The loss resulted from the negligence of the carrier in failing to require proper endorsement of the bill of lading. Weyand v. Atchison &c. Fé Ry: So., 75 Iowa, 573 (39 N. W. 899, 1 L. R. A. 650, 9 Am. St. R. 504).

5. The Massee & Felton Lumber Company at Macon, Ga., delivered to the defendant railway company a car of lumber consigned to the qrder of the shipper at Toccoa, Georgia, with instruction to notify the Georgia Furniture Company, at the latter place. An “order-notify” bill of lading was executed in triplicate and signed by both the shipper and the railway company, and contained the following provision: “The surrender o'f this original order bill of lading properly endorsed shall be required before the delivery of the property.” The three copies of the bill of lading were practically the same, with the exception that one was headed “Order Bill of Lading—Original,” another was headed “Memorandum Bill of Lading,” and the third' was headed “Shipping Order.” The original and memorandum bills of lading were delivered by 'the railway company to the shipper, and the shipping order was retained by the railway company. Through an error of a clerk in the office of the lumber company, the original bill of lading, unendorsed, was . mailed directly to the Georgia Furniture Company at Toccoa (the “notify party” in the bill of lading), and thi> memorandum bill of lading, endorsed on its back by the lumber company, was attached to a draft by that company on the furniture company, for the purchase-price of the car of lumber, and the draft with the memorandum bill of lading, so endorsed, was deposited by the lumber company, in a bank at Macon, Georgia, and transmitted by that bank to a bank at Toccoa, Georgia, the residence of the furniture company. The defendant railway company had no actual knowledge of the drawing or forwarding of this draft. The Georgia Eurniture Company, on receiving the original bill of lading, carried it to the agent of the Southern Railway Company at Toceoa; and on demand of the furniture company upon the agent and the presentation and surrender of the original bill of lading, unendorsed, the lumber was delivered by the railway company to the furniture company. The furniture company was put in bankruptcy after the delivery of the lumber to it by the railway company. The draft attached to the memorandum bill of lading was never paid, and, together with this memorandum bill of lading, was returned to the lumber company, which has never been paid anything by the Georgia Eurniture Company for .the lumber. Held, that the railway company, in delivering the lumber to the furniture company, upon its presentation of the original bill of lading, unendorsed, breached its contract with the shipper and became liable to it in damages for the value of the lumber. American National Bank v. Lee, 124 Ga. 863 (53 S. E. 268) ; Southern Railway Co. v. Strozier, 10 Ga. App. 157 (73 S. E. 42); Weyand v. Atchison &c. Ry. Co., supra; Douglas v. People’s Bank, 86 Ky. 176 (5 S. W. 420, 9 Am. St. R. 276) Killingsworth v. Norfolk & Southern R. Co., 171 N. C. 47 (87 S. E. 947) ; First National Bank R. Oregon-Washington R. &c. Co., supra; Judson v. Minneapolis &c. R. Co., supra; Arkansas Southern Ry. Co. v. German National Bank, 77 Ark. 482 (92 S. W. 522, 4 L. R. A. (N. S.) 649, 113 Am. St. R. 180).

Decided January 23, 1919.

Certiorari; from Bibb superior court—Judge Mathews. April 12, 1918.

Harris, Harris & Witman, Mallary & Wimberly, J. M. Papper, for plaintiffs in error.

Hardeman, Jones, Parke & Johnston, Harry S. Strozier, contra.

6. Under the foregoing rulings, the court did not err in overruling tfie certiorari.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Bboyees, P. J.

text:
    9739.
    Liberty Lumber Company v. Enecks.
   Bboyees, P. J.

1. In an ordinary claim ease the claimant is entitled to a verdict in his favor if he shows title in himself, and the question whether he is liable to pay the debt on which the execution is founded is not properly triable in the ease. The question is not as to the claimant’s liability for the debt, but as to his title to the property levied on. By filing his claim he asserts merely that the property is not subject to sale under the execution. In such a case, in the absence of a suitable amendment or of proper equitable pleas, the plaintiff in fi. fa. can not introduce evidence which tends to show merely that in good conscience and equity the claimant is liable for the debt. Civil Code, 5407-8-9-12; Gormerly v. Chapman, 51 Ga. 421; Hamberger v. Easter, 57 Ga. 72; Ford v. Holloway, 112 Ga. 851 (38 S. E. 373); Southern Mining Co. v. Brown, 107 Ga. 264, 269 (33 S. E. 73).

Decided January 23, 1919.

Levy and claim; from Screven superior court—Judge Hardeman. March 21, 1918.

M. R. Lufburrow, for plaintiff in error.

2. Under the foregoing ruling, the court erred, in admitting, over the claimant’s timely and appropriate objections, the evidence set forth in the first special ground of the motion for a new trial;

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Broyees, P. J.

text:
    9870.
    Petty v. The State.
    Decided January 23, 1919.
    Conviction of manslaughter; from Cobb superior court—Judge Morris. May 11, 1918.

      Mozley & Gann, George D. Anderson, for plaintiff in error.

      Herbert Clay, solicitor-general, contra.
   Broyees, P. J.

1. While some of the excerpts from the charge of the court complained of are subject to slight criticism, none of them, when considered in connection with the remainder of the charge and in the light of the facts of the case, contains reversible error.

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

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Bloodworth, J.

text:
    10104.
    CRUMLEY v. THE STATE.
    Decided January 23, 1919.
    1. Refusal to grant a new trial because of alleged' newly discovered evidence, which in a counter-showing is contradicted by other evidence, is a matter as to which this court can not hold that there was an abuse of the ■discretion of the trial judge.
    2. Declarations of the deceased, to- the effect that he was shot by the defendant, and that the defendant killed him for nothing when he was trying to get a gun away from the defendant, were, under the circumstances shown by the evidence, admissible as a part of the res gesta;.
    3. In the charge of the court as to the weight to be given by the jury to alleged declarations of the deceased there was no error harmful to thé defendant.
    Conviction of manslaughter; from Wilcox superior court—Judge Crum. September 3, 1918.

      The charge referred to in. the decision was as follows: “ Certain evidence as to alleged declarations of the deceased in this ease has been admitted for yonr consideration. Those alleged declarations are not admitted for your consideration as dying statements, and should not be considered by you as such. However, a section of the code of this State declares that declarations accompanying an act, or so nearly conneetéd therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res geste. Before you should consider or give weight to such declarations, you should first find from the evidence in the ease that such declarations, if made at all, were declarations accompanying the particular act under investigation, or were so nearly connected therewith in time as to be free from all suspicion of device or afterthought.”

      H. A. Hodges, Hal Lawson, for plaintiff in error.

      J. B. Wall, solicitor-general, M. B. Gannon, Max E. Land, contra.
   Bloodworth, J.

“The State having made a counter-showing to the alleged newly discovered evidence, this court can not say that the trial judge abused his discretion in overruling the grounds of the motion for a new trial based on such evidence.” Champion v. State, 21 Ga. App. 656 (4), and cit. (94 S. E. 828); Cohen Co. v. Brown, 21 Ga. App. 668 (94 S. E. 811); Blount v. State, 18 Ga. App. 204 (4) (89 S. E. 78); Bradford v. Brand, 132 Ga. 642 (64 S. E. 688).

Complaint is made that the only eye-witness to the difficulty which resulted in the homicide was allowed to testify that, after the shooting, “Mr. Crumley turned and left and went back across the bridge, the other way from where the shooting was done. I went down there then to where Mr. Fitzgerald was. He didn’t get up; he still lay right there. When I was looking at the place where he was shot, Mr. Fitzgerald told me that he was shot bad, that he was killed, and he told me to go and get him some water, and T went and got him a hat of water and gave it to him, and he had taken a bad spell of throwing up, and after that it seemed' like he revived up a little from what he was. When I was talking to Mr. Fitzgerald about I hoped he would be all right he says, No, he has killed me;’ and he says, ‘You kpow he has killed me for nothing,’—-said ‘when I was trying to get that gun away from him.’” It appears from the evidence in the record that at the time of the shooting the witness was about 25 feet from the participants; that the shooting occurred on the road near a bridge over a creek where there is a “fill;” that after the last shot the deceased fell and rolled down the embankment, and then occurred what is quoted above. It is true that the evidence does not show how long -in minutes after the shooting the words complained of were uttered by the deceased, but it does appear that they were uttered almost immediately thereafter, and while his wound was being examined b.y the witness; and they seem to have been “natural and spontaneous”, a part of the transaction, “free from.all suspicion of device or afterthought,” “an outburst of the feelings, and not a mere narration of- a past event.” In the decision in the ease of Louisville etc. Ry. Co. v. Buck, 116 Ind. 566 (19 N. E. 453, 2 L. R. A. 520, 9 Am. St. R. 883), it is.said: “It is not always easy to determine when declarations having relation to' an act or transaction should be received as part of the res gestee, and much difficulty has been experienced in the effort to formulate general rules applicable to the subject. This much may,-however, be • safely said: .that declarations which were the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntarily and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which they illustrate and explain, and were made under-such circumstances as necessarily to exclude the idea of design or deliberation, must, upon the clearest principles of justice, be admissible as part of the act or transaction itself.” To support this proposition a large number of cases are cited. The courts of final resort in a number of States have held that a condition of severe bodily injury, unmitigated by. medical or other attendance, makes it probable that a statement made while this condition continues-is spontaneous. We therefore hold that the court did not err in -allowing in evidence, as a part of the res geste, the statements of the deceased, of which complaint , is made, especially under the charge of the court in reference thereto.“When the precise time which intervened between the homicide and the statements can not be ascertained, it may be left to the jury to determine whether they were made without premeditation or artifice, and without a view to the consequences, or were merely made to color the transaction.” Hart v. Powell, 18 Ga. 635. That decision, was followed and cited in City of Galveston v. Barbour, 62 Tex. 172 (50 Am. K. 519).

The statements of the deceased having been properly admitted in evidence, the weight to be given them is a matter for determination by the jury, and there was no error harmful to the defendant' in the excerpt from the charge complained of in the 6th ground of the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Per Curiam.

text:
    10109.
    Vickers v. The State.
    Decided January 23, 1919.
    Accusation of misdemeanor; from city court of Hazlehurst— Judge Knox. August 29, 1918.
    The accusation was in two. counts, charging respectively the offenses of keeping a lewd 'house and keeping a disorderly house, as defined in sections 382 and 383 of the Penal Code (1910). There was a general. verdict of guilty. From the evidence it appeared that the defendant was a farmer, living on his farm with his family, in which were two daughters. He lived there three months, and while he lived there the house had the reputation of being .a lewd house; but the witnesses testified that they did not see any act of lewdness there. “During all the time he staid there a great many automobiles with men in them went there; day and night. It was a continual thing. ” Some of the men were married and some single. Sometimes the cars would run back and forth there most of the night. Seven automobiles'were seen standing in front of the gate one morning about sunup. It was testified that two men went there one night, and after they had been in there a little time the witness “saw a light in the house, and they stayed there a little while and the light went out, and they came out and got in the automobile and went away.” Another witness testified: “I took King and Highsmith out there. They went in and sat down on the porch and talked to tbs' girls for a while, then Highsmith and one of the girls went out into the yard and went around the house and came in the back way; they tipped across the porch and'went into a back room. Then King and the other girl got up and went out into the yard and went around behind the house. Both couples were gone about fifteen or twenty minutes, and when they came back the boys said they were ready to go, and we left. It was at night and dark.” A few nights later the witness saw two men lying on a bed in the house, drunk, and they asked if he would come and get them in his car about daylight the next morning. One of these men was seen at another time in a swing on the porch with his arm around the back of one of the girls. Men would sometimes take the girls out in cars. Some of the men who went there appeared to be drunk. Cursing and loud talking by men leaving the house and by men'going to it were heard in the neighborhood. Pistol shooting was also heard there. The cursing and pistol shots caused a neighbor to leave her home one night because she was afraid. Fourteen of the neighbors went to the house on the third day after the defendant had moved into it and told him that too many people visited there, and they could not put up with it in that community, and that he would have to control it or move, and he said he would like to control it and would like to have them help him control it. No testimony was introduced for the defendant. His statement at the trial was that several people came to his house, but they did not mistreat him, and if his girls did wrong, or anything wrong was carried on around his place, he did not know of it, and he did the best he could.
   Per Curiam.

1. There is no merit in the special ground of the motion for new trial. The evidence, while somewhat weak, authorized the defendant’s conviction on both counts of the accusation, and, the verdict having been approved by the trial judge, this court is without authority to interfere.

2. As to the sufficiency of the evidence to convict under the first count of the-accusation, see Fitzgerald v. State, 10 Ga. App. 70 (5), 76 (72 S. E. 541) ; Basil v. State, 22 Ga. App.. 765 (97 S. E. 25.9).

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur. Stephns, J., dissents,.

W. W. Bennett, for plaintiff in error, cited, as to sufficiency of evidence:

Ward v. State, 14 Ga. App. 110; Scott v. State, 15 Ga. App. 533.

J. Mark Wilcox, solicitor, cited:

Mimbs v. State, 2 Ga. App. 387; Hogan v. State, 76 Ga. 82-3; Smith v. State, 13 Ga. App. 241-6; Fitzgerald v. State, 10 Ga. App. 71 (5); Wilder v. State, 3 Ga. App. 443-4; Heard v. State, 113 Ga. 448-51.


text:
    10118.
    SMILEY v. THE STATE.
    Decided January 23, 1919.
    One charged with buying or receiving goods, knowing them to have been stolen, can not be indicted and punished until after the conviction of the principal offender, or until it appears that the principal offender can not-be taken so as to be prosecuted and, convicted. It follows that the principal and the “accessory after the fact” can not be jointly indicted, where the prosecution is under § 168 of the Penal Code of 1910.
    Indictment for burglary, etc.; from Mitchell superior court— Judge Harrell. August 17, 1918.

      A. S. Johnson, for plaintiff in error.

      R. C. Bell, solicitor-general, F. A. Hooper, contra.
   Bloodworth, J.

The indictment in this case charges Leroy Winchester with burglary, and the plaintiff in error and others as accessories after the fact, alleging that they “did buy and receive” all of the property from said Winchester which he obtained by the burglary. The indictment was demurred to on several grounds, among them 'that the indictment should be quashed because the person who is alleged to have committed the burglary was joined “in the same indictment and the same count thereof” with, the plaintiff in error, who was charged with receiving stolen goods. The demurrer was overruled, and a bill of exceptions pendente lite was filed. The case proceeded to trial and resulted in a verdict of guilty. A motion for new trial was overruled, and this, also is alleged as error.

The learned trial judge erred in overruling the demurrer to the indictment. He evidently acted upon the general proposition that the principal felon and the accessory may be indicted in the same bill. This is true when they are joint offenders, both concurring, at least in intent, in the commission in the same crime. While the statute law of our State designates one who receives stolen goods, knowing them to be stolen, as an “'accessory after the fact,” and he may be indicted as such, this is not strictly in accord with the definition of an accessory after the fact as given in our code. The isolated fact that one receives stolen goods, knowing them to be stolen, does not make the receiver guilty as an “accessory after the fact” under the code definition thereof above quoted; but he would be such if, in addition to receiving the goods, and after full knowledge that a crime had been committed, he “conceals it from the magistrate, and harbors, assists, or protects the person charged with or convicted of the crime.” Penal Code (1910), § 47. In Loyd v. State, 42 Ga. 221, Chief Justice Lochrane said: “to receive stolen goods, knowing them to be stolen, did not fall under any of the definitions of the common law, and did not constitute the receiver an accessory, but was, in itself, a distinct and separate offense: 1st Bishop, section 493. The receiver of stolen goods, knowing them to, be stolen, is not an accessory, according to our definition, because he renders no aid to the principal, felon. Nor, in speaking of the common law, do we overlook the statute, 3 and 4 W. & M., or of 1st and 5th Ann, but after a review of the whole subject, and in view of the provisions of qur own Code, which makes this a distinct offense as accessory after the fact, we lay down the true test to be to consider whether what -he did was done by way of personal help to his principal, with a view to enable the principal to elude punishment.”

We have not overlooked the fact that in Bieber v. State, 45 Ga. 569, the headnote is as follows: “One who buys or receives goods, chattels, money or other-effects that have been stolen, or feloniously taken from another, knowing the same to have been stolen, or feloniously taken, may be indicted as an ‘accessory after the fact/ under the provisions of the 4420th section of the Code 168 the Penal Code of 1910]. That section creates and defines a distinct offense.” It is true that under § 168 of the Penal Code of 1910, the indictment may properly designate one who receives stolen goods as an “accessory after the fact.” However, Bieber was not indicted with the principal, and the indictment “set forth the plea of guilty of the principals to an indictment that had been found against them for simple larceny.” In the case of Licette v. State, 75 Ga. 253, Mr. Justice Hall follows the code and designates one who receives stolen goods, knowing them to be stolen, as an accessory after the fact, yet he distinctly rules that the statute requires the prosecution and conviction of the principal before the “accessory” can be tried. In Jordan v. State, 56 Ga. 92, the first headnote is as follows: “An indictment for this offense under section 4488 of the Code should allege that the principal thief has been tried and convicted of the offense; if such principal cannot be taken so as to be prosecuted and convicted, then the accessory in receiving the stolen goods should be indicted under section 4489 for a misdemeanor.” (Italics ours.) Sections 4488 and 4489 referred to in the headnote quoted above are §§ 168 and 169 of the Penal Code of 1910. The third headnote in that case is in part as follows: “The indictment should specify the particular offense of which the principal thief was convicted, whether larceny or burglary, so that the record of the court-^-the pleadings—shall show that the judgment or sentence is right according to the case made.” (Italics ours.) Mr. Justice Lumpkin in Martin v. State, 95 Ga. 478 (20 S. E. 271), referred to the above ruling in the Jordan case and said its correctness “admits of grave dougt,” but it has not been overruled, and the same principle was positively asserted in Rogers v. Brown, 138 Ga. 750 (3) (75 S. E. 1131), in which Mr. Justice Atkinson ruled that an indictment was fatally defective where it charged the accused with “being accessory after the fact by receiving stolen goods, knowing them to be stolen, and failed to allege that the principal thief had been convicted (Penal Code, § 168), or that the principal thief could not be taken so as to be prosecuted and convicted (Penal Code, § 169);” citing Jordan v. State, supra. The ruling in the Jordan case was also approved and followed in Butler v. State, 57 Ga. 610. .

In Roberts v. State, 18 Ga. App. 529 (89 S. E. 1055), will be found, an interesting and lucid discussion oh a question somewhat analogous to the one sub judice, Chief Judge Wade concluding the opinion thus: “It is true the indictment in the case under consideration charged the defendant with receiving, harboring, and . concealing a guilty person, knowing such person to. be guilty. However, it can not be reasonably contended that the defendant . knew that the principal offender charged with the commission of ■a felony was legally guilty, since under our law every person accused of 'Crime is presumed to be innocent until the contrary is established by legal proof, or, in other words, until he has been tried and convicted in a court of competent jurisdiction. It would certainly present an anomalous state of affairs should one be indicted and convicted as an accessory after the fact, and thereafter the principal offender be tried and found not guilty. As in a great measure a safeguard against such results, the statute relative to accessories before or after the fact wisely provides in effect (as construed by the courts) that only after the conviction of the principal offender, or where such offender can not be taken so as to be prosecuted and punished, can an alleged accessory be indicted and tried.”

It therefore appears settled, under the rulings of the courts of last resort in our State, that “only after the conviction of the principal offender, or where such offender can not be taken so as to be prosecuted and punished, can an alleged accessory be indicted and tried.” An examination of all the cases cited by counsel for the State will show that they are not in conflict with what is here decided. Under the foregoing rulings, the person committing the burglary and the receiver of the stolen goods can not be joined in the same indictment. It might be well for the legislature to take some action in reference to the proposition under discussion, and provide for the indictment of an accessory before the trial of the principal. In the instant case, the court having erred in overruling the demurrer to the indictment, the further proceedings were nugatory.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


text:
    10146.
    McCAIN v. THE STATE.
    Decided January 23, 1919.
    1. When read with the rest of the charge of the court, the extracts complained of contain no error that requires a new trial.
    2. A verdict supported by any evidence, however slight, and approved by the trial judge, can not be interfered with by this court. The evidence is sufficient in this case.
    3. The ground of the motion for a new trial which relates to the refusal to continue the case is incomplete and too indefinite for consideration.
    Accusation of possession of intoxicating liquor; from city court of Carrollton.—Judge Beall. August 17, 1918.

      Emmett Smith, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Bloodworth, J.

When read in connection with the entire charge, there is no reversible error in any of the extracts therefrom, of .which complaint is made in the motion for new trial.

The evidence is sufficient to support the verdict; and, “the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere'. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this'court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited.

The ground of the motion alleging error in overruling the motion to continue is too indefinite for consideration by this court. It does not even give the name of the absent witness; nor does it show “that he has been subpoenaed; . . that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that he expects he will be able to procure the testimony of the witness at the next term of the court; and that the application is not made for the purpose of delay, but to enable the party to procure the testimony of the absent witness;” nor does the ground of the motion “state the facts expected to be proved by the witness.” Penal Code (1910), § 987. “Grounds of a motion for new trial should be complete within themselves.” Daniel v. Schwarzweiss, 144 Ga. 81 (86 S. E. 239); Copeland, v. Ruff, 20 Ga. App. 218 (2) (92 S. E. 955); Bridges v. Griffin, 20 Ga. App. 599 (2) (93 S. E. 170). It is true that there is attached to the motion for a new trial what purports to be the evidence of plaintiff in error offered on a motion for continuance, but this is in no way identified as a part of this ground of the motion for new trial, nor teferred to therein as an exhibit. In addition to the above, from the case of Sealy v. State, 1 Ga. 213 (44 Am. D. 641), to the recent case of Hilton v. Haynes, 147 Ga. 725 (2), 726 (95 S. E. 220), our Supreme Court has decided that in motions for continuance the discretion of the court will be interfered with only in extreme cases. In the opinion in the Sealy case, supra, Judge Lumpkin said: “There is great danger of doing mischief by revising matters of this kind, which should properly be confined to the discretion of the court below, to be regulated by the circumstances of each particular case. No'precise rule can be laid down, and a most arbitrary and oppressive exercise of this discretion must be made apparent to this court, before it will interfere.” See also Blount v. State, 18 Ga. App. 204 (89 S. E. 78). In the instant ease we can not say that the trial judge flagrantly abused his discretion.

Judgment affirmed,.

Broyles, P. J., and Stephens, J., concur.


text:
    10180.
    Cauley v. The.State.
    Decided January 23, 1919.
    Indictment for sale of liquor, etc. from Taylor superior court— Judge Howard. June 7, 1918.

      Jere M. Moore, C. B. Marshall, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Broyles, P. J.

1. It does not appear from the record that the trial judge abused' his broad discretion in refusing a continuance or a postponement of the case.

2. The 2d special ground of the motion for a new trial, complaining of the exclusion of "certain testimony, not having been argued in the brief of counsel for the plaintiff in error, is treated as abandoned.

3. While several excerpts from the charge of the court are excepted to in the amendment to the motion for a new trial, these excerpts are not referred to in the brief of counsel for the plaintiff in error, but the only complaint in their brief, so far as the charge is concerned, is that the entire charge was erroneous; and there is no such exception in the amendment to the motion for a new trial. Under such circumstances the grounds of the motion for a new trial complaining of such excerpts ■ will be treated' as abandoned, and the correctness of the chai'ge as a whole will not be passed upon.

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    9537.
    Alexander v. Chosewood.
    Decided January 29, 1919.
    Action for damages; from Fulton superior court—Judge Ellis. December 5, 1917..

      R. B. Blackburn, Smith, Hammond & Smith, for plaintiff in error. James L. Key, contra.
   Luke, J.

The evidence authorized the verdict in this ease, which has the approval of the trial judge. The charge of the court, w}xen considered as a whole, is a fair an full presentation of the law applicable to the facts of the case; and, there being no assignment of error which requires a reversal, the judgment refusing a new trial is

Affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    9690, 9731.
    LINDSEY v. INDEPENDENT ORDER OF PURITANS; and vice versa.

    Decided January 29, 1919.
    1. The life policy for $2,000 had lapsed before the death of the insured and before tlie defendant company, by written agreement, assumed the liabilities set forth in the insurance contract. The policy itself being void at the time the assumption of liability was undertaken by the defendant company, there was no liability against the original insurer, and hence none was assumed by the defendant company.
    2. The other contract” of insurance provided for the payment of 50 monthly installments of $20 each to the beneficiary upon proof .of the death of the insured, but provided that if his death resulted solely from an
    • “accident of travel,” 100 monthly installments of $20 each should be paid to the beneficiary. It further provided that the beneficiary, “if the widow of the insured,” should' be entitled, “after having received 100 ■ monthly payments provided for above,” to a continued benefit of $20 per month during the full term of her widowhood, to cease upon her remarriage or death. There being no proof that the death of the insured resulted from an accident of travel, -the beneficiary was -not entitled to the 100 consecutive .monthly installments of $20 each provided for by the contract, and was not entitled’ to the continued benefit of $20 per month during her widowhood, which was only due and payable after the 100 monthly payments provided for in the event of accidental. death should have been received by her. Both the payment of the 100 monthly installments of $20 each and the continued benefit of $20 per month during her widowhood depended, by the terms of the contract, upon death of the insured resulting solely from an accident of travel.
    3. The verdict in favor of the defendant on the two counts based on alleged liability under the two separate policies of insurance was demanded by the evidence, and’ the trial judge did not err in overruling the motion for a new trial. •
    Action on insurance policy; from Colquitt superior court—-Judge Thomas. April 10, 1918.

      Shipp & Kline, for plaintiff.

      Douglas & Douglas, Parker & Gibson, for defendant.
   Wade, C. J.

On June 27, 1910, The National Life Annuity Association, a mutual-benefit order, issued two certificates of insurance on the life of Ralph Clifton Lindsey, in which his wife was named as the beneficiary. One certificate (No. 2602) provided for the payment to Mrs. Lindsey, upon satisfactory proof of the death of the insured, of the sum of $2,000 in'100 consecutive monthly installments of $20 each; and provided further, that in the event of the accidental death of the insured before attaining the age of 60 years, the amount payable should be $3,000 in 100 consecutive monthly installments of .$30 each; but should the accidental death of the insured be caused solely by and. result from accident of travel, the amount payable should be $4,000, in 100 consecutive monthly installments of $40 each. This policy or certificate further provided that the widow of the insured should be entitled, “after having received 100 monthly payments provided for above,” to a continued benefit of $20 per month during the full term of her widowhood, but that this continued benefit shtrald cease upon her remarriage or death. The other certificate. (No. 2603) provided for the payment to the wife of the insured, upon satisfactory proof of his death, of “the sum of $1,000 in 50 consecutive monthly installments of $20 each;” and also provided that in the event of the accidental death of the insured before attaining the age of 60 years, the amount payable' should be $1,500 in 75 consecutive monthly installments of $20 each; but should the accidental death of the insured be caused solely by or result from accident of travel, the amount payable should be $2,000, in 100 consecutive monthly installments of $20 each. This policy or certificate further provided that “the named beneficiary under this certificate, if the widow of the insured, shall be entitled, after having received 100 monthly payments provided for above, to a continued benefit of $20 per month during the full term of such widowhood; but this continued benefit shall cease upon the remarriage or death of the beneficiary.”

It appears, from the allegations in the first count of the plaintiff’s petition, that the insured died on the 7th day of December, 1911, and proof of death was made under policy No. 2602, for $2,000, and the National Life Annuity Association began in February following to pay the $20 per month as stipulated therein, and continued to-pay. the same until that policy or certificate was assumed by the Independent Order of Puritans, of Pittsburg, Pennsylvania, on April 6, 1912, which assumption was in writing and attached to the policy or certificate; and that the Independent Order of Puritans continued the payment of $20 per month as stipulated in the policy or certificate until 50 payments had been made, and thereupon ceased to make further payments. Plaintiff alleged that the defendant was due her the sum of $20 per month for each month beginning with February, 1916. The second count of the plaintiff’s petition alleged the same facts as to the. death of the insured and the assumption of the obligation of the National Life Annuity Association by the Independent Order of Puritans, arising under policy No. 2603, for $1,000; the obligation sought to be enforced under that policy being, however, the payment of $20 per month, to continue during the full term of the widowhood of the beneficiary, Mrs. Lindsey, and until her remarriage or death, based upon the averment that the plaintiff was still the widow of Ealph Clifton Lindsey. The only assumption of risk by the defendant company was eyidenced by a writing executed with due formality, in which the defendant agreed to assume the insurance contract liabilities “as set forth in the contract to which this rider is attached, being No. 2602, issued by the National Life Annuity Association of Atlanta, Ga.;” and this writing denominated a “rider” was dated April 6, 1912, and was sent to the beneficiary by the defendant, to be attached to said certificate No. 2602.

The undisputed evidence showed that policy No. 2602 for $2,000 had lapsed, and was absolutely void and of no effect, a considerable time before its transfer and before the death of the insured, and that only the policy for $1,000 was in effect at the time of his death; and therefore it is apparent that no liability under the policy for $2,000 rested on the defendant company, unless its assumption of liability under and by virtue of the contract signed by it, and which was by its terms to be attached to policy No. 2602, could or did of itself create such a liability or obligation. It is hardly necessary to say that if the policy for $2,000 was null and void at the time this assumption of liability was executed by the defendant, no obligation was' thereby created against the Independent Order of Puritans. The original contract having been void absolutely by the failure on the part of the insured to pay the premiums or assessments provided for therein, there was no existing obligation on the part of the National Life Annuity Association of Atlanta, under this contract, in favor of the insured or his beneficiary at the time the assumption of liability was executed by the Independent Order of Puritans, and that assumption of liability merely declares that the defendant “agrees to assume the insurance contract liabilities as set forth [italics ours] in the contract to which this rider is attached, being No. 2602, issued by the National Life Annuity Association of Atlanta, Ga.” Consequently, if the National Life Annuity Association had no liability under certificate No. 2602, the Independent Order of Puritans assumed none. Certificate No. 2602, as a consideration for the contract, provides for “the payment of $3.22 monthly premium, and the further payment of all'premiums regularly and promptly as they become due on the first day of each calender month hereafter.” As this condition was breached by the insured, the policy had lapsed and become void, under the undisputed evidence, before the assumption of liability therein by the present defendant,.and therefore no recovery could possibly be had thereunder.

There was evidence that this rider was issued by mistake and was intended for policy No. 2603, for $1,000; and, to bear out this evidence, there was testimony from the plaintiff herself that the $20 coupons surrendered by her on payment of the several monthly installments which she received, 50 in number, aggregating $1,000, were coupons from policy No. 2603 for $1,000—the policy which was in life at the time of the death of the insured. Likewise, the undisputed testimony showed that proof of death was made under policy No. 2603, and no proof of death was.made under policy No. 2602. Therefore no recovery whatsoever was authorized by the evidence, under the first count of the plaintiff’s petition, which sought to recover under policy No. 2602, which had lapsed long before the death of the insured and had not been revived by the assumption of liability referred to above and entered into by the defendant company on April 6, 1912. The only question, therefore, is whether or not, under the terms of certificate No. '2603, which was of force and under which plaintiff had already received at the time the suit was brought the sum of $1,000, which it is therein provided shall be paid upon proof of the death of the insured, the beneficiary is entitled to a further payment of $20 monthly during her life and widowhood. There was testimony to show that this policy should not have contained, the provision as to a continued benefit of $20 per month during the life and widowhood of the beneficiary; whiph testimony was objected to when offered, and, under the pleadings in the ease, was perhaps of doubtful admissibility. This testimony was undisputed, and, if competent and admissible under the pleadings, might have negatived the right of the plaintiff to the continued benefit sued for in the second count of her petition. In, the view we take, it is not necessary, however, either to consider' the various assignments of error as to the admission of this and other testimony tending to attack or explain the contract as written or authorize a reformation thereof, or tq consider the exceptions to 'the charge of the court touching.this feature of the case; for, even if it be conceded that the evidence was inadmissible, and that the exceptions to the charge referred to were well taken, we think that no recovery could be had, under the contract as written, by placing any reas.onable interpretation on the language therein employed. .

The contract makes several different provisions as to the benefits arising thereunder. First, upon proof of the death of the insured, $1,000 shall be paid to the beneficiary in 50 consecutive monthly installment's of $20 each. Second, in- the event that the death o'f the insured be caused by accident before he attains the age of 60 years, the amount payable shall be $1,500, in 75 consecutive monthly installments of $20 - each. Third, should the death of the insured be accidental and “be caused solely by and result from accident of travel, the amount payable shall be $2,000 in 100 consecutive monthly installments of $20 each.” Fourth, “the named beneficiary under this certificate, if the widow of the insured, shall be entitled, after having received 100 monthly payments provided for above, to a continued benefit of $20 per month during the full term of such widowhood; but this continued benefit shall cease upon the remarriage or death of the beneficiary.” It will be observed that there is no provision whatsoever for the payment of 100 consecutive monthly installments of $20 each, except in the case of the accidental death of the insured caused solely by and resulting from “accident of travel.” It will be further observed that the provisions for the payment of a “continued benefit” of $20 per month during the life and widowhood of the beneficiary expressly stipulates that such beneficiary, “if the widow of the insured”, shall be entitled to receive said continued benefit “after having received 100 monthly payments provided for above [italics ours].” The only 100 monthly payments “provided for above” which are referred to in the contract of insurance are to be paid in the event only that the deceased met his death solely on account of or as a result of an “accident of travel.” Construing the, contract altogether, and being not unmindful of the rule that contracts of insurance are to be construed -most liberally in favor of the insured and against the insurer, without- any reference whatsoever to the testimony or the pleadings relative to a mistake in the original writing of the contract, and without taking into consideration whether or not the reformation of the contract contended for by the defendant could be effected in this action under the pleadings and the evidence adduced, the plain, unambiguous, and reasonable meaning of the contract as it was actually written, and which is relied upon as the basis of a right of action in the plaintiff, is that only in the event the insured came to his death by an accident of travel would his beneficiary be entitled to 100 monthly installments of $30 each, and only in the event that his death occurred by reason of an accident of travel would she be entitled to receive, after the payment of the 100 monthly installments of $30 each due her in that event, the continued benefit of $30 per month during the remainder of her life and widowhood. No proof was offered to show that the death of the insured occurred as a result of an “accident of travel;” wherefore no obligation arose to pay to his beneficiary under the certificate of insurance which was in effect at the time of his death $30 per month for $100 Consecutive months, due only in that event; and therefore no obligation existed under the provisions of the contract to pay a continued benefit of $30 per month during the full term of her widowhood, .“after having received 100 monthly payments provided for above;” the only 100 monthly payments “provided for above” never having become due and payable. Under the construction we give the contract, and our view of the case as presented by the record, but one verdict could have been returned by the jury, and that was a verdict for the defendant on both counts of the petition. It is, therefore, unnecessary to consider the various alleged errors referred to in the amendment to the motion for a 'new trial, and as the verdict was demanded, the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
      9772.

    Whittier Mills Co. v. Jenkins.
   Jenkins, J.

This was a suit in the city court of Atlanta for damages on account of personal injuries. No defense was entered at the first term, and a judgment by default for the plaintiff was at that time entered. upon proof being made,by her as to the amount of damage sustained. During the term the defendant moved to open the default and vacate the judgment, and the motion was denied. It moved also for a new trial, which the trial judge granted, and under that motion the verdict and judgment were set aside. A bill of exceptions by the plaintiff, complaining of the judgment granting a new trial, was brought to this court and in a cross-bill of exceptions the defendant assigned error upon the refusal to open the default. It was held by this court that the judge did not err, in the exercise of his legal discretion, in refusing to open the default, nor in setting the judgment aside on the defendant’s motion for a new trial. 20 Ga. App. 828 (93 S. E. 530). When the case fiame on for another trial in the court below, the defendant made an oral motion to dismiss the petition, on the ground that no cause of action was set forth. The motion was overruled.. A second motion to open the default had been filed immediately following the grant of a new trial, and that motion also was overruled when the case came on for its second hearing. The second trial, for the purpose of determining the amount of damages, resulted in a verdict for the plaintiff in an increased amount. Exceptions are now taken to the refusal to dismiss the petition on the oral motion, to the second refusal to open the default, and to the refusal of a motion for a new trial, in which it is complained that the verdict is excessive, and that the court erred in certain rulings made at the second trial, all of which may be generally stated as presenting the question whether the statutory right to contest the amount of unliquidated damages in eases of default includes the right to contest the extent of the injuries, in contradiction of the averments made by the petition, and whether in contesting the amount of such damages the issue of contributory and comparative negligence, although excluded under the allegations made by the petition, can be raised and submitted for the purpose of diminishing the amount of damages claimed. Held:

1. The petition set forth a cause of action, and the court did not err in refusing to dismiss the case on oral motion.

2. The court did not err in refusing for the second time to open the default, although the judgment for the plaintiff had at, that time been set aside under the motion for a new trial. The previous judgment was not a nullity and never became such, but, having been legally rendered and not being void, although subsequently set aside as erroneous, its rendition fixed the continuing status of the defendant as being in default.

3. Under the allegations made by the petition, this court is unable to disturb the judgment in this case on the ground that the verdict (for $10,525) is excessive. Realty Bond &c. Co. v. Harley, 19 Ga. App. 186 (2) (91 S. E. 254), and cases there cited.

4. On the trial of a suit for unliquidated damages, in which the defendant is in default, the effect of the default is the same as if every item and paragraph of the petition had been proved by testimony and judgment had been rendered thereon, save only as to the amount of the damages claimed; and while the defendant has the right to contest this, in doing so he is not privileged to deny or dispute any of the material facts so adjudicated' against him. Civil Code (1910), §§ 5657, 5662; Lenney v. Finley, 118 Ga. 427 (45 S. E. 317) ; Southern Bell Tel. Co. v. Earle, 118 Ga. 506 (45 S. E. 319) ; Caldwell v. Freeman, 146 Ga. 469 (4) (91 S. E. 544) ; O’Connor v. Brucker, 117 Ga. 451 (43 S. E. 731) ; Pittman v. Colbert, 120 Ga. 341 (47 S. E. 948).

Decided January 29, 1919.

Action, for damages; from Fulton superior court—Judge Reid .presiding. April 7, 1918.

Smith, Hammond & Smith, for plaintiff in error.

Hugh Howell, Morris Macks, Brewster, Howell & Heyman, contra..

5. Under the foregoing rulings, none of the assignments of error are sufficient to authorize this court to set aside the verdict and judgment.-

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


text:
    9854.
    WYNNE, clerk, v. SMITH, solicitor.
    Decided January 29, 1919.
    The costs accruing in favor of the clerk of the city court of Eastman on motions for a new trial of defendants convicted in criminal cases, and for transmitting the records therein to this court, where the judgment has been affirmed by this court and executions have been issued against the defendants primarily liable therefor, and returns of nulla, bona made thereon by the sheriff, are “insolvent costs,” within the meaning ■ - of section 1113 of the Penal Code of 1910, and, as such, are entitled to participate in the fines and forfeitures fund of that court.
    Rule; from city court of Eastman—Judge Griffin. May 1, 1918.

      J. H. Milner, for plaintiff. D. D. Smith, for defendant.
   Jenkins, J.

No question is made in this case as to the correctness of the items contained in the bill of costs presented by the clerk, or as to whether the items are properly chargeable as costs, "but the sole question to be determined is whether insolvent costs accruing in favor of the clerk in criminal cases subsequent to conviction, where the judgment is affirmed, are to be treated as “insolvent costs” within the meaning of section 1113 of the Penal Code of 1910, so as to be entitled to participate in the fines and forfeitures fund. Section 1105 of the Penal Code provides that “The costs of a prosecution, except the fees of his own-witnesses, shall not be demanded of á defendant until after conviction on final trial. If convicted, judgment may be entered up against him for all ’costs accruing in the committing or superior courts, and by any officer pending the prosecution. The judgment shall have a lien on all the property of the defendant from the date of his arrest, and the clerk shall issue an execution, on the judgment, against said property. The court may also direct the defendant to be imprisoned until all costs are paid.” It is contended by the defendant that under the terms of this section the only costs entitled to participate in the fine and forfeiture fund are such insolvent costs as accrue in the trial court up to the time of conviction in that court; but with this contention we can not agree. Under this section of the code, no judgment for any of the costs can be taken until after conviction on final trial, but the words “final trial” as here used mean “such trial, in the court having original trial jurisdiction of the case, as is the basis of the entry of judgment finally disposing of the action in such court, and do not apply to proceedings in an appellate court.” Wynne v. Stonecypher, 146 Ga. 5 (90 S. E. 284). It was also held in that case that, “Where no supersedeas is obtained, the clerk of the trial court is entitled to have judgment awarded against the defendant for the costs accruing in connection with his prosecution of a writ of error to the Court of Appeals while his case is pending in that court.” If a supersedeas be obtained (as was done by each of the defendants in the cases now involved), a judgment can not be taken for any of the costs until the case is disposed of by the reviewing court. Thus, at the first opportunity which the clerk had for taking a judgment for his costs, the costs to which he is entitled on motions for new trial and for transmitting the records to this court had already accrued in the court below; and the code-section above quoted provides that, if the defendant is convicted, judgment may be entered up against him for all costs accruing in the committing or superior courts. Nothing in this section limits the right to take a judgment for costs to such costs only as accrue up to the time of conviction in the trial court, but to the contrary, it provides that upon conviction, judgment may be entered up against the defendant for all costs accruing in the trial court; and certainly the costs here claimed accrued in the court below.

Section 1113, supra, is as follows: “In cases where a bill of indictment is preferred and not found true by the grand jury, or where a defendant shall be acquitted by a jury, or where persons liable by law for the payment of costs shall be unable to pay the same [italics ours], the officers severally entitled to such costs may present an account therefor to the judge of the court in which the prosecutions were pending, which, being examined and allowed by him, he shall order to be paid in the manner prescribed by law, and such account and order shall be entered on the minute's of the court.” There is no contention in this case that the several defendants in the cases in which cost? are claimed are not “liable by law for the payment of such costs,” and it is conceded that they are “unable to pay the same,” since executions have been issued against the several defendants primarily liable therefor, and returns of nulla bona'made thereon by the-sheriff. How, then, can"”it be said that the costs claimed are not insolvent costs ? In this section of the code there is no provision whereby the. only costs which may be considered as insolvent costs are those accruing up to the time of conviction in the lower court, and it would seem to us that the costs claimed are properly so chargeable, and, as such, are entitled to participate in the fine and forfeiture fund. Section 1114 of the Penal, Code provides that “Money arising from fines,- or collected on forfeited recognizances in the superior courts, or for a violation of the penal laws, shall be first applied to the extinguishment of the insolvent lists of the officers bringing it into court and those of justices and constables pro rata, and then to the orders of former officers in proportion to their claims.” See also Mayor &c. of Macon v. Hoge, 71 Ga. 696, 698, where it was said that the State “has made provision to compensate all her officers who aid in the administration of penal laws; no service is required of any of them, with a very few exceptions, for which compensation is not provided.” It is there held that “The officers of the superior, city and county courts have recourse to the funds arising from fines and forfeitures in the respective courts, to pay costs where they can not be collected from defendants in criminal proceedings.”

We are of the opinion, therefore, that the judge erred in refusing to audit and approve the claim as presented by the clerk.

Judgment reversed.

Wade, C. J., and Luke, J., concur.


text:
    9855.
    Hall et al., v. Roberts, Johnson & Rand.
   Luke, J.

The original plea of the defendants in this ease was subject to special demurrer, but it contained enough to overcome an oral motion in the nature of a general d'emurrer, and the court erred in striking it on oral motion, and in thereafter directing a verdict for the plaintiff.

Decided January 29, 1919.

Complaint; from Baker superior court—Judge Harrell. March 18, 1918.

Boberts, Johnson & Band sued B. L. & W. H. Hall for $315.65 alleged to be due on an open account, and the defendants filed an answer at the appearance term. The answer, after admitting that the defendants were residents of the county, was as follows: “2. In answer to the allegation [of indebtedness] contained in paragraph 2 of said petition, defendants say that on the 11th of December, 1914, they paid to plaintiffs the sum of $81 for sixty pairs of shoes, described in stock of plaintiff as -number 9321, which plaintiff refused to ship and at the same time converted the money so paid to them for said shoes to their own use without any warranty or authority'whatever; that at the time the above-described shoes were paid for as above stated, defendants were in great need of these shoes in order to replenish their stock of shoes as well as to fill in their stock, which was badly in need of the numbers ordered, and which they were daily having calls from their customers for. Defendants say, had plaintiffs shipped said shoes so ordered and paid for, that they would have sold them immediately at a profit of not'less than $35. 3. Defendants further show to the court that they were at that time and are still engaged in a general Supply business, that their customers rely upon them to supply their general needs in the spring and summer while their crops are growing, and in the fall during harvesting time spend considerable cash in their store. Defendants say and allege that by" reason of the plaintiff’s failure to ship said shoes and to recklessly disregard all business dealings, many of their customers during the winter were forced to go elsewhere to supply their needs for shoes; that not having in stock the shoes so ordered, their customers went elsewhere not only to purchase shoes, to spend their money and purchase other articles of necessity, and that, by reason of this, defendants were damaged in the sum of $150. 4. Defendants further say in this behalf that the conduct of plaintiffs in this transaction was not within the scope of legitimate business dealings, was wilful, and was done for the purpose of injuring and damaging defendants, as they were advised that plaintiffs had the shoes so bought and paid for in their stock at the time they received defendants’ money, and offered no excuse for such wilful and wanton treatment except that it was Roberts, Johnson & Rand, a branch of the International Shoe Company, a corporation handing out the unkind, unfair, unjust, and iniquitous treatment. Wherefore defendants pray that the amount of damage herein set out and specified be set off against said indebtedness so claimed by said plaintiffs.”

Judgment reversed.

Wade, C. J., and Jenhins, J., concur.

At the trial term the defendants, in a proposed amendment to their plea, denied that they were indebted to the plaintiffs as alleged. The court disallowed the amendment and. struck the original plea, on oral motion of the defendants, on the ground that the plea was insufficient in .law. The court then directed a verdict for. the plaintiffs. To the judgment entered thereon and to the antecedent rulings stated the defendants excepted.

W. I. Geer, Benton Odom, for plaintiffs in error, cited:

Cason v. Armour Fertilizer Works, 14 Ga. App. 208; Wynn v. Wynn, 109 Ga. 255.

Peacock & Gardner, contra, cited:

Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 416 (5); Piedmont Wagon Co. v. Hudgens, 4 Ga. App. 393; Smith v. First Nat. Bank, 115 Ga. 608(2); Moss v. Anderson, 10 Ga. App. 784


text:
    9864.
    BERRYTON MILLS v. PARHAM.
    Decided January 29, 1919.
    1. “In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or of his master’s representative, the servant must show that the order was a negligent one.”
    2. In this case the injury received by the plaintiff was the result of the negligence of a fellow servant, and it was error to overrule the motion for a new trial.
    Action for damages; from Chattooga -superior court—J. E. Rosser, judge pro hae vice. May 8, 1918..

      Denny & Wright, for plaintiff in error.

      Wesley Shropshire, Murray & Draper, Glenn & Napier, contra.
   Luke, J.

Parham brought his action for damages against the Berryton Mills, a manufacturing corporation, to the March term, 1917, of Chattooga superior court, alleging substantially that he was injured by defendant in the sum of $10,000 on July 29, 1916; that he was employed some four months prior by the defendant, through one Gus Hudson, vice-principal of defendant, as fireman of boilers; his regular duty tinder his employment was to fire the boilers, but he was required to perform such other services about’ said mill or plant as might be directed by defendant through said Hudson, foreman and vice-principal; that on July 29, 1916, defendant had two boilers of approximate capacity of 150 horse-power each; that these boilers are located in the boiler-room of defendant’s plant,, and are situated alongside and within a very few feet of one another, and are used for generating steam-power to drive the machinery of the plant; that the boilers are connected by a pipe-line through which the mud and sediment which accumulated in the boilers is drawn or allowed to escape; that along this pipe line are located two valves known as mud-valves, one of which is located alongside and on the outside of each boiler, and by means of such valves the mud and sediment is -forced by steam to escape from said boilers through said pipe line and into another waste line of pipe connecting about midway between said boilers, which also has a valve to open and close said waste pipe line; the escape of steam is controlled by the valve nearest the boiler, and when the three valves are open, -or waste-valve closed and the other two-opened, the steam from one boiler will escape into the other; that on said July 29 the plaintiff was directed by said vice-principal, Hudson, to go into a boiler and fix a water-pipe in one of the boilers which was leaking, the boiler having been cooled down; that the plaintiff stated that he did not want to do so, for he did not know about the danger or anything about it, but he was assured by said vice-principal, Hudson, that the place was safe, and that there was no danger, and Hudson directed him to enter and go right into the boiler and do the work; that he was not aware of the'danger incident to said service, and, relying on the assurance of said vice-principal, he entered said boiler and entered on the discharge of said' duties required of him therein; that he had not, and could not have had by the exercise of ordinary care, such means of knowing the risk as the defendant had; that he was engaged in said work in the boiler, the fireman fired the other boiler under order of said vice-principal, opened the mud-valve nearest the boiler which was being fired by him, and allowed steam to escape into said pipe line connecting the boilers; that the defendant negligently and without proper care and inspection had left open the mud-valve next to the boiler in which the plaintiff was engaged, performing service as directed, and that the steam entered the boiler in which he was engaged, and scalded, burned, and permanently injured him, causing him great pain and suffering; that the defendant had not exercised proper care to see that said valve was closed, or give him any notice thereof, or to warn him that the fireman was about to turn on steam, or any other- warning whatever, and that the defendant did not inspect said valves, although it had full knowledge of his perilous position, and that no one was placed to guard said valve, and no direction was given to the fireman not to turn on the steam while the plaintiff was in the boiler, and that the defendant was negligent in failing to furnish and maintain a safe place for the performance of the-plaintiff’s work.

The evidence in substance discloses that Parham had been employed for some time by the mills,—sometimes firing these boilers and sometimes at other work. It became necessary to repair some of the tubes in one of the boilers, and the boiler was accordingly cooled off. Mr. Alexander, the only witness upon the question of cooling off this boiler, testified that he drew the fire from under it about 6:30 or 7 o’clock at night, that he then drained the boiler through the valve .above described, and, after closing this valve, filled the boiler with cold water, and then drained this, repeating this several times; that he finally let the water out about 1 o’clock a. m., and then closed the valve on this boiler. After this, Mr. Hudson, Parham, and several others went to work on this boiler. At 5:30 a. m. this same fellow-servant, Alexander, turned the steam on from the live boiler, burning and scalding Parham. At that time (5:30 a. m.) the valve on the dead boiler, was open, though it was underneath the boiler and the work was being done ■from above, and though no one was shown to have been anywhere near this valve after Alexander testified that he closed it. The two valves, the one on the dead boiler and the one on the live boiler, which Alexander opened, were only a few feet apart, and both were in sight of Alexander when he opened the valve on the live boiler. According to the testimony of Parham, both valves’ were not within the view of Hudson,v where he was working, nor was Alexander within ^his view when he opened the valve on the live boiler. The testimony of Parham and all other witnesses showed that there was a standing order to the fireman always -to close these valves after blowing off one of the boilers.

What was the proximate cause^of the injury received by Parham ? It cannot be said that the order from 'the vice-principal and the entering of the boiler at the time by Parham was negligence, for at that time there was no steam in the boiler and there was nothing dangerous about the task. Was not the proximate cause of the injury the act of Alexander, the fellow-servant, in opening the valve on the boiler which had steam in it, or the leaving open of the valve on the boiler in which Parham was working. If either be true, and this is the negligence relied upon, it seems to us that the case is controlled by the rule laid down in the Civil Code (1910), § 3129, that “except in eases of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” In a case somewhat akin in principle to this case, upon exceptions to a nonsuit, this court held that “It is the duty of a master to furnish to servants in his employ safe appliances for the work in which they are engaged; but when such appliances are furnished, and an injury to a servant is plainly attributable solely to the negligence of fellow servants in the manner of using them or in failing to use them, the master is not chargeable therewith.” See Henderson v. Ocean Steamship Co., 15 Ga. App. 790 (84 S. E. 230). The plaintiff, however, says-that he was complying with a command from the master to engage about the work in the boiler, as against his objections so to engage himself. This court has held that “In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or of his master’s representative, the servant must show that the -order was a negligent one under"the circumstances. If the order was negligent, and the servant knew of the peril of complying with it, or if he had equal means .with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he cannot recover for an injury received in complying with the order.” Simmons v. Southern Railway Co., 19 Ga. App. 524 (91 S. E. 917), and cases cited. See also Whiters v. Mallory Steamship Co., ante, 47 (97 S. E. 453). We are convinced that the evidence in this case, even when viewed most favorably to the plaintiff, shows conclusively that his injuries did not result from a negligent command of his master’s representative, but were the result of the negligence of a fellow-servant, for which, under the law, the master •is not liable in damages. We have carefully examined all the assignments of error, and, upon a consideration of the case as a whole, we- cannot hold that the evidence makes' a case entitling the plaintiff to a judgment for his injuries. It was error for the trial court, to overrule the motion for a new trial.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9865.
    ATLANTA OIL & FERTILIZER COMPANY v. PHOSPHATE MINING COMPANY.
    Decided January 29, 1919.
    1. It was held, when this case was formerly before this court (Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co., 20 Ga. App. 660, 93 S. E. 532), that-certain issues of fact were presented by the record' then under consideration which should be submitted to a jury for determination at a subsequent trial under the second count of the petition. The entire former record having been introduced in evidence at the trial now under review, the same issues of fact necessarily remained for the jury, although there was additional evidence. The trial judge therefore erred in directing a verdict.
    2. The former decision of this court is the law of this case, and necessarily controlled the subsequent trial so far as the decision was applicable to the issues then presented by the.pleadings and the evidence. In that decision it was expressly held that none of the questions there decided arose on the trial of the first count of the plaintiff’s petition; and the affirmance of the judgment overruling the motion for a new trial on this count therefore did not operate to determine or foreclose the issues presented by the second count, which were thus expressly excepted.
    Action on contract; from Fulton superior court—Judge Pendleton. April 9, 1918.

      D. W. Blair, King & Spalding, for plaintiff in error.

      Evins & Moore, Jones & Chambers, contra.
   Wade, C. J.

The Phosphate Mining Company brought suit against the Atlanta Oil & Fertilizer Company, alleging the breach of a contract in which the plaintiff agreed to sell and the defendant to buy certain phosphate rock to be delivered to the defendant f. o. b. at the mines of the plaintiff in the State of Florida, for an agreed price of $350 per ton, of 2240 pounds, at times and in quantities specified, to wit: 1000 tons during the year 1909, 6000 tons during the year 1910, and 6500 tons during the years 1911, 1912, 1913, 1914, 1915, and 19Í6. Certain amounts of the rock contracted for were delivered to the defendant in accordance with the terms of the sale agreement, and the first' count in the petition alleges that in accordance with the contract the plaintiff was ready to deliver, and did in fact tender, to the Atlanta Oil & Fertilizer Company during each of the months of June, July, August, and September, 1912, its monthly quota of 542 tons of phosphate rock as stipulated by the agreement, but that the defendant refused to receive the same or pay the contract-price therefor. It is further alleged in' this count that the contract-price of said rock f. o. b. at the mines of the plaintiff in the State of Florida was $350 per long ton during the months of June, July, August, and September, 1912, and that the market-price of said rock at the time and place of delivery during these months was $2.50 per long ton; wherefore the defendant was indebted to the plaintiff in the sum of $1 per long ton or $2,168 on the 2,168 tons tendered and refused during these months.

The second count of the petition alleges: that on September 25, 1912, the plaintiff received a written notice from the defendant to the effect that the defendant was unable to carry out the terms of the entire contract and declined to give any shipping instructions in regard to the movement of any rock in the future, and that from time to time thereafter the defendant avowed its intention not to conform to the terms of said contract, and therefore breached the same in toto; that the Atlanta Oil & Fertilizer Company renounced the contract in toto and breached the complete contract to the end of its term, by reason of which breach the plaintiff was damaged in the sum of $27,626, as the difference between the cost of manufacturing and the contract-price as set out in the contract would net to the plaintiff a profit of that amount if the plaintiff were allowed to fulfill and carry out the terms of said contract to its expiration. By amendment the month of April was substituted for June in the first count, and the amount claimed in the second count was changed to $41,439.

The case was tried on both counts at the January term of the superior court, 1916, and the trial resulted in a verdict in favor of the plaintiff on the first count for $1,734.40, and on the second count for $1 only. The case came to this court on exceptions to the refusal of the plaintiffs motion for a new trial and on July 26, 1917, this court rendered- a judgment affirming the judgment of the lower court in part and reversing it in part on the main bill of exceptions, and affirming the judgment on the cross-bill- of exceptions filed by the-Atlanta Oil .& Fertilizer Company. The original judgment of this court simply reversed the judgment of the court below on the main-bill of exceptions, but this judgment was; on motion of counsel for the plaintiff and by consent of counsel for the defendant, amended, as will appear from the judgments themselves, taken from the minutes of this court, to wit: “Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co. This case came before this court upon a writ of error from the supérior court of Fulton county; and, after argument had, it is considered and adjudged that the judgment of the court below be reversed because the court erred in overruling the motion for a new trial. Wade, George and'Luke, JJ., concur.” The amended judgment was as follows: “Phosphate Mining Company v. Atlanta Oil & Fertilizer Company, and vice versa. Upon consideration of these cases after rehearing it is ordered that the judgments rendered therein on July 26, 1917, be hereby adhered to except that the judgment on the main bill of exceptions is by consent of counsel affirmed in so far as the recovery had upon the first count of the declaration is concerned. It is further ordered that the entry of judgment on the main bill be hereby vacated, and that in lieu thereof the following be now entered: ‘July 26, 1917. The following judgment was rendered: Phosphate Mining Company v. Atlanta Oil & Fertilizer Company. This case came before this count upon a writ of error from the superior court of Fulton county; and, after argument had, it is considered and adjudged that the judgment of the court below be affirmed as to the recovery had upon the, first count of the ^plaintiff’s petition; and that it be reversed as to the second count because the court erred in refusing a new trial. Wade, George, and Luke, JJ., concur.’ ” The application on which the original judgment was amended was as follows: “Now comes the Phosphate Mining Company, plaintiff in error on the main bill of exceptions in the above ease, and moves that the judgment of the court rendered herein on the 26th of July, 1917, be amended by the court directing that the judgment of *the superior court'of Fulton county on the first count of the plaintiff’s petition in the court below be affirmed. This 15th'.day of August, 1917. (Signed) Evins & Moore, attorneys for movant. We consent to the foregoing. (Signed) King & Spalding, attorneys for Atlanta Oil & Fertilizer Co.” This application was duly filed in office on August 17, 1917, and was made a part of the record in the case.

The case was accordingly sent back for a new trial on the second count of the petition, and was again tried on April 8, 1918, during the March term of Fulton superior court. At that trial the entire record of the ease, including the brief of the evidence adduced at the former trial, was introduced, besides other testimony tending to show the market value of phosphate rock at the various times when under the contract between the parties the defendant had bound itself to receive and pay for certain specified amounts—this last testimony being positive and undisputed, as the term covered by the contract had expired before this trial, and the testimony as to market value on the various dates was no longer opinion evidence merely. At the conclusion of the entire evidence the court on motion directed á verdict in behalf of the plaintiff, for $39,080.39, over the objection of the defendant, the defendant- insisting that the court had no right to withdraw the case from the jury, but that the issues of fact therein should be submitted to the jury for determination, and that the court had not the right to assess the damages, and that the amount claimed as damages was not correct. The defendant excepted to the direction of the verdict, upon the ground that under the facts of the case and the decision ’of the Court of Appeals therein (20 Ga. App. 660), the case'should have been submitted to the jury upon the several issues raised by the pleadings, as, under the evidence in the case, issues were presented for determination by the jury; and that the court erred also in fixing the amount of damages and in withdrawing that issue from the jury, and in holding that the testimony demanded a finding for $39,080.39, and in directing a verdict therefor. There were othér assignments of error which need not be referred to or considered.

When this case was formerly passed upon by this court (20 Ga. App. 660, 93 S. E. 532), the opinion delivered in behalf of the court by George, J., made the following explicit and distinct ruling: “While one who repudiates an executory contract before the time of performance has arrived cannot call upon the opposite party to make'forward contracts for Iris benefit, for the purpose of lessening the damages of the party at fault, nevertheless, if the opposite party accepts the tender of the breach, he is bound to abate his damages by- reason of circumstances of which he ought reasonably to have availed himself. Rhoem v. Horst, [178 U. S. 1, 30 Sup. Ct. 780, 44 L. ed. 953]; Civil Code (1910), § 4398. The tender of an anticipatory breach does not change the time at which the damages are to be estimated, nor affect the general rule “of damages; but if the tender is accepted by the opposite party, that party acts thereafter under the rule of avoidable consequences. . . While the fact that the buyer of fertilizer material had sold its factory and discontinued its business, which fact was communicated to the seller, raised no legal obligation on the part of the seller to consent to a rescission of the contract, or to accept the buyer’s transfer- of the contract to its successor, yet, under the circumstances appearing in the present record, and in view of the special provisions of the contract, it was for the jury to decide whether the seller had in fact consented to the transfer of the contract.” It will be observed therefrom that this court indicated that one. of the issues of fact for determination in the case was whether or not, if in fact the Phosphate Mining Company accepted the tender of the breach of the contract by the Atlanta Oil & Fertilizer Company, the first-named company had properly complied with its obligation to abate the damages by reason of circumstances of which it ought reasonably to have availed itself. In other words and in simple plain English, did the phosphate company, after acceptance of the tender of the anticipatory breach of the contract, make the proper legal effort to lessen or mitigate the damages which might be expected to flow to it from the breach of the contract? The decision held that under the circumstances appearing in the record then before the court, “and in view of the special provisions of the contract,” an issue of fact was created for decision by the jury, as to whether or not the seller had in fact consented to the transfer of the contract from the Atlanta Oil & Fertilizer Company to another corporation. It is clear, from a reference to the record of the former trial, that the court, • in referring to “circumstances appearing in the present record,” meant such circumstances as might tend to support a finding that the phosphate company had impliedly or otherwise consented to tbe transfer of the contract. In the 11th division of the former decision this court again made clear its ruling that certain issues were involved in the second count of the plaintiff’s petition which should be submitted at thfe next trial to a jury, the following language being used: “The errors complained of in the cross-bill of exceptions will not require a reversal of the judgment, but since the issues involved in the second count of the plaintiff’s petition are to he again submitted to a jury, instructions appropriate to the facts appearing in the record, and not inconsistent with the rulings made in the 7th and 8th divisions of this decision, should be given to the jury.” Obviously then, under the distinct ruling of this court now under discussion, which became the law of this case, equally binding upon this court and the trial court wherever applicable, the trial judge was required to submit to the jury for determination certain questions of fact, and consequently it was error on his part to disregard these instructions and'direct a verdict.

It is insisted by the defendant in error that the court did not-err in directing a verdict, since the last trial occurred after the expiration of the contract, and the undisputed evidence as to the market value of the commodity on the dates specified by the contract was no longer opinion evidence merely, but was definite and positive testimony as to actual facts, from which the court could make an exact computation; and that there was no error in directing a verdict, for the further reason that notwithstanding the ruling in the 7th, 8th, and 11th divisions of the former decision of this court in this case, to the effect that certain issues of fact should be subriiitted to the jury for determination at another trial of the' second count of the petition, these issues were res adjudicata, because they must necessarily have been considered and passed upon by the jury in arriving at a verdict in favor of the plaintiff on the first count of the petition, and the judgment overruling the motion for a new trial on the first count had been affirmed by thist court. The entire record of the former trial was introduced in evidence at the trial now -under review, in order to establish the fact that all the issues, except merely the’ value of the commodity at the various times named in the contract, had been adjudicated by the verdict on the first count and the opinion of this court and the affirmance of the judgment sustaining that verdict. It is unnecessary to examine the record of the previous trial in connection with the verdict returned on the first count of the petition and in connection with the judgment of this court sustaining the verdict on that count, in order now to" determine whether at the last trial the judge could correctly hold as an original proposition, from an inspection of the entire previous record, that the issues raised under the second'count had been necessarily involved also in the determination by the jury of the respective rights of the parties under the-first count. This court has expressly determined judicially that “none of the questions discussed in the foregoing divisions of this decision [which include the questions referred to in the 7th, 8th and 11th divisions of the .decision] arose on the trial of the first count.” In other words, whether right or wrong, and whether an inspection of the record might or might not support the view that the identical issues referred to in the 7th, 8th and 11th divisions of the former decision were in fact involved in the trial of the first count of the plaintiff’s petition, it has been definitely decided, and that decision is irrevocably fixed, that these issues did not árise on the trial of the first count.

Much might be said to support the view that in fact the questions which it is insisted were determined by the judgment affirming the verdict on the first count were not actually involved therein, considering the alleged date when the breach of the contract was tendered and all the facts, circumstances, implications, and deductions which might be determined from the entire record; but satis superque est—to repeat what has already been said—that the former judgment of this court is the law of the case, and this court has postively and definitely held that under the pleadings and the evidence at the former trial, the issues which the court then held should be submitted to a jury at another trial on the second count of the petition did- not arise or were not involved in the trial of.the first count. The entire 11th division of the former decision is as follows. “The petition in the instant case contained two counts. On the first count, predicated on the theory that under the terms of the contract between the parties the defendant company failed and refused to receive and pay for a certain quantity of phosphate rock, which under the contract it had obligated itself to take, the plaintiff recovered a substantial verdict. On the second ■ count, which was predicated upon an alleged anticipatory breach of the entire contract to the end of its term, the plaintiff recovered nominal damages only. None of the questions discussed in the foregoing divisions of this decision arose on the trial of the first count, and neither party is complaining in reference thereto. This court will, in its discretion, affirm the judgment of the court below refusing a new trial on the first count of the plaintiff’s 'petition, and, on "account of errors in rejecting evidence and in giving to the jury instructions not in accordance with the rulings announced in this decision, order a new trial only as to the issues involved in the second count. The errors complained of in the cross-bill of exceptions will not require a reversal of the judgment, but since .the issues involved in the second count of the plaintiff’s petition are to be again submitted to a jury, instructions appropriate to the facts appearing in -the record, and not inconsistent with the rulings made in the 7th and 8th divisions of this decision, should be given to the jury.”

Construing the entire opinion and the various paragraphs thereof in connection with each other, it is clearly evident that this court, in affirming the judgment refusing a new trial on the first count of the plaintiff’s petitiotí, based this affirmance on the consent of counsel for both parties, which appears in the foregoing statement of facts, and it is recited in this opinion that “neither party is complaining” of the verdict on the first count which was affirmed. Under the agreement of counsel, the language actually employed by this court in its former decision, and all the facts and eircum stances of the case, it is obvious that the affirmance of the judgment overruling the motion for a new trial on the first count of the plaintiff’s petition was without prejudice to the rights of either party touching the issues raised by the second count. The issues referred to in the 7th and 8th divisions of the former decision of this court have not, therefore, been adjudicated, so far as the second count of the petition is concerned, and under the former ruling of this court they should have been submitted to the jury for consideration, for while there was additional evidence offered at the last trial, the entire record of the first trial was in evidence, as has already been said; and since it has been determined by this court that the 'evidence adduced at the former trial raised certain issues for determination by the jury, if necessarily follows that these issues were again presented for solution by the jury "when that identical evidence was presented, notwithstanding it was supplemented by other and further testimony.

We hold, therefore, that the trial judge erred in directing a verdict contrary to the direction given by this court in its former opinion. It is unnecessary to consider the remaining exceptions.

Judgment reversed.

Jenkins and Luke, JJ., concur.