text:
    11291.
    HINES, director-general, v. HENDRICKS.
    1. In its statement of the plaintiff’s contentions the charge of the court was not subject to the exception that it was unauthorized by the pleadings and evidence.
    2. The instructions complained of as casting upon the defendant the burden of disproving negligence if the plaintiff showed simply that he was “ injured while' a passenger on the line of the defendant ” do not require a new trial on the ground that they authorized a recovery for injury not caused in the manner alleged in- the plaintiff’s petition. There was no evidence that he was injured in any other manner than that alleged.
    3. Extraordinary diligence to protect a passenger from injury is due as well to a passenger on a mixed freight and passenger train as to one on a passenger-train, although a jolt which might manifest a lack of such diligence in the operation of a passenger-train might properly be regarded as reasonably incident to the operation of the other kind of train. In either case it is a question for a jury whether the jolt amounted to a lack of extraordinary care. The instructions to the jury on this point in the present case were not subject toi the exceptions taken.
    Decided October 13, 1920.
    4. Although the plaintiff’s petition does not state with desirable clearness that the damages sued for are intended to include compensation for lost time and expenses of sickness, it is manifest that this was the intent of the pleader, and, in the absence of a demurrer, the allegations of thg petition were sufficient to authorize the introduction of evidence as to these elements of damages and the charge of the court thereon.
    5. When considered with its context, the instruction complained of as expressing an opinion as to what was established by the evidence is not subject to that exception.
    6. There being no evidence tending to show that the witness was an expert, further than that he was a flagman of a train on a particular occasion, the exclusion of a certain part of his testimony, as to whether the train, after rolling only five or six feet, could stop so suddenly as to throw a man off his feet, was not cause for a new trial, especially since other testimony by him to the same effect was admitted.
    7. The amount of the verdict is not so large as to indicate bias or prejudice on tlia part of the jury.
    Action for damages; from Walker superior court-—-Judge Wright. December 23, 1919.
    Hendricks was injured while he was a passenger on a mixed freight and passenger train, and he sued for damages, alleging that when the train stopped at his destination — a regular stopping station—and passengers were getting olí, and he had gotten near the door of the coach he was in, intending to get off, but before he reached the door, “the train was started with a hard jerk, and, moving a few yards, the engine was suddenly stopped and the coaches jammed, which threw the plaintiff forward through-the door with great force” against the guard-railing of the platform, and he thus received personal injuries described; that the defendant’s agents or employees failed to exercise due care for his protection and were grossly negligent in the management and operation of the train when he was trying to get off, and that the said negligence was the proximate cause of the aforesaid damage. There was no demurrer to the petition. The trial of the case resulted in a verdict against the defendant for $1,7.00.

      J. Branham, Maddox & Doyal, Rosser & Shaw, for plaintiff in error.

      T. J. Harris, Henry & Jackson, contra.
   Jenkins, P. J.

The exceptions taken to the charge of the court as improperly stating the contentions of parties are without substantial merit. The court in stating the plaintiffs contentions said": “Tie says that . . while he was going to alight from the train it started off again and then gave a sudden jerk and sudden stop and threw him, and that as a result of this sudden jerking and pulling he was thrown,” etc. The defendant contends that the negligence set forth in the petition was the sudden stopping of the train, and that therefore this statement of the plaintiff’s contentions was unauthorized by the pleadings and evidence. The alleged sudden starting and almost immediate sudden stopping of the train are the acts of negligence charged in the petition which, taken together, constitute the proximate cause of the injury. The petition was not demurred to. While.it is true that in an action for damages against a railway company the plaintiff must rely only upon those acts of negligence set forth by the petition (Central of Ga. Ry. Co. v. Weathers, 120 Ga. 475, 478, 47 S. E. 956; Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230 (2) 47 S. E. 581), in this case the contention of the plaintiff as to the negligence of defendant in thus suddenly starting and almost immediately and with suddenness stopping the train was made by his petition and covered by his evidence substantially as outlined in the charge.

2. The presumption which arises against a railway company upon proof of injury from the operation of its cars extends only to the acts of negligence charged by the petition. Central of Ga. Ry. Co. v. Weathers, supra; Ga. So. & Fla. Ry. Co. v. Thornton, 144 Ga. 481, 484 (87 S. E. 388). The defendant complains of the following excerpts from the charge of the court: “I charge you, however, in connection with this burden of proof, if the plaintiff shows he was injured while a passenger on the line of the defendant, that would cast upon the defendant-the burden of showing that even though he was injured it was not through-any fault of theirs, that they were not negligent in causing the injury, or that he by the exercise of ordinary care could have avoided the injury to himself; and this burden upon the part of the defendant is carried just in the same way that I have explained to you as to the plaintiff; that is, by a preponderance of the testimony, an outweighing of the testimony, as it may have the greater proving force to your minds.” The exception taken to this is “that the same was too general and indefinite,- in that it cast the burden on the defendant, upon mere proof of injury in any way, irrespective of whether or not it was caused in the manner alleged in the petition,” and “that the defenses of the defendant were limited to the matters referred to, and excluded the defense that whatever injuries plaintiff received were not caused in the manner stated in the petition.” The exception does not authorize a reversal of the judgment, since there is no evidence in the case, either for the plaintiff or the defendant, going to show that the injury occurred in any other or different manner than the way alleged; the contest in -the case being as to the severity of the jolt, and as to whether plaintiff exercised ordinary care in protecting himself, and upon the extent of the injury.

In response to a request made by the defendant, the judge charged the jury as follows: “Any person who voluntarily takes passage on a freight-train, or a mixed freight and passenger train, is entitled to look for such security only as that mode of conveyance is reasonably expected to render, and takes the risk of such jolts and jerks as are- usual and incident to the operation of such a train.” Complaint is made that immediately following this instruction, the court went on to state as follows: “But I charge you in this connection, that this does not relieve the defendant from the duty, which I have just explained to you, of using extraordinary diligence to protect the passenger from injury; and what is extraordinary diligence in any particular .case is a matter exclusively- for the jury to determine, and in determining whether they used this extraordinary diligence or not you are authorized to take into consideration the character of the train, that is, whether it was a mixed train, or a straight passenger-train, or a freight-train.” The two excerpts, when taken together, correctly state the principle of law involved. A jolt which might manifest a lack of extraordinary care when given to a passenger-train might, when occurring on a freight or mixed train, be taken as being reasonably incident to that character of conveyance, but in either case the standard of care is the same. It was a question for the jury to say whether the jolt, as given by this particular kind and character of train, occurring at the particular time and under the particular circumstances shown, amounted to a lack of extraordinary care.

The 7th paragraph of the plaintiff’s petition is as follows: “That on account of said injuries to plaintiff’s person, he has suffered and will suffer great and lasting physical pain and mental anguish; has been compelled to lose much valuable time, wherein he could have earned from $25 to $30 per week at his trade as a barber; has had to go to great expense for medicine and doctor bills necessary to his recovery from said injuries, and his capacity to earn money at his trade has been greatly reduced; and while before his injury plaintiff could stand and work at his trade all day, since and on account of said injuries it is with great difficulty and pain that plaintiff can stand to do a day’s work at his trade of barbering, and part of the time he can not do it.” In paragraph 8 it is stated that “said negligence on the part of the defendant’s employees was the proximate cause of the aforesaid damage and expense to plaintiff, for which he sues the defendant for $5000.00 as personal damages.” In paragraph 9 the plaintiff says that “in addition to suing for $5000.00 as personal damages, plaintiff sues the defendant for $2000.00 as punitive damages.” No demurrer either general or special was entered to the petition. Certain grounds of the motion for a new trial make the point that the court erred in admitting evidence relative to lost time, expense, etc., and also in instructing the jury along that line, since it is contended that the suit was limited to a recovery for personal injuries, and did not seek to recover for such items. While the petition does not state with desirable clearness that the damages sued for are intended to include the items referred to, still we think that such is the manifest purpose and intent of the pleader, and in the absence of special demurrer it was sufficient to authorize the evidence and the charge in reference thereto.

Exception is also taken to the charge of the court in reference to the loss of time and expense for the further reason that the defendant contends that this portion of the charge amounted to an expression of opinion by the judge as to what had been established by the evidence. The judge charged the jury as follows: “The first thing you are to determine is whether or not the plaintiff is entitled to recover, under the evidence and the law as given you in charge. If you find he is entitled to recover, then go further and see how much he is entitled to recover. If you find he is not entitled to recover, of course you will not investigate the question of amount, but stop there and find for the defendant. But, if he is entitled to recover, the plaintiff would be entitled to recover for his loss of time at work, whatever that may have been, and his doctor’s bill and expenses during his sickness, whatever you may find from the evidence that may be; and, in addition to that, if you find he suffered physical and mental pain and suffering on account of the injuries, he would be entitled to recover for that. Now, of course, the loss of time and the expenses of sickness, including doctor’s bill, is a matter of direct proof upon the part of the plaintiff in the ease, and that’s established by evidence, and you must find according to the evidence on that; but as to suffering mental and physical pain and suffering, the only rule of law to govern you there is simply your enlightened conscience as impartial jurors. In other words, if you find the defendant liable, you would give for this pain and suffering just such sum as your consciences dictate, as would be a just compensation for the pain and suffering he underwent.” The portion of the excerpt just quoted which the defendant thus excepts to is as follows: “Now,-of course, the loss of time and the expenses of sickness, including doctor’s bill, is a matter of direct proof upon the part of the plaintiff in the case, and that’s established by evidence, and you must find according to the evidence on that.” Were we to construe the portion of the charge thus complained of standing by itself and alone, it might be susceptible to the criticism offered, but when we construe it, as we must, in connection with what immediately preceded and especially with what immediately followed, we do not think that the jury could have been misled into believing that they were instructed to accept as true the evidence along this line, but rather that the judge was intending to distinguish between the rule for allowing damages for pain and suffering — where they would have to be governed by their enlightened consciences under the facts as shown-—-and the rule in allowing damages for lost time and expenses—which by their nature are susceptible of more positive proof. As was said by the Supreme Court in Mayor d?c. of Savannah v. Waldner, 49 Ga. 316, “A plaintiff cannot claim for what is capable of almost exact proof, without furnishing the jury some testimony to arrive at the measure or amount of the claim.” It seems clear that the trial judge was merely séeking to draw this distinction, and was instructing them that so far as any award for expenses, etc., was concerned, they would be limited in their finding to the direct proof on those matters, the actual sum (quoting his previous language) to be “whatever you may find from the evidence that may be.”

The flagman of the train had testified that it rolled only five or six feet after first coming to a stop, and he was then asked the question: “Moving in this way, would it be possible to stop suddenly, so as to throw a man off his feet.” He answered “No,” and this reply was excluded by the court. “The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible.” Civil Code (1910), § 5876. At the time this testimony was ruled out the only proof submitted which would have tended to qualify this witness as an expert was that he was the flagman on that particular train. An expert is one who by his habits of life and business has peculiar skill in forming an opinion upon the question involved. White v. Clements, 39 Ga. 232. The question as to whether a witness has qualified as an expert is addressed- to the sound discretion of the court. Clary v. State, 8 Ga. App. 92 (2) (68 S. E. 615). Besides, in this case it appears that almost the same evidence, in substance, was in fact admitted, the record showing that this witness testified that “it would not be possible to come together with a sudden, severe jerk or jam, moving at that rate of speed.”

“The question of amount of damages is for the jury, and the court should not interfere unless there is something in the record or in the amount awarded to indicate that the verdict was the result of prejudice or bias on the part of the jury.” Realty Bond & Mtge. Co. v. Harley, 19 Ga. App. 186 (2) (91 S. E. 254); Standard Oil Co. v. Reagan, 15 Ga. App. 571 (84 S. E. 69). Under the application of this rule, the evidence does not warrant disturbing the verdict as being excessive.

Judgment affirmed.

Stephens and Smith, JJ., concur:


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    11297.
    Newkirk v. Burts & Goodman.
    Decided October 13, 1920.
   Jenkins, P. J.

1. “ The right to rescind a horse-swap exists only by virtue of such special terms of the contract of sale as may so authorize, • or, in the absence of any such agreement, by reason of knowingly false and fraudulent misrepresentations of existing facts, made to the complaining party, whereby he was induced to act to his injury. A mere breach of an express warranty which was the controlling inducement to trade, unaccompanied by any such fraudulent misrepresentation of fact, will not afford ground for the avoidance of such a eontra'ct.” Battle v. Livingston, 21 Ga. App. 809 (95 S. E. 316); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100). The charge of the court was not inadequate, nor was it prejudicial to the defendant as being in conflict with the foregoing rule. The jury was instructed as follows: “If you believe, from the evidence submitted to your consideration, that the defendant made this trade with the plaintiff, and that, in doing "so, a fraud has been perpetrated as alleged in this case, an actual fraud by the defendant upon the plaintiff, and that the same was knowingly perpetrated by the defendant, I charge you that it would be your duty to find for the plaintiff. On the other hand, if you should believe, and should so find by a preponderance of the testimony, that a fraud was perpetrated, but not knowingly by the defendant, you should find in favor of the defendant and against the rescission of the contract.” The jury were authorized, but not compelled, to find that the alleged warranty made by the defendant in this case was accompanied by knowingly false representations as to an existing and material fact, to wit, that the defendant had kept and successfully used the mule to make a crop, whereas he had in fact owned the mule for a period of only three weeks prior to the swap. The jury were thus authorized by the evidence to find that the plaintiff was defrauded in having relied upon this alleged statement of the defendant, both as tending to show the condition of the mule and the opportunity of the defendant to know the facts represented by him to be true.

2. Exception is taken to this portion of the charge: “Look to the evidence and find in favor of that party with whom you believe the preponderance of the testimony lies,” the contention being that the defendant was thus compelled to bring forth preponderating evidence, whereas the rule of law places this burden upon the plaintiff only. This portion of the charge has no reference to where the burden of proof lay, but relates to another subject; and besides, in another portion of the charge, the judge instructed the jury as follows: “I charge you that the burden is upon the plaintiff in this case to prove the allegations as contained in the petition, by a preponderance of the testimony.”

Judgment affirmed.

Stephens and Smith, JJ., concur.

January Trover; from city court of Sylvester — Judge Monk. 20, 1920.

Passmore & Forehand, for plaintiff in error.

Perry & Williamson, contra.


text:
    11303.
    MULLINS v. DuVALL.
    Decided October 13, 1920.
    A cause of action against a physician for injury to his patient from negligence and lack of skill of an attendant or servant of the physician is shown by the allegations of the petition in this case, from which it appears that in the absence of the physician the patient went, as directed by him, to the attendant to have a hypodermic injection administered in accordance with the physician’s course of treatment of the patient, and that in its administration by the attendant the needle used for the purpose was broken off in the patient’s arm, where it remained until swelling of the arm and fever resulted and the needle was discovered, and in consequence the patient suffered permanent injuries; it being alleged that the attendant was incompetent, negligent, and unskilful in administering the hypodermic injection, and that the physician knew or ought to have known of this incompetency, and did not use proper care in selecting his assistant or agent.
    Action for damages; from city court of Atlanta — Judge Eeid. January 5, 1920.
    Tbe petition alleged that the petitioner was damaged in the sum of $10,000 by reason of the following facts: “Your petitioner shows that in June, 1919, she was being treated for pellagra by defendant, and had been under his treatment for several months; that every other day he injected a serum of some kind in her left arm with a hypodermic needle; that she had taken about 36 of said treatments; the name of said serum or medicine used by him plaintiff does not know. 2. Petitioner alleges that she has been examined by expert physicians since, and she alleges that she has not now pellagra, nor has she ever had such 'ailment or disease, and that said defendant was treating her for something that she did not have, and that his diagnosis of her case was wrong, as she has since his treatment found out, and that she did not know this at the time he was treating her. 3. Petitioner alleges that she went to defendant’s office on Davis street many times, and on several occasions he requested that' a negro woman in liis office administer the hypodermic injection, but that she always refused; that on the 5th day of June, 1919, she went to his office and that he was out on his vacation, and, believing it to be necessary to take said injections, and having been previously instructed by defendant that if he were out of his office the negro assistant should administer the treatment, she, being greatly worried and not knowing what to do, finally consented, and said negro assistant or attendant did administer the hypodermic. 4. Petitioner alleges that in a few hours after said injection in her left arm it began to swell and became inflamed, and caused her the most excruciating pain, so that she could not sleep day or night; that her arm swelled to such extent that it was three or four times its normal, size; that she in consequence had septic fever, with a temperature of 104; that she within two days called in another physician, who treated her arm daily for more than six weeks; that blood poisoning was imminent from infection; that in about one week the arm burst and discharged great quantities of pus and matter, and in it she discovered that the needle used by the said negro assistant to defendant had been broken off in her arm when she gave the hypodermic aforesaid. 5. Plaintiff alleges that she still suffers greatly with her arm, and that it has become numb and almost useless to her, not being able to hold anything in her hand, which has also become stiff and numb, and her fingers also are stiff, and that she has lost the use of her arm and hand and fingers. 6. Tour petitioner alleges negligence in the defendant in having an incompetent assistant, recommended by him and who served his patients in his absence. 7. That he was himself incompetent and negligent in treating her for a disease that she never had. 8. That said negro assistant when she broke off the needle in her arm knew it, and should have at once removed said needle, which she did not do, and this also is alleged as an act of negligence. 9. That Dr. DuYall, when he returned, knew of her condition, and, being her family physician, should have made every effort to relieve her of her suffering, but that he did not come to see her or inquire about her condition; and this is alleged also as an act of negligence of defendant. 10. Petitioner further shows that on account of the injury above set out she is unable to attend to her household duties, that she still suffers greatly from her arm, that her injuries are permanent, that she is 40 years old and in the prime of her life; she has been rendered a cripple and is maimed for life. 11. In view of the above facts, that she has been damaged by defendant in the sum of ten thousand dollars.”
    The petition was amended as follows: “ Now comes the plaintiff in above-stated case and asks leave of the court to make the following amendment to paragraph 8 of her declaration, at the end of said paragraph: That said defendant DuYall is a person professing to practice surgery and administer medicine for compensation, that his colored agent and assistant, Zera Etta Johnson, was incompetent, negligent, and unskilful in administering the hypodermic aforesaid, and that said DuYall knew or ought to have known of her incompetency, and that he did not observe proper care in selecting said agent and assistant, who in this instance was acting within the scope of her authority; and that she did not exercise a reasonable degree of skill and care in operating on plaintiff, which caused her injuries above set out, nor did defendant exercise a reasonable degree of skill and care in treating her; all to her injury as aforesaid. The serum used by defendant and the treatment cost him about $3.00 for each treatment, all to her injury.”
    The defendant filed general and special demurrers, and the trial judge passed an order sustaining the general demurrer and dismissing the petition, and the plaintiff excepted. The defendant’s contentions on the demurrer are: “ (a) That the relation of physician and patient had' ceased, a physician having a right to temporarily leave his practice, and that such a relation is a personal and confidential one, and can not exist during the absence of the physician. (&) That the negro woman who performed the operation in question was neither (1) an assistant, nor (2) an agent of the defendant; for such an act cannot be performed by an agent. Also, if there had been any holding out or offer to make the negro his agent, such offer was not accepted and the authority of the agent was thereby revoked. Furthermore, if any agency had been created, it was a special or limited agency, and the agent exceeded her authority, the scope of which the plaintiff was bound to take knowledge of, and cannot hold the principal for an act of a special or limited agent, which is without the scope of her authority.”

      Eb. T. Williams, W. I. Heyward, for plaintiff.

      Mallet & Bell, for defendant.
   Jenkins, P. J.

1. It appears from the petition, with reasonable clearness, that when the patient called at the office of the physician, to receive the usual hypodermic injection, it was at the proper time and in accordance with the regular adopted routine of treatment, as prescribed and employed by the defendant physician; that the relation of physician and patient had not terminated, since the adopted course of treatment, the nature of which was unknown to plaintiff, was still in process of regular administration, and no provision had been made for its discontinuance, but, on the contrary, general directions had been given to the plaintiff, whereby the treatment was to be given by the defendant’s attendant or servant- in charge whenever he might be absent from his office. The petition excludes the idea that the plaintiff exceeded the authority, since the dealings had with the agent pertained only to the one particular act specifically authorized. It is a general proposition of law that where one holds another out as his special agent, the principal is bound by the agent’s apparent authority to do the particular thing thus authorized, and to employ all usual and necessary means that may be reasonably required, in the due, proper, and ordinary performance of the particular purpose of the appointment. Wise v. Mohawk Rubber Co., 23 Ga. App. 255 (98 S. E. 100). A physician is liable for the negligent acts of one while acting as his agent or assistant. 22 A. & E. Enc. L. 805 (m). It is not our opinion, however, that a physician or surgeon can engage in the practice of his profession by proxy. This is not the purport of the holding. Where a physician or surgeon sends another as his substitute, to treat or perform an operation upon a patient, and the services of the substitute are accepted, the patient will be presumed to have reposed confidence in the professional capacity of the substitute, not as an agent but as the principal, and will be taken to have relied upon him as a physician to exercise his own knowledge, skill, and discretion. Thus, where a physician, on leaving town or in other ease of need, recommends or even employs another physician or surgeon to treat a patient for him, he would not, in the absence of what would amount to negligence in the selection, be liable for the negligence or lack of skill of the substitute practitioner. 21 R. C. L. 395. In the instant ease, however, the physician did not delegate his functions and duties as a physician. In authorizing or directing the patient to allow his own employee to perform for him and in his stead this particular service in his absence, he did not renounce any part of his functions as the sole physician in the case. Nothing whatever was left to the discretion of the attendant, since what the treatment was to be and when it was to be administered were determined by the line of treatment adopted by the physician himself, and the authority given to the attendant related solely to the one definite and specific act authorizing the mere physical administration of the prescribed treatment. So far as the question of the amount of skill required by the act is concerned, the direction given amounted to his assurance as an expert that the act was not of such character as to require in his absence the services of another physician, but that in such contingency she might with safety receive the treatment as rendered for him and on his behalf by his office attendant or servant. It was upon such implied assurance, rather than upon any confidence in the professional skill and discretion of defendant’s servant, that the patient had a right to rely.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    11369.
    STREETMAN v. BUSSEY.
    Decided October 13, 1920.
    Whether the plaintiff, a '13-years-old boy, was exercising due care for his own protection, according to his age and capacity, in crossing a public road, when struck and injured by the defendant’s automobile, was, under the facts alleged in the petition, a question to be determined by a jury.
    A cause of action was set out in the petition, and the court erred in dismissing the action on general demurrer.
    Action for damages; from Muscogee superior court — Judge Howard. February 9, 1930.
    The petition in substance alleges: that the plaintiff, Dan Street-man, a minor thirteen years of age, suing by his next friend, was engaged as a delivery boy for a milk truck; that the truck was stopped facing west on the north side of the public road leading west from Macon toward Columbus, and directly across the road from Jackson’s store, in the village of Wymiton; that “at all times during the day pedestrians constantly crossed said road to and from Jackson’s store, which is located at the intersection of said Wynnton or Macon road with the Buena Vista road;” that on the day of the injury the plaintiff, being desirous of obtaining a drink of water at said store, started across said road, which at that point was about fifty feet wide; that before he “ attempted to cross said road as above alleged, he looked up and down said road and saw no vehicles of any sort approaching and didn’t see the automobile of defendant, which came up thereafter at a rapid rate, and that he, the said Dan Streetman, passed to the north and around in front of said milk wagon, and could not have seen the automobile of the defendant in the exercise of due care on his part, but that the said defendant could have seen the movement of the body of said Dan Streetman around said milk truck when he started across said road;” that when about half the distance across the road and as he was in the act of crossing it he ■was suddenly and without warning struck and injured by the automobile driven by the defendant, which was approaching from the east and coming up behind the truck at a rapid and negligent rate of speed, to wit, 35 or 40 miles an hour; that the defendant failed to give any sort of warning of his approach, “although defendant had immediately crossed one intersecting highway and was within a few yards of another, and persons were on both sides of said road;” that the defendant failed to keep a lookout for persons who might be expected to be crossing the road at this point, and failed either to stop, slow down, or turn the car aside, as he might have done, in order to prevent injury to the plaintiff. The injuries are described in the petition, and all of the defendant’s conduct set forth above is alleged, to be negligence. The defendant filed a general demurrer, in which he alleged that no cause of action was set out, “because it affirmatively appears from the allegations of said petition that the plaintiff suddenly came from behind the standing truck at a time and place when the defendant could not see and know of his presence and peril, and at a place where defendant was under no legal obligation to anticipate the plaintiff’s presence and peril.” The demurrer was sustained and the suit dismissed.

      F. U. Garrard, A. S. Bradley, for plaintiff.

      Battle & Arnold, for defendant.
   Jenkins, P. J.

The defendant contends that the allegations of the plaintiff to the effect that upon starting around the car and across the street he first looked to ascertain if danger existed, and was unable to discern the approach of defendant’s car, although the driver might at that time have seen the plaintiff, are manifestly incredible, and that the court will not accept, even on demurrer, a statement contained in a petition which on its face could not be true. He contends also that the plaintiff’s act of negligence in suddenly coming out into the road from behind the truck was such lack of care on his part as would necessarily prevent a recovery, despite the age of the plaintiff, since he by his petition charges himself with the degree of knowledge and discretion the exercise of which would have been sufficient to his protection. The determination of questions as to negligence lies peculiarly within the province of the jury. This general rule has been often stated both by the Supreme Court and by this court, and it is only in plain and indisputable cases that the court will be authorized to determine questions of negligence on demurrer (Western Union Telegraph Co. v. Spencer, 24 Ga. App. 471 (1), 101 S. E. 198). But, even if we were to assume, under the state of facts alleged in the petition, that this child was in some degree lacking in care in starting out across the road, it would still be a question for the jury to determine what it was that constituted the proximate cause of -the injury; that is to say, what and whose negligence the injury is properly attributable to. White v. Seaboard Air-Line Ry. Co., 14 Ga. App. 139 (80 S. E. 667); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 418 (91 S. E. 517).

Ordinary care is defined to be that care which every prudent man exercises under the same or similar circumstances. In this case, however, the plaintiff, being a child less than fourteen years of age, was not bound to exercise the ordinary care exacted of every prudent man, but was bound only to exercise due care according to his age and capacity. Kendrick v. High Shoals Mfg. Co., 21 Ga. App. 315 (94 S. E. 987); Park’s Ann. Code, § 3474. In the case of Central R. Co. v. Rylee, 87 Ga. 491 (13 S. E. 584, 13 L. R. A. 634), the Supreme Court used the following language: “Where a child under fourteen years of age is injured and brings his action for the injury, and there is a demurrer to the declaration on the ground that the allegations therein show that the child did not observe due care or could have avoided the injury by the observance of such care, the court may overrule the demurrer, on the ground that prima facie the child did not have sufficient knowledge or capacity to know what was due care, or sufficient capacity to have avoided the injury by its observance, and may invoke the analogy of the criminal law, and hold that the presumption is that the child did not know or did not have sufficient capacity, as was held in the case of Rhodes v. Railroad, 84 Ga. 329. But where there is no demurrer and the case is submitted to the jury, there is no presumption one way or the other, and the jury must find from the evidence whether the child had sufficient capacity at the time of the accident to know the danger, and to observe due care for its own protection. If it has such capacity and voluntarily goes into danger or to a dangerous place, it cannot recover, otherwise it can. Young v. Railroad, 81 Ga. 397, s. c. 83 Ga, 512. It depends altogether upon the capacity of the child at the time of the injury. The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of law either for or against the competency of the child.”

We do not think that because the plaintiff alleges that he in fact exercised “due care,” and set out acts and conduct on his part in support of such claim, in that he sought to look out for danger before attempting to cross the highway, the judge would be authorized, on demurrer, to determine what care should be exacted of the plaintiff, and that the plaintiff failed to meet his obligations. The allegations might well be taken to indicate that the plaintiff was a boy of sufficient intelligence and discretion to know that in crossing the highway he would be subjected to danger from the operation of automobiles, and that it was his duty to use his own discretion, whatever that might be, to protect himself. In the exercise of that discretion, however, conduct or delinquencies which could be taken as amounting to palpable negligence on the part of an ordinarily prudent man might not be accounted as negligence at all when considered as acts or omissions on the part of a boy thirteen years of age. At the time the plaintiff claims that he looked out for approaching cars, the car of the defendant, if traveling at the speed alleged, must necessarily have been a very considerable distance away, since the plaintiff says he had traversed half the distance across the road before he was struck. We think it was for the jury to say whether the plaintiff failed to exercise due care, according to his actual capacity and discretion, both in what he did and the manner in which he did it, before entering upon the highway at the alleged usual crossing place, or whether the proximate cause of the injury was negligence of the defendant in approaching the place of the injury in the manner described. If the injury did not result from the failure of the plaintiff to exercise the degree of care and caution incumbent upon him, and if it was not brought about by the negligent operation, of the defendant’s car, then it would be a mere casualty for which no one would be to blame. This is illustrated in numerous instances where small children unexpectedly place themselves in the immediate path of a car which is being carefully and properly operated.

In the case before us, negligence is charged on the part of the defendant as constituting the proximate cause of the injury, ana we do not think that it necessarily follows from the particular facts and all the circumstances set forth that the plaintiff failed to exercise that degree of care and caution which his actual capacity and discretion might have exacted of him, before entering upon the highway, and that the proximate cause of the accident was his failure so to do. It appears from the petition that the plaintiff had traversed about half of the distance of the roadway, or about twenty-five feet, before he was struck, and questions naturally arise relative to the respective duties owing by the plaintiff and.the defendant in reference to the conduct of each, after the plaintiff had entered upon the highway, as well as the manner of his entrance thereon. Even-after the plaintiff had entered upon the highway it was his duty to exercise that same degree of care and discretion with which one of his age and capacity was actually chargeable under the circumstances; and it was the duty of the defendant to exercise ordinary care and prudence not to injure the plaintiff, even though the plaintiff may have been in some degree lacking in care. The petition charges that the injury could have been avoided by the exercise of ordinary care on the defendant’s part. Viewing all the facts and circumstances as set forth by the petition, we think it was error for the trial judge to dismiss the case on general demurrer. See Moye v. Reddick, 20 Ga. App. 649 (93 S. E. 256); Ware v. Lamar, 16 Ga. App. 560 (2) (85 S. E. 824), in which the facts are somewhat similar to those Itere alleged; and see Ga. L. 1910, p. 92, sec. 5; Park’s Code Supp. 1917, § 828 (dd), in regard to the prescribed duties of a person driving an automobile.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    11372.
    Hughes v. Dannenberg Company.
    Decided October 13, 1920.
    Complaint; from city court of Macon — Judge Guerry. January 30, 1920.

      Dasher & Mann, for plaintiff.

      Hardeman, Jones, Park & Johnston, Richard Curd, for defendant.
   Jenkins, P. J.

The action of the trial judge in granting a second new trial to the defendant, not on account of the verdict rendered but on account of error committed by himself, will not be disturbed, because the charge of the court was in some respects erroneous and in other respects confusing; and, since the verdict, though authorized, was not demanded, the rights of defendant may have been thus prejudiced.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11380.
    Atlanta Milling Co. v. Acme Manufacturing Co.
    Decided October 13, 1920.
   Jenkins, P. J.

Where goods of a certain quality are ordered on contract for future delivery, and goods of an inferior quality are delivered, the measure of damages is the difference between the market value of the goods delivered, at the time and place of delivery, and the value of goods of the character ordered, at the time and place of delivery. Seaboard Lumber Co. v. Cornelia Planing Mill Co., 122 Ca. 370 (50 S. E. 121).

Judgment affirmed.

Stephens and Smith, JJ., concur.

Action on contract; from Fulton superior court — Judge Ellis. January 27, 1920.

The action was on a contract made in June, for the sale of cottonseed meal to the plaintiff, to be delivered in December. The plaintiff alleged that certain quantities of the cottonseed meal delivered contained less ammonia than the percentage of ammonia guaranteed in the contract. As to the measure of damages the trial judge charged the jury that the damages, if the plaintiff was entitled to recover, would be “the difference between the market value of the meal bargained for in June, 1916, to be delivered in December, 1916, at the time and place of delivery fixed by the contract, and the value of the meal actually delivered at the time and place named in the contract.” The verdict was for the plaintiff, and in the defendant’s motion for a new trial, the overruling of which was excepted to, it was alleged that the court erred in giving the instruction quoted above, because “the facts in this case showed that there was a delivery and acceptance of the meal by the buyer, and therefore the measure of damages would be the difference between the price paid and the value of the goods as they actually were at the time and place of delivery, and not the measure of damages as charged by the court.”' Refusal of a request to charge the jury in accordance with this contention was also complained of. These were the only grounds of the motion for a new trial other than the general grounds as to the verdict.

J. W. Bachman, Evins & Moore, for plaintiff in error.

Bryan & Middlebrooks, Troutman & Freeman, contra.


author: Smith, J.

text:
    11528.
    HURT v. FORT et al.

    1. In a suit to recover money upon an alleged contract to convey land or pay a certain sum of money, the petition was too indefinite as to the terms of the alleged contract, the land to be conveyed, and when the conveyance was to be made, and, was insufficient as to the consideration, where the allegations touching these matters were: that in 1899 the plaintiff’s mother-in-law, whose executors were the defendants, “ promised and contracted ” to give him “ one acre ” of “ a large tract of land in Eulton county, State of Georgia, fronting on Peachtree road, near the City of Atlanta,” owned by her, “ or its equivalent in money,—'$5,000” (the sum sued for), “as a special inducement to petitioner to come and live with her; ” that, acting upon this promise, he and his wife moved to Atlanta in 1899, and resided with her until her death in 1917, all the while sharing his portion of the expense of the upkeep of the household; that she repeatedly offered, especially during the last two years of her life, to make a deed to him to one acre of the said land, but through procrastination of both parties the deed was never executed; that he performed all his obligations under the contract, and that she did not •fulfil her part of the agreement.
    Decided October 13, 1920.
    2. Under the statute of limitations, even if there was a valid contract, the action was barred.
    Action on contract; from Fulton superior court — Judge Bell. March 20, 1920.

      Robert P. Jones, Evins & Moore, for plaintiff.

      Rosser, Slaton, Phillips & Hopkins, for defendants.
   Smith, J.

On October 14, 1919, Dr. J. W. Hurt sued Fannie K. Fort and Charles C. Keith, as executors of Mrs. E. P. Keith, alleging substantially, in the petition as amended, that the petitioner was the son-in-law of Mrs. Keith; that in the year 1899, soon after his marriage, said Mrs. Keith insisted upon petitioner and his wife moving to Atlanta and living with her; that Mrs. Keith owned “a large tract of land in Fulton County, State of Georgia, fronting on Peachtree road, near the City of Atlanta, and as a special inducement to petitioner to come and live with her, she promised and contracted to give to petitioner one acre of said land, or its equivalent in money — $5000.” He further alleged, that, “acting upon said promises and consideration,” he and his wife moved to Atlanta in 1899 and resided with the said Mrs. Keith until her death in February, 1917, all the while sharing his portion of the expense of the upkeep of the household; that Mrs. Keith, especially during the last two years of her life, repeatedly offered to make to petitioner a deed to one acre of said land, but through procrastination of both parties the deed was never executed nor the value of the land ever paid to him; that he had performed all his obligations under said contract, and that Mrs. Keith did not during her lifetime fulfil her part of the agreement; that Mrs. Fannie K. Fort and Charles C. Keith are the executors of said Mrs. Keith, and that more than a year elapsed before the bringing of the suit. He alleged also that he had made demand upon the representative of the estate for $5,000, but the demand was refused. He prayed for a judgment for $5,000. To this suit Charles C. Keith, the surviving executor of Mrs. K. P. Keith, filed a general demurrer upon two grounds: (1) that no cause of action is set out in the petition; and (2) that the petition shows on its face that if any cause of action ever existed, it was barred by the statute of limitations. The court sustained the general demurrer, on the ground that the action was barred by the statute of limitations, and the case was dismissed. Held:

The petition is too vague and indefinite as to the contract, in that it fails to set out the terms of the contract, what acre of land was to be conveyed by Mrs. Keith, and when the conveyance was to be made. It also fails to set out when the $5,000, alleged to be the value of the land, was to be paid. In other respects the petition is very vague and indefinite, and it fails to show that the plaintiff suffered any loss, or that he rendered any services to the deceased, or that there was any consideration moving from him to her.

Even if the contract was a valid one, no time is set out in the petition in which the contract was to be performed, and the law will presume in such a case that it was to be performed upon demand, or within a reasonable time; and therefore it clearly appears from the petition that it was many years after the alleged contract was entered into before the death of Mrs. Keith, and that no demand was ever made by the plaintiff for a performance of the contract. Clearly the right of action was barred by the statute of limitations. •

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11553.
    SCARSBROOK V. COHEN.
   Smith, J.

1. “ Landlords shall have a special lien for rent on crops made on land rented from them, superior to all other liens except liens for taxes, to which they shall be inferior, and shall also have a general lien on the property of the debtor, liable to levy and sale, and such general lien shall date from the time of the levy of a distress warrant to enforce the same.” Civil Code (1910), § 3340.

2. “When a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated. If he fails to do. so, the creditor has the right to appropriate at his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties.” Civil Code (1910), § 4316.

Decided October 13, 1920.

Money rule; from Morgan superior court — Judge Park. April 3, 1920.

Hunter Scarsbrook and Louis Cohen contested for priority in the distribution of a fund in the hands of the sheriff arising from the sale of cotton of Cohen’s tenant Dave Thomas under a distress warrant in favor of Cohen, Scarsbrook contending that his lien as a laborer in the making of the crop of cotton was entitled to priority. The verdict was in favor of Cohen. Searsbrook’s motion for a new trial was overruled, and he excepted. The special grounds of the motion were as follows:

1. The court erred in failing to charge the jury as follows: “I charge you that if there had been sufficient cotton delivered to Louis Cohen by Hunter Scarsbrook to pay off the rent on the lands worked by him, and to pay the amount of supplies furnished by said Cohen to said Hunter Scarsbrook, and that sufficient cotton had been delivered off the place to have paid the entire rent, that as to Hunter Scarsbrook it would be a satisfaction of the rent claim of Cohen as to the crops worked on halves by Scarsbrook.”

2. The court erred in failing to charge as follows: “As to Hunter Scarsbrook, Cohen was obliged to make the application of the cotton delivered to him so as to pay off this superior lien for rent, and could not apply it to an inferior lien to the hurt of a cropper who worked on halves on said land, and appropriate the crop of Hunter Scarsbrook to the payment of the debt of Dave Thomas, if you believe that Louis Cohen knew, or had notice to put him on inquiry, as to how the said Hunter Scarsbrook was working with Dave Thomas.”

3. The court did not err in failing and refusing to instruct the jury as set out in the 1st, 2d and 3d special grounds of the motion for a new trial. The language set out in these three grounds does not contain a correct statement of law as applied to the issues in this case, and, in addition to this, no appropriate written request for such instructions was made by the defendant.

• 4. The excerpt from the charge of the court excepted to in the 4th special ground of the' motion for a new trial was not error when taken in connection with the entire charge. The charge of the court taken in its entirety fairly and fully submitted to the jury all the substantial issues in the case.

5, Though the evidence was conflicting, there was evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

3. The court erred in not charging as follows: “ If Louis Cohen knew that Hunter Scarsbrook was working for Dave Thomas on halves, and the crop produced by said Scarsbrook was delivered to said Cohen in a sufficient amount to pay off the debts of said Scarsbrook to Cohen, and a sufficient amount to pay the rent on the land worked by Scarsbrook, then and in that event I charge you that the half of the crop of Scarsbrook raised on the premises of Cohen would be discharged from any lien in favor of Cohen. And it would be your duty to find in favor of the lien of Hunter Scarsbrook.”

4. The court erred in charging the jury as follows: “ I charge you in so far as the superiority of the landlord’s lien for rent upon the crops raised upon the rented premises, the landlord’s lien for rent would be superior to the laborer’s lien. And in the event you find this lien claimed by Mr. Cohen for the rent of said lands for the year 1918 has not been paid off, under the principles of law as will be given you in charge by the court, your verdict should be in favor of awarding the amount of money now in controversy in the hands of the sheriff to Mrs. Cohen, if you reach the conclusion that the amount of money in his hands is not sufficient to pay the balance of the rent due;” without further charging the jury in connection therewith, “that if Louis Cohen had received sufficient rent from the land of his worked on halves by Hunter Scarsbrook with Dave Thomas, and to pay Hunter Scarsbrook’s account, and there was sufficient crop to discharge the rent on the whole place, other than the half of the crop claimed by Hunter Scarsbrook, then and in that event they should find in favor of Hunter Scars-brook the amount of money in the hands of the sheriff, the proceeds of the crops to Scarsbrook, or the half of the said crop worked by Scarsbrook.”

M. C. Few, for plaintiff in error.

E. H. George, contra.


text:
    11568.
    TOWN OF SPARKS v. WILLIAMS.
    Decided October 13, 1920.
    Tlie word “ all,” before' the words “ ordinary and reasonable care and diligence,” in an instruction to the jury that the plaintiff, who sought to recover from the town for injuries caused in falling into an excavation in a street, could not recover if the defendant’s employees exercised “ all ordinary care and diligence,” did not render the charge • subject to exception on the ground that it placed too great a burden upon the defendant.
    The exception to an excerpt from the charge of the court because of alleged error as to the position of the hole into which the plaintiff fell is without merit.
    The verdict was supported by evidence.
    Action, for damages; from Cook superior court — Judge Dickerson. April 23, 1920.
    The petition as amended alleged, in brief, that on May 3, 1915, the plaintiff, in attempting at night to cross to the opposite side of the street from the premises on which she and her husband resided, fell into a hole 2 feet and 6 inches in diameter and about 5 feet deep, which on the 12th of the preceding month the mayor and councilmen of the town had caused to be dug on the edge of the sidewalk on the south side of the street and in front of her residence, for the purpose of setting up a pole for electric wires, • and had allowed to remain open and unguarded, and the existence of which was unknown to her because of her confinement to her home nursing her sick husband during the time of its existence, and that she thus received personal injuries described. It was alleged that the defendant was negligent in allowing the hole to remain open and unguarded, and in failing to place signal lanterns or other lights about it or to have the street at that place sufficiently lighted. The defendant denied the material allegations of the petition and contended that the fall was due to the plaintiff’s own negligence. The verdict was against the defendant, and in a motion for a new trial, which was overruled, it excepted to the charge of the court on the grounds indicated in the foregoing headnotes and in the decision, and alleged that the verdict was unauthorized, for various reasons stated.
    There was testimony to the effect that the hole into which the plaintiff fell was at the edge of the sidewalk and between the sidewalk and a ditch at the side of the street in front of her home; that dirt which had come out of the hole was piled up near it, next to the sidewalk, and that a plank or planks had been placed across the top of the hole by employees of the defendant. The superintendent of the defendant's light plant testified that it was his duty to see that such holes were “in proper shape,” and that lie saw this hole about 7 o’clock “that night” (about an hour before the time when the plaintiff, according to her testimony, fell into it), and the hole was then covered with plank — “some strips of a goods box and some plank”—3 or 4 feet long and 5 inches wide, and about half an inch thick, not nailed down; that this covering was sufficient to hold the weight of an ordinary person, but he did not test it; that no rail or barrier or signal lantern had been placed there, but that the place was well lighted bjr arc-lights in the street. Another witness testified that a piece of board which had been over the hole was found on the edge of the hole when the plaintiff was discovered in it. The plaintiff testified that the hole was dark and she did not see it before she fell into it, and did not discover any covering or plank there, and that there was no light about the hole. There was much testimony on both sides and some conflict as to material facts.

      Jackson & Jackson, William D. Buie, for plaintiff in error,
    cited: Civil Code (1910), §. 898; 13 Ga. App. 86; 10 Ga. App. 709; 2 Ga. App. 369; 93 Ga. 662 (3).

      E. K. Wilcox, L. E. Lastinger, contra,
    cited: 10 Ga. App. 754; Id. 709; 1 Ga. App. 413; 9 Ga. App. 62 (1).
   Smith, J.

1. There was no error, as complained in ground 7 of the motion for a new trial, in charging the jury that “the plaintiff cannot recover of the defendant, the Town of Sparks, if it shall appear to the satisfaction of the jury that the employees of the defendant, the Town of Sparks, exercised all ordinary and reasonable care and diligence.” This is a correct statement of law applicable to the case.

2. Ground 8 of the motion for a new trial complains that “the following charge of the court is error: ‘If you believe, from the evidence in this case, that the defendant, the Town of Sparks, left open a hole on the side of the streets as alleged in plaintiff’s petition, etc.,’” because this charge led the jury to believe that if the hole was not on the sidewalk as alleged in the petition, and was on the .side of the street, as charged by the court, the plaintiff would be entitled to recover. Taken together with the whole charge of the court, which was exceedingly fair to the defendant in the ease, this assignment of error is purely technical and without merit.

3. The 1st, 2d, 3d, 4th, 5th and 6th grounds of the amendment to the motion for a new trial are merely amplifications of the general grounds. There was evidence to support the verdict of the jury, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins., P. J., and Stephens, J., concur.


text:
    11572.
    PARIS v. STATE OF GEORGIA.
    Decided October 13, 1920.
    A surety oil a bond for the appearance of the defendant in a ' criminal ease can not, in answer to a scire facias in a proceeding to forfeit the bond, set up as a defense that when the case was called for trial and postponed until the next day the accused was present in court and the sheriff was in possession of warrants for his arrest but failed to arrest him and allowed him to leave the court; nor that the surety subsequently caused the arrest of the accused in another State and that the solicitor-general failed and refused to apply for requisition papers to bring him back for trial.
    Forfeiture of recognizance; from Taylor superior court — Judge Howard. April 2, 1920.

      Jere M. Moore, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Smith, J.

Where a criminal case was called for trial, and the defendant, who had given bond for his appearance, was present in court, and his counsel made a motion to continue the case, which was overruled, but the case was checked until the next day, and on the next day was again called for trial, and, the State announcing ready and the defendant not- making any answer, the bond given by him for his appearance was regularly forfeited and a scire facias issued against him and the surety thereon, returnable to the next term of the court, it was not a good defense in behalf of the surety that at the time the case was first called for trial and checked until the next day the sheriff had in his possession one or more warrants against the defendant and failed to arrest him or detain him in court.

Neither was it a good defense in behalf of the surety that prior to final judgment on the bond his principal had been, through his efforts, apprehended in another State and put in jail, and the solicitor-general had failed and refused to apply for requisition papers to bring the said defendant back to the State of Georgia for trial; and this is true oven though the surety alleged in one paragraph of his answer that he offered to pay the expenses of securing the requisition and bringing the defendant back for trial. The obligation of the surety was to produce the body of his principal in court to answer the charge contained in the particular indictment for the appearance of the defendant to answer said indictment when the case should be called; and the surety having failed to produce the body of his principal and setting up' no legal defense to the scire facias, the court did not err in striking the answer thereto and entering judgment against the surety. See, in this connection, Penal Code (1910), § 960; Griffin v. Moore, 2 Ga. 331; Williams v. Jenkins, 53 Ga. 166.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11573.
    Paris v. State of Georgia.
    Decided October 13, 1920.
    Forfeiture of recognizance; from Taylor superior court — Judge Howard. April 2, 1920.

      Jere M. Moore, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Smith, J.

This case is controlled by the decision in Paris v. State, ante, 707.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11654.
    Jordan v. Fowler.
    Decided October 13, 1920.
    Action for damages; from Cobb superior court — Judge Blair. June 16, 1920.
    On general demurrer the trial judge dismissed the action, “being of tire opinion that an allegation of special damage is necessary to the setting forth of a cause of action, and that no cause of action is s.et forth.”

      Clay & Blair, for plaintiff.

      Abbott & Wallace, for defendant.
   Smith, J.

In a petition for slander, where the petition alleged that the defendant, in the presence of third persons, used the following language, referring to the plaintiff: “William Pinkney Jordan is a low down lying yellow dog; ” “William Pinkney Jordan is a low down yellow son of a bitch;” “William Pinkney Jordan is a damn low down yellow rotten dog,” and the petition failed to allege any special damage to the plaintiff from these statements, which he alleged were false and malicious, the case came under the fourth division of section 4433 of the Civil Code (1910), which section, defining “slander,” concludes as follows: “fourth, any disparaging words productive of special damage flowing naturally therefrom. In the latter ease, the special damage is essential to support the action.” The court therefore did not err in sustaining a general demurrer and dismissing the suit. See Ford v. Lamb, 116 Ga. 655 (42 S. E. 998), and cases there cited; Jones v. Bush, 131 Ga. 421 (62 S. E. 279); Dallon v. Higgins, 34 Ga. 433; Morris v. Evans, 22 Ga. App. 11 (95 S. E. 385).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11658.
    Waxelbaum & Brothers Incorporated v. Livingston.
    Decided October 13, 1920.
    Complaint; from Webster superior court — Judge Littlejohn. May 22, 1920.

      M. A. Walker, for plaintiff in error.

      J. F. Souter, contra.
   Smith, J.

While the evidence waa conflicting, there was ample evidence to support the verdict rendered, and, the motion for a new trial being based on general grounds only, this court cannot interfere with the judgment of the lower court overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Per Curiam.

text:
    9977.
    Vandevender v. City of Atlanta.
    Decided October 19, 1920.
    Action for damages; from city court of Atlanta—Judge Reid. June 1, 1918.
    In this action the plaintiff sought to recover damages from the City of Atlanta for the destruction of household goods, alleged to have been destroyed by the blowing up of the house in which they were contained, by firemen of the fire department of the city for the purpose of preventing the extension of a conflagration. It was alleged that a fireman prevented the plaintiff from removing the goods from the house, and there were allegations as to the authority of the fireman. The allegations are set out in the answer of the Supreme Court to certified questions from this court, 150 Ga. 443. That court held, in substance, that, as against a general demurrer, the allegations were sufficient to show authority from the city for the acts of the firemen, and liability of the city, under the provisions of section 16-32 of the Civil Code (1910) as to the authority and liability of cities in such cases; and that it was immaterial whether the city, in destroying the property, was exercising a governmental or a ministerial function.

      Pettigrew & Jones, for plaintiff.

      James L. Mayson, J. M. Wood, for defendant.
   Per Curiam.

In accordance with the rules of law governing this case, as set forth by the Supreme Court in response to questions certified to it by this court (150 Ga. 443, 104 S. E. 227), the judgment sustaining a genera] demurrer and dismissing the case is

Reversed.

Jenkins, P. J., and Stephens and Smith, JJ., concur.


text:
    11285.
    Hall v. Glass & Smith.
   Jenkins, P. J.

This case is controlled by the decision of this court in Floyd v. Massachusetts Mills, 25 Ga. App. 519 (103 S. E. 801), the exceptions being taken to the action of the trial judge in sustaining the plaintiif’s demurrer to the defendant’s plea and in refusing to allow an amendment thereto. It not appearing that any final judgment has been entered in the case and that exceptions have been taken thereto, the bill of exceptions must be dismissed. It is directed that the official copy of. the bill of exceptions now of file in the office of the clerk of the trial court shall operate as exceptions pendente lite. Civil Code (1910), §§ 6152-6154.

Decided October 19, 1920.

Complaint; from city court of Dawson — Judge Edwards. January 20, 1920.

Yeomans & Wilkinson, for plaintiff in error.

Parks & Parks, contra.

Writ of error dismissed with direction.

Stephens and Smith, JJ., concur.


text:
    11383.
    Skinner v. Hillis.
    Decided October 19, 1920.
    Trover; from city court of Waynesboro — Judge Davis. January 27, 1920.
   Jenkins, P. J.

1. This being an action in trover to recover cotton alleged to be in the possession of the seller, the sole issue in the trial is that of title to the property in dispute. Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. Rep. 102) ; Barfield Music House v. Harris, 20 Ga. App. 42 (92 S. E. 402).

2. Title to cotton sold by planters and commission merchants, on cash sale, does not pass until it is fully paid for. Civil Code (1910) § 4126; Sell v. Moss, 11 Ga. App. 854 (75 S. E. 985, 76 S. E. 988).

(а) Just as it has been held that the provisions of this statute are applicable to sales by commission merchants and factors on their own account, as well as sales by them as representatives of the planter National Bank of Augusta v. Augusta Cotton Co., 104 Ga. 403, 30 S. E. 888; Savannah Cotton-Press Asso. v. MacIntyre, 92 Ga. 166, 17 S. E. 320), so it has been held that the provisions of this statute are applicable to sales by a planter, without reference to whether the particular cotton involved was produced by Mm or acquired from another. Butler v. Ga. & Ala. Ry., 119 Ga. 959 (2) (47 S. E. 320).

(b) The term “ on cash sale,” as here used, is not confined to sales where the payment of actual money is to be made immediately, but includes all sales where it is expressly understood that the payment of actual money shall not be delayed for any longer period of time than is necessary, in the ordinary and usual course of business. McCall v. Hunter, 8 Ga. App. 612 (70 S. E. 59).

3. It follows that, irrespective of whether or not the contract in this ease was within the statute of frauds, and whatever might be the rights of the plaintiff in a claim for breach of contract, the action in trover will not lie, since, under the statute referred to, the title to the cotton had not passed.

Judgment affirmed.

Stephens and Smith, JJ., concur.

E. V. Heath, for plaintiff.

Brinson & Hatcher, for defendant.


text:
    11412.
    Lambert et al. v. Cook.
    Decided October 19, 1920.
    Action for damages; from Troup superior court—Judge Terrell. March 1, 1920.

      E. A. Jones, M. U. Mooly, for plaintiff in error.

      E. T, Moon, contra.
   Jenkins, P. J.

Under the statute rule of civil liability, the procurer of a wrong is a joint wrong-doer. “In all cases he who maliciously procures an injury to be done to another, whether it be an actionable wrong or a breach of contract, is a joint wrong-doer, and may be sued either alone or jointly with the actor.” Civil Code (1910), § 44G9. The word “ procure,” as here used, does not require the lending of assistance in the actual perpetration of the wrong “ done by another; ” but if one, acting only through advice, counsel, persuasion, or command, succeeds in procuring any person to commit an actionable wrong, the procurer becomes liable for the injury, either singly or jointly with the actual perpetrator. The charge of the court was in accordance with the foregoing statement of law, and the verdict for the plaintiff was authorized by the evidence.

Judgment affirmed,.

Stephens and Smith, JJ., concur.


text:
    11452.
    Hines, director-general, v. Duncan & Nelms.
   Jenkins, P. J.

1. “ An allegation in a petition, that under the facts pleaded the plaintiff is entitled to recover a certain amount, is not an estoppel in judicio which precludes am amendment that under the same facts the plaintiff is entitled to a larger recovery.” Huger v. Cunningham, 126 Ga. 684 (4) (56 S. E. 64); Wilson v. Bush, 22 Ga. App. 83 (2) (95 S. E. 317) ; Danielly v. Cheeves, 94 Ga. 263 (21 S. E. 524).

2. A suit for damages against a railway company on account of the, unauthorized and careless manner in which stock was unloaded from an improvised scaffold may be amended by specifically charging negligence in not having provided safe and suitable facilities for unloading. Augusta & Summerville R. Co. v. Dorsey, 68 Ga. 228; City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318).

3. Where one of the issues was as to the negligence of the defendant in failing fo provide suitable facilities for unloading stock, the fact that precautions may have been taken by the defendant after the injury, in constructing improvements for that purpose, can not justly be taken as an admission of prior negligence; and it was error to allow such proof, over the defendant’s objection. Georgia So. R. Co. v. Cartledge, 116 Ga. 164 (42 S. E. 405) ; Harrell v. Forsyth County, 137 Ga. 550 (73 S. E. 735).

Decided October 19, 1920.

Action for damages; from Madison superior court — Judge W. L. Hodges. March 3, 1920. •

The action was for damages on account of alleged injuries to two mules of a carload of mules shipped by the plaintiffs over .a railroad controlled and operated by the defendant as director-general of railroads. The petition alleged, that when the car of mules arrived at the station to which it was shipped, the depot agent of the railroad company undertook to unload the mules in the absence of the plaintiffs or their agents; that there was no stock-pen at the station, and the agents of the railroad company undertook to unload the mules by a scaffold or approach to the car, temporarily constructed, and in thus unloading them two of the mules were allowed to fall through to the ground and received described injuries, to the damage of the plaintiffs in the sum of $150, and that “said damage was caused by negligent acts of defendant company through its agents.” The court, on demurrer, struck an item of $40, included in the damages sued for, and there remained an allegation that the injuries to the mules “ reduce the actual as well as market value of said mules in the . . sum of $110.” To this was added, by amendment at the trial, an allegation that “ the damage to said mules at the time of injury, reducing the market value of said mules, said mules sustaining the injuries herein alleged, was the sum of „ . $300.00, said mules being cut, bruised, and sprained by falling from the scaffold in being removed from the ear, the original amount being based on damages later than at the time of injury.” The amendment was allowed over the following objections: (1) It is not permissible to enlarge the amount of damages claimed; (2) the amendment does not set forth what were the injuries to the mules; (3) no injuries not known at the time of filing the suit are set forth in the amendment; (4) it is not permissible to increase the amount without alleging additional damages or injuries to the mules, unknown to the plaintiffs at the time of filing the suit, or without showing some other reason for increasing the amount.

4. The contract of affreightment, which was introduced in evidence, did not attempt to relieve the carrier from liability for negligence; and while the charge of the court in reference to the invalidity of any such attempt was correct as an abstract proposition of law, still, since this portion of the charge was not authorized by the evidence, it was probably misleading to the jury and may have been harmful to the defendant. Culberson v. Alabama Construction Co., 127 Ga. 599 (56 S. E. 765, 9 L. R. A. (N. S.) 411).

Judgment reversed.

Stephens and Smith, JJ., concur.

The petition was further amended during the trial as follows: “ Said railroad company, the defendant, was negligent m not maintaining a stock-pen at said station of delivery, and was further negligent in the manner of unloading said stock.” This amendment was allowed over the objections: .(1) The amendment sets forth no cause of action in so far as it alleges that the defendant was negligent in not maintaining a stock-pen at the station of delivery; (2) there was no legal duty on the carrier to maintain such a stock-pen; (3) it is not alleged that the defendant failed to provide safe and proper facilities, or a safe and proper place, for unloading the mules; (4) the amendment attempts to add a new and distinct cause of action.

The trial of the case resulted in a verdict against the defendant for $200. Exception was taken to the rulings stated above and to the overruling of the defendant’s motion for a new trial. In the motion complaint was made as to the admission of testimony to the effect that after the mules were injured, a stock-pen was placed at the station where the injury occurred; this testimony being admitted over the objection of the defendant that it was irrelevant.

After charging the jury as to the contract of affreightment, which had been introduced in evidence by the defendant, that “it fixed the rights of the parties relating to this shipment,” the court charged as follows: “Their rights and liabilities consist of such rights and liabilities as the law imposes upon the parties, and one of the liabilities under the law is that no railroad company can contract against their own negligence or against its own negligence. It is immaterial what contract the railroad company enters into, it can not contract away liability for its own negligence to the public. So, in consideration of this contract, yon should consider it in the light of that law that I have given you in charge.” In the motion for a new trial it is alleged that the court erred in this part of the charge because these instructions were not authorized by the pleadings or the evidence, and amounted to an expression that the defendant had attempted to contract away liability for its own negligence.”

Erwin, Erwin & Nix, Berry T. Moseley, for plaintiff: in error.

Clarence E. Adams, contra.


text:
    11535.
    Central of Georgia Railway Co. v. Thompson.
   Smith, J.

1. Whether or not the frequent and continued use of the defendant’s right of way at the point where the deceased met his death was such as to require the defendant company to anticipate the presence of pedestrians on or near the track, and whether, with such notice and resulting duty, ordinary care was exercised by it, are questions" of fact for determination by a jury. Williams v. Southern Ry. Co., 11 Ga. App. 309, 313 (75 S. E. 572) ; Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 392 (80 S. E. 916); Atlantic Coast Line R. Co. v. Burroughs, 20 Ga. App. 197 (2) (92 S. E. 1010).

2. While it is true that a railroad-track is a place of danger, and one who trespasses thereon is guilty of negligence, yet when the company discovers this negligence, or has reason to anticipate it, and if such a trespasser is on the track in an apparently helpless condition, ordinary diligence requires the use of every means then available to avoid running down and killing him; and if, under such circumstances, this degree of care is not exercised, and death results, the killing will be deemed in law to have been wilful and wanton. Contributory negligence on the part even of a trespasser will not defeat a recovery for a wanton homicide. See Central Railway Co. v. Pelfry, 11 Ga. App. 119, 125 (74 S. E. 854).

3. While it may be assumed that an adult walking on a railroad-track will get off in time to avoid injury to himself, the rule is otherwise as to children of tender years, or persons who appear to be disabled by deafness, intoxication, sleep, or other cause, from taking care of themselves. Western & Atlantic R. Co. v. Bailey, 105 Ga. 101, 102 (31 S. E. 547); Central Railroad v. Brinson, 70 Ga. 207; Baston v. Georgia Railroad, 60 Ga. 339.

4. Applying these principles to the petition as amended, the court did not err in overruling the general demurrer.

5. The petition as amended contained allegations that “ defendant saw deceased on the track; ” that “ defendant saw or ought to have seen deceased on the track; ” and that “defendant’s servants did not sec deceased upon the track.” Certainty of statement is one of the paramount aims of pleading; and the plaintiff obviously-violated this essential rule by basing his case, in the same count, upon such inconsistent allegations as to render it impossible for the defendant to tell whether he was relying on actual or constructive knowledge of the presence of the deceased on the track. It was, therefore, reversible error of the court to overrule a special demurrer pointing out this ambiguity. See Central Railway Co. v. Prior, 142 Ga. 536, 537 (1) (83 S. E. 117). The other special demurrers were properly overruled.

Decided October 19, 1920.

Action lor damages; from Burke superior court — Judge Henry 0. Hammond. April 6, 1920.

H. W. Johnson, for plaintiff in error.

H. J. Fullbright, C. H. & R. S. Cohen, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11616.
    McLEMORE v. BIBB MANUFACTURING COMPANY.
    Decided October 19, 1920.
    1. “A servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes an act of negligence, but the servant, acting under the duty and obligation thus resting upon him, proceeds to execute the command, and is injured as a consequence, the master is liable in damages to the servant for the injuries so sustained.” Whiters V. Mallory S. S. Co., 23 Ga. App. 47 (1) (97 S. E. 453). See also Usry V. Augusta Southern R. Co., 24 Ga. App. 722 (102 S. E. 184), and cases there cited.
    2. The allegations contained in the petition tend to show that the plaintiff (the servant) acted under a direct command of the vice-principal in the performance of a dangerous task, and that he was required to perform such task in a manner different from that in which- his work had theretofore been done. It further tended to show that his injury was caused by latent defects in the machinery which could not have become known to him by the exercise of ordinary care, and that he was not informed as to these defects or the dangerous -condition of the machinery.
    3. The court erred in sustaining the general demurrer and dismissing the case.

      Action for damages; from Muscogee superior court — Judge Howard. May 26, 1920.

      Frank D. Foley, Thomas H. Shanks, for plaintiff.

      Goetchius & Worsley, Jones, Park & Johnston, for defendant.
   Smith, J.

I. J. McLemore sued the Bibb Manufacturing Company, alleging, in substance, that he was an employee of the defendant and was instructed to proceed to the engine-room, or filtering plant, to assist one Hunt, who was in charge of the engine-room, in replacing a broken belt which communicated power from the driving shaft to the agitator; that prior to that time, when it was necessary to repair the belt, it was the custom, to stop the driving shaft by cutting out the small turbine wheel in the engine-room; that he wont to the engine-room in compliance with his instruction, and upon his arrival there he received orders from the master mechanic, who was vice-principal of the master, not to cut out the small turbine wheel in any event, and that it was not to be shut down at any time during the operation of the machinery, as to do so increased the consumption of water through the big turbine wheel and caused additional cost of operation, of which the superintendent complained; that immediately above the driving shaft ivas a platform, and on the top of this platform were two tanks of alum water, and galvanized-iron pipes had been placed therein to conduct the alum water to the agitator; that these pipes had corroded and rusted, causing the water to leak through on the driving shaft between the pulley and the end of the bearing in which the driving shaft worked, and form a glutinous, gummy, and sticky substance, which corroded and roughened the driving shaft; that immediately under the driving shaft was an unguarded walkway about two feet wide, which walkway was about fifteen or sixteen feet from the ground; that the plaintiff was standing on this unguarded walkway, lacing the defective belt, when he was injured in a manner described; that the plaintiff together with Hunt placed the belt around the bearing (which bearing was stationary) in which the end of the driving shaft rotated for the purpose of lacing the belt; that the sticky, glutinous, and gummy substance on the driving shaft could not be seen, because of the rapidity with which the driving shaft revolved and because dust had settled thereon and made the deposit the same color as the driving shaft; that in lacing the bolt it slipped from the stationary bearing to the driving shaft, where the roughened, glutinous, and gummy substance caused it to adhere and stick, and it wrapped around the driving shaft, caught the plaintiffs arm and produced the injuries complained of.

The various acts alleged to be negligence are set forth in the petition as follows: “(a) in demanding, requiring and ordering .your petitioner to repair and replace said belt while the main driving shaft was rotating, and issuing instructions for the small turbine wheel not to be stopped while said belt was being relaced, repaired, and replaced; (&) in permitting the pipes and connections of the alum tank to become corroded, rusted, and leaky, so that the alum water dripped through the floor above and deposited a sticky and gummy substance upon and corroded the main driving shaft between the bearing and the pulley wheel; ,(c) in placing or permitting to be placed in said alum tank, galvanized-iron piping, which alum water would corrode, rust, and eat up, instead of lead piping, or piping of other material or metal, which alum water would not corrode, rust, or deteriorate and make holes in; (d) in not repairing said piping and causing the same to be inspected and repaired when the same began to leak and drip through upon the driving shaft between the pulley and the bearing; (e) in failing to have the gummy and corroding alum deposit removed from said driving shaft prior to the ordering of the replacing and lacing of the belt thereon; (/) in failing and refusing to warn your petitioner of the dangerous condition and the leaky condition of the conduit pipes which carried the alum water from the alum tank; (g) in ordering your petitioner to repair said belt without stopping the turbine wheel which drove the main driving shaft, well knowing that the gummy and glutinous deposit of alum water made such a method unusually hazardous and dangerous; (li) in failing to inspect said shaft, and in failing to inspect the conduit pipes convejdng the alum water from the tanks and in failing to warn your petitioner against each defect; (i) in failing to warn jrour petitioner against one and all of the above enumerated defects, well knowing that said defects made the undertaking to repair said belt unusually and abnormally hazardous.”

The trial judge sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

It is not necessary to add anything further to what is said in the headnotes.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11622.
    Molho v. Johnson.
    Decided October 19, 1920.
    Trover; from city court of Savannah-—Judge Bourke. May 22, 1920.
    Molho sought to recover from Johnson by trover an automobile bought by the defendant from Conway, who had obtained it from the plaintiff in a trade which the plaintiff contended was not completed. The verdict was for the defendant.
    1. For the reasons that “ an erroneous idea as to the meaning of preponderance of evidence” was conveyed to the jury by the quoted instruction on that subject, and that, coming in the charge in the order that it did, “ without charging fully the law on preponderance of evidence,” it coulcl be construed as an expression of opinion that the state of facts on which the judge had just charged was not fully proved, the first ground of the amendment to the motion for a new trial alleges that the court erred in charging as follows: “ If the plaintiff in this case agreed with one Conway to purchase a certain business and personal property, and in pursuance of such transaction delivered and conveyed an automobile in part payment of the money, with the intention then and there on the part of Molho to pay the balance upon some subsequent date, I charge you that Conway would be authorized to sell the machine to Mr. J ohnson or any other person. If the machine had not been delivered to Conway, or if it had been in his possession — that is, Conway’s possession'—'but with the understanding upon the part of Molho and Conway that the title would not pass until it had been investigated by counsel, then lie would not be authorized to sell the machine. I charge you, however, that you must base your verdict in the case upon the feature which carries the preponderance of evidence. I charge you that if the car had been delivered to Conway without any restrictions, and had been delivered to him as part payment in the transaction, and the plaintiff had entered into possession of the property and exercised acts of ownership over- it, under these circumstances Conway would be authorized to sell the machine.”
   Smith, J.

1. Tlio excerpt from the charge of the court complained of in the 1st ground of the amendment to the motion for a new trial contains a correct statement of the law applicable to this caso and was not erroneous for any of the reasons alleged.

2. While in the excerpt from the charge of the court complained of in the 2d ground of the amendment to the motion for a new trial the use of the word “incriminating” was Inaccurate, the whole charge on the subject of impeachment of witnesses by contradictory statements fairly stated the law on this subject, and the inaccuracy in this particular does not require a reversal.

{a) The evidence justified the charge on impeachment of witnesses by contradictory statements.

3. The evidence was sufficient to authorize the verdict,' and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

2. For the reasons that “ no foundation was laid for impeaching the witness, and it was not proven that he made the statements about which he was asked,” and that in charging as to “alleged incriminating contradictory statements” the use of the word “incriminating” was calculated to prejudice the jury against the plaintiff’s evidence or to make the impression that he had committed perjury or an offense against the law, it is alleged that the court erred in charging as follows: “A witness may be impeached by contradictory statements made by him as to material matters involved in the case. Before this can be done it is incumbent that the witness’s attention be called to the time® place, and circumstances of the alleged incriminating or contradictory, statements. If you believe that the witness has been successfully impeached in in the mode mentioned, you should disregard his testimony. The question of the credibility of the witness is a matter solely and exclusively for the jury to determine, as is the question of whether or not the witness has been impeached.” The ground in which these instructions are complained of states: “Witness was asked the question, Did you not tell Mr. J ohnson in my office, in my presence, that you paid Conway $150, and had delivered him the car on account of the business F ’ He denied making this statement. Mr. Johnson, the defendant in the case, testified that Mr. Molho told him in Major Richter’s office that he paid Conway $150j in addition to giving him the electric ear for the business.”

721

Columbus E. Alexander, for plaintiff.

George H. Richter, for defendant.


text:
    11628.
    Wright v. Wright.
    Decided October 19, 1920.
    Trover; from city court of Greensboro — Judge Brown. May 3, 1920.

      M. C. Few, for plaintiff in error.

      Miles W. Lewis, contra.
   Smith, J.

1. The only special ground of the motion for a new trial relates to alleged newly discovered evidence of a certain witness. “ If • the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Civil Code (1910), § 6086. No such affidavits were presented in this ease. Moreover, the alleged newly discovered evidence was merely impeaching in its character, and not such as probably would change the result on another trial.

2. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

3. The writ of error in this case being manifestly without merit, and evidently sued out for delay only, the prayer of the defendant in error that ten per cent, damages be awarded against the plaintiff in error, ■ as provided in section 6213 of the Civil Code of 1910, is granted. ■

Judgment affimned, with damages.

Jenkins, P. J., and Stephens, J., concur.


author: Broyles, C. J.

text:
    11898.
    Antonopoulas v. Black, judge.
   Broyles, C. J.

1. Where one convicted of a capital felony has filed a certified bill of exceptions to the judgment overruling his motion for a now trial, the granting of a supersedeas is a matter of course, and can be enforced by mandamus. Spann v. Clark, 47 Ga. 369; Malone v. Hopkins, 49 Ga. 221. Where, however, there is a conviction of a lesser offense, the filing of such a bill of exceptions does not operate as a supersedeas and the judge is not required to order a supersedeas until the defendant has given bond in a sum fixed by the judge or has filed an affidavit in forma pauperis. Penal Code (1910), § 1104.

2. On an application for mandamus to compel the trial judge to grant a supersedeas of the judgment in a case in which there has been a conviction of a crime other than a capital felony, where it appears that a certified bill of exceptions was duly filed, but that no bond was given nor pauper’s affidavit filed, the application must be denied.

Decided October 20, 1920.

Application for mandamus.

C. Vernon Elliott, Callaway & Howard, for plaintiff.

(a) This ruling is not affected by the fact that the judge refused to assess the ainount of the supersedeas bond, since the Supreme Court in Fountain v. Crum, 148 Ga. 272 (96 S. E. 337), ruled that this court is without jurisdiction to issue a mandamus to compel the judge to assess the amount of a bond in such a case.

Mandamus nisi denied.

Bloodworth, J., concurs. Luke, J., absent on account of illness.


text:
    11390.
    Pitts, administrator, v. Rape.
    Decided November 2, 1920.
    Complaint; from, city court of Houston county — Judge Riley. February 9, 1920.

      Marlin & Marlin, for plaintiff in error.

      M. Kunz, contra.
   Jenkins, P. J.

1. “ A charge stating substantially the law that admissions should be scanned with care, and cautioning the jury not to give them more meaning than they are justly entitled to, was not erroneous.” Stewart v. DeLoach, 86 Ga. 729 (2) (12 S. E. 1067); Phoenix Ins. Co. v. Gray, 113 Ga. 424, 430 (38 S. E. 992).

2. While a court of record lias plenary control of its judgments during the term at which they are rendered (Jones v. Garage Equipment Co. 16 Ga. App. 596, 85 S. E. 940), still it is mandatory that they shall in all cases conform to the true meaning and intent of the verdict. Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (5) (58 S. E. 244) ; Mangel v. White Crown Fruit Jar Co., 20 Ga. App. 339 (93 S. E. 307). Thus, in a suit on a note, where the plea filed is that of complete payment, and where a verdict is rendered in favor of tlio defendant, it is beyond tlie power of the judge, either in term time or thereafter, to enter up a judgment in favor of the plaintiff in a named amount, although the evidence! of the defendant himself in support of his plea of payment might have demanded such a verdict. It was the duty of the judge on motion to set the verdict aside, as being contrary to evidence.

Judgment reversed.

Stephens and Smith, JJ., concur.


author: Stephens, J.

text:
    11471.
    Doster v. State of Georgia.
    Decided November 2, 1920.
    Condemnation under liquor law; from Barrow superior court — Judge Cobb. February 25, 1920.

      Richard B. Russell, Richard B. Russell Jr., for plaintiff in error.
    W. O. Dean, solicitor-general, contra.
   Stephens, J.

1. Where a case proceeds to trial against two defendants without objection, and there is introduced evidence by one .of the defendants, and no evidence is introduced by the ’other defendant, the plaintiff is entitled to open and conclude the argument; and an exception by the defendant who introduced no evidence, to a ruling of the trial judge denying him the right to open and conclude the argument, is without merit. King v. King, 37 Ga. 205.

2. Evidence that an automobile was found disabled and partially wrecked in a public road, that the inside of the automobile was wet and saturated with a liquid that smelt strongly of corn whisky, that there was found near the automobile, on the side of the road under a wire fence, an imprint of a keg, and close thereby in the bushes several kegs were found, one of which contained a liquid, and all smelling strongly' of corn whisky, is sufficient to warrant the inference that the automobile was engaged in transporting intoxicating liquors along the public road, contrary to law.

3. The trial judge did not err in admitting evidence to the effect that, about twenty minutes after the automobile was wrecked, several men came up in another automobile and went into the woods in the neighborhood of the wrecked automobile and found some kegs, which they placed in their automobile and hauled away, and that an hour and a half after the alleged wreck several kegs and a jug which smelt strongly of whisky were found in the neighborhood of the wreck. Such evidence was relevant to the issue and tended to establish the fact that the disabled automobile had been engaged in transporting intoxicating liquor.

4. There was evidence to support the verdict condemning the automobile as the property of the defendant upon the ground that it was, with his knowledge, engaged in transporting intoxicating liquor along a public road in the county, contrary to law.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.