text:
    10133.
    SOUTHERN EXPRESS COMPANY v. THE STATE.
    Decided February 1, 1919
    1. Under the act passed by the General Assembly of the State of Georgia at its extraordinary session held in March, 1917, pure alcohol for medicinal purposes can not be legally shipped from one point to another, both of which are in the Statq of Georgia.
    2. Under .the law referred to. above, the act of transporting aleoholie liquors is a separate and distinct offense from that of having,' controlling, and possessing such liquors.

      (Certiorari granted by the Supreme Court.)
    Indictment for violation of prohibition law; from Mitchell .superior court—Judge Harrell. September 2, 1918.

      Pope & Bennet, Robert C. & Philip H. Alston, for plaintiff in error. R. C. Bell, solicitor-general, F. A. Hooper, contra. .
   Bloodworth, J.

The Southern Express Company was indicted for violation of the law passed by the General Assembly of Georgia at its extraordinary session held in March, 1917. The indictment contained two counts, the first charging .that the defendant “did then and there transport, ship and carry from "Valdosta, Ga., to Camilla, Ga., both being points within this State, spirituous, vinous, malted, fermented, alcoholic, and intoxicating liquors. and beverages, the last named point, to wit, Camilla, Ga., being in the county of Mitchell, and said defendants did so transport,. ship, and carry said liquors and beverages in the said county of Mitchell.” The .second count alleged that the said company did “unlawfully and with force and arms, in the county aforesaid, have, control, and possess spirituous, alcoholic, and intoxicating liquors.” The case was submitted to the judge on the following agreed statement of facts: “The Southern Express Company was a corporation and common carrier at all times herein mentioned. In April, 1917, said express company received for transportation, from the Mashburn Drug Company, which was at all times herein mentioned a wholesale druggist of Valdosta, Ga., at said Valdosta, Ga., one gallon of pure alcohol, to be transported by said Southern Express Company to Dr.,H. G. Eussell at Camilla, Ga., and did transport the same from said Southern Express Company’s office in Valdosta, Ga., to its office in Camilla, Ga., in Mitchell county. Said alcohol was not delivered by said express company to Dr. Eussell, but was seized in the office of said express company by the sheriff at Camilla, Ga. Dr. Eussell was at all times mentioned herein a practicing physician of Camilla, Ga., but was not a pharmacist or apothecary holding license' as much from the State Board of Pharmacy, but kept a stock of drugs and medicines, costing at wholesale from «$100 to $200 in his office at Camilla, Ga., for use in putting up his own •prescriptions and dispensing medicines from his own office, and in his practice of his profession as a doctor of medicine; and said alcohol was wanted by him for medicinal purposes in connection with said stock of drugs and medicines. He had ordered the same from said Mashburn Drug Company of Valdosta, Ga., arid the Southern- Express Company did transport the same for said Dr. Eusscll from said Mashburn Drug Company, -which was undertaking to fill said order therefor. Camilla and Valdosta are both points within the State of Georgia, and said alcohol was conveyed from Valdosta, Ga., to Camilla, Ga., and into the county of Mitchell, and was in said Southern Express Company’s custody at its office in Camilla, in Mitchell county, for the purpose aforesaid, when seized by the sheriff. Subsequently said Eussell applied in due form to the ordinary of Mitchell county for a permit to receive said alcohol for medicinal purposes, stating in said application,that the business or occupation of applicant was that of a physician, said application being supported in due form by the affidavits of said Eussell and a certificate of two citizens of Mitchell county, as required by law, and said application was approved and granted by said ordinary, and said sheriff then delivered said alcohol to said Eussell. All of the above stated' transactions occurred in the month of April, 1917, and prior to April 11, 1917, the date when said special presentment was returned and filed. Neither said defendant nor any agent or officer thereof intended to violate any law in said transaction or knew that it was a violation of the law to do any of sueh'things, if it was such in fact.” The trial judge rendered a judgment against the defendant, and it excepted.

1. In the brief of one of the counsel for the plaintiff in error, the issue to be settled is thus stated: “The case can be stated in one question, to wit: Can a wholesale 'druggist doing business in Georgia ship alcohol under the restrictions contained in section 3 of the act of the legislature of the State of Georgia approved March 28, 1917, to a practising physician who is the sole proprietor of a drug-store in the State of Georgia?” We are convinced that this question must be answered in the negative. Section 1 of the said act is as follows: “Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that from and after the passage of this act it shall be unlawful for any common carrier, corporation, firm or individual to transport, ship or' carry, by any means whatsoever, with or without hire, or cause the same to be done, from any point without this State to any point within this State, or from place to place within this State, whether intended for personal usa or otherwise, any spirituous, vinous, malted, fermented or intoxicating liquors, or any of the prohibited liquors or beverages, as are defined in act approved November 17, 1915, being "an act to make clearer and more certain’ the prohibition laws of this State, etc., or any alcoholic compound or malt or liquors whether intended for beverage purposes or not, but which can be diluted, and when so diluted may be used as a beverage and will produce intoxication. It shall be unlawful for any corporation, firm, person or individual to receive from any common carrier, corporation, firm, person or individual, or to have, control or possess, in this State, any of said enumerated liquors or beverages whether intended for personal use or otherwise, save as is hereinafter excepted.” It will be noticed that the first portion of the section just quoted deals with the transportation of intoxicating liquors, and absolutely prohibits their transportation “from any point without this State to any'point within this State, or from place to place within this State." (Italics ours.) The liquors “defined in the act approved November 17, 1915,” just referred to, embrace all kinds of intoxicating liquors, as follows: “ (1) alcohol, alcoholic liquors, spirituous liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whisky, brandy, rum and gin; (2) vinous liquors and beverages; (3) all malted, fermented or brewed liquors of any name or description, manufactured from malt, wholly or in part, such as beer, lager beer, near-beer, porter and ale and all brewed or fermented liquors and beverages in which maltose is a substantial ingredient, whether alcoholic or not or whether intoxicating or not; (4) and any drinks, liquors or beverages containing one-half of one per cent of alcohol or more by volume at 60 degrees Fahrenheit ; or any other liquids or liquors manufactured or sold, or otherwise disposed of, for beverage purposes, containing said amount of one-half of one per cent of alcohol or more; (5) any intoxicating bitters or beverages by whatever name called; (6) all,liquors and beverages or drinks made in imitation of or intended as a substitute for beer, ale, wine or whisky, or other alcoholic or spirituous, vinous, or malt liquors, including those liquors and beverages commonly known and called near-beer.” Ga. Laws, Ex. Sess., 1915, p. 79, sec. 1. Thus it will be seen that if section 1 of the act approved March 28, 1917, stood alone, it would absolutely prevent the transportation of alcohol “from any point without this State to any point within this State, or from place to place within this State.”

Section 2 of the act approved March 28, 1917, is as follows: “Be it further enacted by the authority aforesaid, 'that nothing herein contained shall prohibit the use of. pure alcohol for medicinal purposes as is prescribed in sections 426, 427, 428, 429 and 430 of the Criminal Code of 1910, said alcohol, however, to be shipped, received and possessed only as is provided in section 3 of this act.” It will be observed that this section provides for “the use of pure alcohol for medicinal purposes as is prescribed in sections 426, 427, 428, 429 and 430 of the Criminal Code of 1910.” Section 430 of the Criminal Code just referred to is as follows: “Nothing in the preceding sections of this Article shall be so construed as to prevent wholesale druggists from selling or furnishing alcohol in wholesale quantities to regular licensed retail druggists, or to public or charity hospitals, or to medical or pharmaceutical colleges. All wholesale druggists shall be required to keep a complete record of all their sales of alcohol, which record shall at all times be open for inspection to the regular authorities of such counties or cities in which such wholesale stores are located.” The mention, of section 430 in section 2 of the act approved March 28, 1917, causes counsel for plaintiff in error to insist that section 2 of the act approved March 28, 1917, among other things, “preserved the life of sections 426, 427, 428, 429, 430 of the Criminal Code of 1910, and added thereto .by reference the provisions which are set out in section 3; it thereby brought into section 2 the terms of section 3; the purpose of this was to make the same requirements as to shipments of alcohol from points within the State to other points within the State as were made as to shipments from points without the State to points within the State.”

We can not agree with this 'Conclusion of learned counsel. While section 2 of the act approved March 28, 1917, provides for the .use of pure alcohol, as provided in sections 426 to 430, inclusive, of .the Penal Code of 1910, this same section provides: “said alcohol, however, to be shipped, received and possessed only as is provided in section three of this act." (Italics ours.) The ■ word “only,” as here used, is exclusive, and while under this section ■ (2 of the act of 1917) alcoholic liquors after being received can be used, as .prescribed by sections 426 to 430 inclusive, they can be “shipped, received and possessed only as is provided in section 3 of this act.” What does section 3 of said act say in reference to shipping alcohol? So much thereof as is necessary for determination of the .question at issue is as follows: “any common carrier may transport, ship or carry from any point without this State to any point within this State, pure alcohol to be received only by any practicing physician who is the sole proprietor of a drug-store, licensed druggists, pharmacists, manufacturers, chartered colleges, chartered hospitals, or State institutions, and to be used only for medicinal, mechanical and scientific purposes not contravening in any way the prohibition laws of this State, under the following conditions:” (then follow the conditions). This section does not make any provision whatever for the shipping of alcohol “from place to place within this State.” Construing together sections 1, 2, and 3 of the act under consideration, it seems to us that the only logical conclusion that can be reached is that pure alcohol for medicinal purposes can be “shipped, received and possessed” only when transported, shipped, or carried “from any point without this State to any point within this State.”

2. Under the act approved March 28, 1917, the act of transporting alcoholic liquors as set out in the first count of the indictment is a separate and distinct offense from that of having, controlling, and possessing alcoholic liquors as charged in the second count thereof.

3. The agreed statement of facts shows that the defendant was guilty on both counts of the indictment, and the judgment is

Affirmed.

Broyles, P. J., concurs.

Stephens, J.,

dissenting.

■ The questions here presented for determination are, first,' is it a violation of the criminal laws of this State for a common carrier, upon the conditions set forth in the agreed statement of facts, to haul and transport, from one point within this State to another point within this State, wholesale shipments of pure alcohol; and, second, is. the possession by such carrier of such alcohol for the purposes of such transportation likewise a violation of the criminal laws of this State? Answering the first question in the negative would eliminate and dispose of the second question, since if it be not unlawful for the carrier to transport alcohol as above set out, it certainly would not be unlawful for such carrier, for the'purpose of effecting such transportation, to have such alcohol in its possession and control. ■

, The prosecution in this case is brought under what is popularly called the “bone dry” act of 1917. Section 1 of this act provides that “it shall be unlawful for any common carrier, corporation, firm, or individual to transport . . from any point without this State to any .point within this State, or from place to place within this State, whether intended tor personal use or otherwise, any spirituous, vinous, malted, fermented or intoxicating liquors, or any of the prohibited liquors or beverages, as are defined in the Act approved November 17, 1915, being ‘an Act to make clearer and more certain’ the prohibition laws of this State,” etc. The act of 1917, in section 1, also provides that it shall be unlawful for any “corporation, firm, person or individual . . to have, control or possess in this State, any of the said enumerated liquors or beverages whether intended for personal use or otherwise, save as hereinafter excepted.” The prohibited liquors above referred to by •reference to the prohibition act of 1915 include pure alcohol. Without more, therefore, the defendant corporation and common carrier would be guilty of the offense charged.in both counts of the indictment, the one for transporting, and the other for having in possession such prohibited liquors.'

By way of defense, the defendant, admitting the facts charged in both counts of the indictment, relies upon the provision of section 3 of the act of 1917, claiming that it received for shipment at a point within this State pure alcohol in wholesale quantities from a wholesale druggist for the purpose of transportation to another point in this State, and to be delivered to a person authorized to receive the same under the terms of the exception provided for in section 3 of this act. The case, therefore, turns upon the proper construction to be placed upon section 3 of the act of 1917, which section reads as follows: “Be it further enacted by the authority aforesaid, that nothing herein contained shall prohibit the use of pure alcohol for medicinal purposes as is prescribed in sections 436, 437, 438, '439 and 430 of the Criminal Code of 1910, said alcohol, however, to be shipped, received and possessed only as is provided in section 3 of this act.” Section 3 of the act of 1917, therefore, modifies the broad and sweeping terms of the preceding section making it unlawful to transport or possess alcohol and other prohibited liquors therein mentioned, by expressly providing that jmre alcohol of a certain description and for certain purposes as prescribed in a former act of the legislature may be “shipped, received and possessed only as provided in section 3 of this Act,” which said section 3 provides for the receipt, under 'certain restrictions and by certain designated, parties, of shipments of pure alcohol when transported by a common carrier into this State from points without this State. It seems, therefore, that the clear intent of the act of 1917, despite the exhaustive terms in its first section absolutely prohibiting the transportation or possession for any purpose of intoxicating liquors generally, including pure alcohol, is to permit the possession or transportation of pure alcohol for certain purposes, under certain' conditions to and from certain designated and authorized persons or parties. This intent is manifest, not only by the terms of section 2 and section 3, but by the title of the act making it “unlawful to transport,” or “to have, receive, possess or control,” such liquors, excepting in the former case “alcohol and wine under certain restrictions and limitations,” and in the latter case, “alcohol for medicinal, mechanical and scientific purposes.” Thus the act of 1917 sanctions and legalizes the possession and transportation of pure alcohol for certain purposes under certain well-defined' restrictions. Indeed it had .been the settled policy of this State, prior to the enactment of the act of 1917, to .authorize the sale and use of pure alcohol for medicinal purposes. This was expressly provided in the first state-wide prohibition law of 1907, referred to, and declared and reaffirmed in the act of 1915. (Acts 1907,- p. 81; Acts 1915, Ex. Sess., pp. 100, 10.1, 103; Acts 1916, p. 72).

It is clear beyond .question that by the precise terms of the act of 1917, as set out in section 3 thereof, a common carrier may legally transport, under the restrictions therein provided as to delivery, etc., pure alcohol from a point without this State to a point within this State. Can such a shipment of alcohol by a common carrier be legally made under the terms of this act as set out in section 2 thereof from a point within this State to another point within this State? I think it can, under certain restrictions and for certain designated purposes. Section 2 of the act, as has already been pointed out, provides that “nothing herein contained shall prohibit the use of pure alcohol for medicinal purposes as is prescribed in sections 426, 427, 428, 429 and 430 of the Criminal Code of 1910, said alcohol, however, to be shipped, received and possessed only as is provided in section 3 of this Act.” By reciting and re-enacting said code-sections, it expressly saves and preserves the prohibition act of 1907 in so far as this act permits the “use of pure alcohol fon medicinal purposes.” The act of 1907, which had never been repealed, but expressly preserved (Acts 1915, Ex. Sess., p. 89, sec. 24), being thus declared and rerenacted by the act of 1917, and by the terms of the latter act made a part thereof, the latter act must be read and construed as if these sections of the act of 1907 were copied and reproduced therein. Nunes v. Welliseh, 12 Bush (Ky.), 363. The act of 1907, so far as it serves our purpose here, provides in section 430 of the Penal Code of 1910, as follows: “Nothing in the preceding sections of this Article shall be so construed as to prevent wholesale druggists from selling or furnishing alcohol in wholesale quantities to regular liscensed retail druggists, or to public or charity hospitals, or to- medical or pharmaceutical colleges. All wholesale druggists shall be required to keep a complete record of all their sales of alcohol, which record shall at all times be open for inspection to the regular authorities of such counties or cities in which such wholesale stores are located.” It is therefore lawful for wholesale druggists in the State of Georgia to possess and sell to certain designated parties in wholesale quanties pure alcohol for medicinal purposes. Pure alcohol, therefore, having been continuously recognized by the legislature as a legitimate article of commerce, and its importation from other States being expressly permitted and provided for as set out in section 3 of the act of 1917, it is hardly conceivable that inlraslaie traffic and transportation therein would be considered and regarded as criminal, except by an unambiguous and unqualified legislative enactment.

If there be any doubt, therefore, as to the legislative intent to legalize such intrastate shipments the doubt should be resolved in favor of the legality of the same. Therefore, the clause in section 2 of the act of 1917, which provides that “said alcohol, however, to be shipped, received and possessed only as is provided in section 3 of this Act,” should not tie construed as meaning that the phrase “said alcohol” refers back to, and has reference only to, the phrase “pure alcohol,” appearing a few words back towards the beginning of this section, but will be construed as having reference to alcohol mentioned in the recited code-sections 426 to 430 contained therein. Giving to this danse in section 2 of the act of 1917 the first construction would be in accordance with the contentions of the'State, and would be as if said section read as follows: “nothing herein contained shall prohibit the use of pure alcohol for medicinal purposes, . . said alcohol, however, to be shipped, received and possessed only as is provided in section 3 of this act.” This would mean that section 3 would be exhaustive as to the transportation of pure alcohol for medicinal purposes, and therefore only interstate shipments as provided therein could be legally made. But giving to this clause the second construction would be equivalent to its reading as follows: “nothing herein contained.shall prohibit the use of pure alcohol for medicinal purposes as is prescribed in [section 430 of the Penal Code providing that ‘nothing in the preceding sections shall be construed as to prevent wholesale druggists from selling or furnishing alcohol in wholesale quantities t’o regular licensed retail druggists, or to public or charity hospitals, or to medical or pharmaceutical colleges’], said alcohol, however, to be shipped, received and possessed only as is prescribed in section 3 of this act.” Placing this latter construction, which I think is correct, upon section 2 of the act of 1917, intrastate shipments of alcohol under certain restrictions .áre permitted and legalized. The alcohol mentioned in code-section 430, just quoted as from section 2 of the act of 1917, being alcohol manifestly sold in this State and by wholesale druggists in this State, could only be shipped from a point within this State, and if received as provided in section 3 of said act of 1917, said section 3 providing for a reception in this State only, it could only be received in this State. The latter construction being equally as plausible as the former, and, moreover, being favorable to the defendant in a criminal prosecution, I am constrained, in accordance with the well- ■ recognized maxim that a criminal statute should be construed in favor of innocence, to adopt this latter construction and to conclude that section 2 of the act -of 1917 legalizes intrastate shipments of pure alcohol under certain restrictions, which alcohol-shall, in the-terms of the act of 1917, “he shipped, received, and possessed only as prescribed in section 3 of this act,” providing for interstate shipments. . '

I understand my colleagues in the majority opinion to hold that section 2 of the act of 1917 goes no further than to preserve and secure the right only to use pure alcohol for medicinal purposes as prescribed in sections 426 to 430 of the Pénal Code/-and that the concluding clause in this section with-íeference to shipping, receiving, and possessing pure alcohol, instead of providing for the shipment of such alcohol by the parties' nan/ed in the code-sections referred to,-—such as wholesale druggists,—operates as a precautionary proviso guarding the áct' agáinst a construction that would permit alcohol to be shipped otherwise than in interstate shipments coming into this State as provided in section 3 of the act of 1917. This position, to my mind, is untenable. If this be the proper construction to be placed upon section 2 of this act, the clause, “said alcohol, however, to be shipped, received and possessed only as provided in section 3 of this act,” is mere surplusage and adds nothing to the meaning of the act. It is a mere vermiform appendix which can be cut out and dispensed with without harm to the body of the act. If section 3 were'exhaustive as to shipment, receipt, and possession only when coming in interstate shipments from points without the State, section 2 would as well read as if the above-quoted clause were omitted and stricken entirely therefrom. The transportation of alcohol mentioned therein, necessarily 'intrastate, would then be prohibited under the provisions of section 1, and only interstate shipments as construed in the majority opinion, and as provided in section 3, could move in this State. It is a well-recognized principle of statutory construction that the legislature means something by every provision contained in a statute, and that all provisions therein should be construed as adding*to or giving to the statute a meaning or construction different to that attached to the remaining part of the statute with the provision in question eliminated. Applying this rule, and giving to this clause a construction that would add to or modify the meaning of section 2 were this clause omitted, the only' conclusion that could be arrived at would be that s’ection 2, with this clause retained, .provides for shipments of alcohol by parties authorized to sell it under the code-sections mentioned therein, the same being parties within this State such as wholesale druggists; and when such shipments are received “as provided in section 3,” they would be received at points within this State. Giving to this clause such a construction, section 2 of the act of 1917 must therefore be construed as recognizing and legalizing intrastate shipments.

Furthermore, each and every word in a statute is supposed to have a distinctive meaning, and is to be given a construction accordingly. Otherwise it is uselessly inserted. The clause referred to provides that alcohol shall be “shipped, received and possessed.” (Italics mine.) Giving, therefore, • to the words “shipped,” “received,” and “possessed” each a separate 'and distinct meaning, there are three ideas contained in this clause: the subjective idea of shipping, the objective idea of receiving, and the passive idea of possessing. All three of these are'applied by section 2 to alcohol mentioned in code-sections 426 to 430. Shipping in the subjective sense is going out from or leaving the shipper, the opposite of receiving. Used in this sense when applied to alcohol mentioned in code-sections 426 to 430, it is necessarily applied to alcohol within this State, which, of course, cannot be shipped in this sense of the term otherwise than from a point within this State. Applying to the word “shipped” any other meaning would render it objective, and would attribute to it the sense of coming in towards the point of destination. This latter idea is covered by the word “received.” Therefore, in order to give the word “shipped” any significance whatever and to concede that the legislature meant something by the insertion of this word in the statute, the word “shipped” must be given the construction first suggested, which could only mean that alcohol already in this State, when shipped, must be shipped from and start from a point within this State. Of course, when the alcohol mentioned in' these code-sections is “received” or “possessed,” it must necessarily be received or possessed within this State. Any other conception would be absurd. It will be noticed in 'this connection that when the legislature, in section 3 of the act of 1917, the section following section 2 containing the clause under consideration, uses the word “shipped” in the objective sense,—the sense of coming towards the point of destination,—where it refers to the receipt in this State of incoming shipments from without the State, uses the phrase “have shipped.” This would indicate that the word “shipped” used in this clause in the act is to be given the subjective construction suggested.

The word “shipping” is defined by Mr. Justice Hall in Robertson v. Wilder, 69 Ga. 345, as “putting the cargo into a vessel.” Webster’s New International Dictionary defines the verb “ship,”— “to put for transportation aboard a vessel.” The Century Dictionary defines it,—“to put or take on board a'ship or vessel; as to ship goods to Liverpool from New York. To send or convey by ship. To deliver to a common carrier . . for transportation, . . as to ship by express;” quoting from Child’s Ballads,—

“'The tane is shipped at the pier of Leith,

The tother at the Queen’s Feme.”’

Bouvier’s Law Dictionary defines “shipper” as “one who ships or puts goods on board a vessel’ to be carried to another place.” Abbott’s Law Dictionary, referring to the word “skipper” says: “ Shipper generally means one who places his goods on board a vessel for transportation.” Rapalje & Lawrence’s Law Dictionary says a “shipper” is “the owner of goods who entrusts them on board a vessel for delivery abroad.” See 7 Words & Phrases (First Series), 6487; 4 Words & Phrases (Second Series), 571. In State v. Carson, 147 Iowa, 561 (136 N. W. 698, 140 Am. St. B. 330), it is held, “The words “ship’ and 'shipments’ are used to express the idea of goods delivered to carriers for the purpose of being transported from one place to another. -. . The ordinary meaning of the word 'shipped’ is to load for transportation.” In Bowes v. Shand, L. R. 21 App. Cas. 455 (House of Lords), the court was' unanimous in the opinion that the word “shipped/’ according to its natural and ordinary signification, was “the putting of goods on board.” It was said in that case by Lord Hatherley, “I think the meaning of the word 'shipped’ is sufficiently understood by this time in commerce. But if it were heeded, I think we have sufficient evidence before us that by the word 'shipped’ all the witnesses understood 'put on board’. I read the contract therefore as if it said 'put on board,’” etc. See also Ledon v. Havemeyer, 131 N. Y. 179 (34 N. E. 397, 8 L. R. A. 345); Fisher v. Minot, 76 Mass. 360. In the language of the court in State v. Carson, cited supra, “the court is not to presume that the legislature intended the word ‘ship’ to mean something different from its ordinary signification.”

• The legislature of this State in adopting the clause under 'consideration, providing for the shipment of alcohol, did not intend to prescribe rules and regulations governing the manner in which a shipment may be begun or initiated in a foreign State beyond its jurisdiction. It certainly will not be presumed that the legislature intended to exceed its powers and go beyond its jurisdiction and enact a futile and inoperative statute. Extra territorium jus dicenti impune non paretur. Giving to the word “shipped” any. signification other than its use in the subjective and ordinary sense, as defined above, would be to hold that the legislature intended to enact just such an inoperative and ineffective statute, and meant to control shipments made in other States. ■ Section 2 of the act of 1917 must for this reason be construed as authorizing and legalizing shipments of pure alcohol for medicinal purposes between points within this State. The majority opinion of this court, I respectfully suggest, ignores the first or subjective idea of “shipping” and plants itself upon the" two ideas of “receiving” and “possessing” only. This, I take it, is not the true construction to be placed upon section 2 of this act. *

How is a shipment, in its accepted sense of being put on board a carrier, provided for in section 3, when, according to the terms of this section, no such shipment is made from a point within this State? How can alcohol in this State be “shipped” or put on board in accordance with the provisions of section 3, which makes no provision for such shipments, but only provides for the possession or receipt of alcohol from other States? The answer is this: The word “shipped” as used in section 2, in addition to the idea of being put on board a ship or carrier, contains the further idea of transportation, i. e., transported, hauled, or earned from the point of shipment. See Kipling’s “Ship me somewhere east of Suez.” Hnless the idea of .transportation or movement from the shipping point is lodged somewhere between the ideas “shipped” and “received,”-the alcohol when “shipped” merely would remain stationary, and would not be transported or carried away. So when alcohol mentioned in section 2 is transported, shipped, or carried, or hauled, from a shipping point within this State, it is transported, shipped, or carried, or hauled as provided in section 3, which section provides that the carrier may “transport; ship or carry . . pure alcohol.” Furthermore, the instrumentality by which such alcohol is “shipped” or “carried,” under the provisions of section 3, is by a “common ca/rrier,” and not otherwise. Therefore, the alcohol referred to in section 2 must be “shipped” only as provided in section 3,” i. e. by a common carrier. Construing the two sections' 2 and 3 together, I take it that they mean that pure alcohol may be shipped and transported from a point within this State to another point within this State, and shall be so shipped and transported by a common carrier only, and that these sections do not mean that only interstate shipments shall be made. It can readily be seen that the legislature, for police regulation, would restrict the means of transportation to common carriers.

If section 3 of. the act of 1917 is ambiguous or susceptible to two constructions, I am willing to presume that the legislature of-this-State, when authorizing the sale and use of pure alcohol within this State, as it does in section 3 of the act of 1917 and the act of 1907 there ratified, intended to discriminate against its own wholesale druggists in favor of those of other States by denying the means of transportation to the former while permitting the same to the latter. For this reason, if the language of the act does not imperatively demand the view taken by my colleagues in the majority opinion, I must give to section 3 a construction that will permit the citizens of this State to do business within this State on an equal footing with citizens of other States. However plausible may be the view taken in the majority opinion, it curtails the rights and privileges of the common carriers and citizens of this- State. • It is in derogation of the common* law and common right. Sound judicial policy, therefore, precludes any such construction upon a purely statutory enactment, unless its unambiguous terms imperatively so demand.

The act of 1907 (Penal Code, § 436-430, inclusive) provides that pure alcohol may in wholesale quantities be furnished by “wholesale druggists”- to “regular licensed retail druggists” and others. It seems to be conceded in the arguments and briefs that the shipment as made by the defendant carrier in this case was a wholesale shipment as provided in the act of 1907. However that may be, in my opinion the act of 1907 is to be construed as recognizing pure alcohol in excess of one pint as “wholesale quantities.” Therefore, when transported in wholesale quantities as authorized by the act of 1907, as declared and reaffirmed by the act of 1917, such alcohol must be shipped from one authorized by the act of 1907 to sell or furnish it, viz., a “wholesale druggist” within this State, to one’ authorized to receive it within this State.'

Did the Southqrn Express Company, a common carrier, ship or transport a consignment of pure alcohol in wholesale quantities from and to such persons as is provided by law? The shipment was without doubt received from one authorized to ship under the act of 1907, namely, a “wholesale druggist,” but whether-it was transported by the defendant to one who was authorized to receive it is not quite so clear. It was consigned to one Dr. II. G-. Fussell, at Camilla, Ga., a person who, it subsequently appears, was not within the class authorized to receive such shipments. It would 'seem that, in order to defend against a criminal- charge of transporting prohibited liquors between points within this State, it must appear that a wholesale shipment of pure alcohol was received for transportation by the defendant carrier from one authorized to ship it under the law, such as a wholesale druggist, and it must appear that said carrier transported the same only for the purpose of delivering it to one authorized to receive it. There being nothing to put the defendant carrier on notice that said shipment was not consigned to a person authorized to réceive it under the law, there could in this respect be, no blame attached to the defendant carrier, in the absence of an intent on its part to haul such shipment to an unauthorized person. TJpon the seizure of the alcohol by the sheriff before the delivery of the same to the consignee by the defendant carrier, the defendant’s further responsibility ceased, and, without more, the defendant carrier did not violate any criminal statute of this State.

The Southern Express Company, defendant in this case, a common carrier, having received a wholesale shipment of pure alcohol from a wholesale druggist within this State, for the purpose of transporting the same to another point within this State, and with the intention to there deliver it to a person authorized to receivé it, acted within its legal rights and violated no criminal law. The conviction, therefore, under the first count in the indictment was contrary to law! The possession of such alcohol being necessary to its transportation, which transportation was not criminal, but in accordance with law, such possession by said common carrier was perfectly legal, and a conviction cannot be sustained under the second count of the indictment. I am of the opinion that the judgment should b¿ reversed.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    9947.
    Mashburn Drug Company v. The State.
    Decided February 1, 1919.
    Indictment for carrying intoxicating liquor; from Mitchell superior court—Judge Harrell. May 24, 1918.

      E. K. Wilcox, for plaintiff in error.

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

This is a companion case to that of Southern Express Go. v. State, ante, 376, and grew out of the same transaction, was tried by the judge on the same agreed' statement of facts, and the principle announced in the first headnote and discussed in the first subdivision of the opinion in that ease controls this case.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., dissents.


text:
    10136.
    ECKMAN v. THE STATE.
    Decided February 1, 1919.
    1. Where testimony a part of which is admissible is objected to as a whole, it is not error to overrule the objection.
    2. The instructions complained of are not subject to the exceptions, when the whole charge of the court is considered.
    3. The verdict is not unsupported by evidence.
    Conviction of assault with intent to murder; from Troup superior court—Judge Terrell. September 25, 1918.

      Arthur Greer, for plaintiff in error.

      C. E. Roop, solicitor-general, contra.
   Bloodworth, J.

Grounds 1 and 2 of the amendment, to the motion for a new trial contain long extracts from the testimony, which were objected to "in solido.” Some of this testimony was admissible, and the objection to it as a whole was properly overruled. /“Where evidence, partly competent and partly incompetent, was offered and objected to as a whole, the illegal portion not being specified nor objected to separately, admitting all of such evidence affords no legal cause of complaint to the objecting party.’ Smalls v. State, 99 Ga. 26 [25 S. E. 614], See also Maynard v. Association, 112 Ga. 443 [37 S. E. 741]; Southern Ry. Co. v. Gilmore, 115 Ga. 890 [42 S. E. 220]; Gully v. State, 116 Ga. 527 [42 S. E. 790]; Kelly v. Strouse, Id. 881 [43 S. E. 280]; Walker v. Neil, 117 Ga. 739 [45 S. E. 387], and cit.” Barnard v. State, 119 Ga. 436 (46 S. E. 644); Ray v. Gamp, 110 Ga. 818 (36 S.E. 242); Great Southern Accident &c. Co. v. Guthrie, 13 Ga. App. 286 (6), 292 (79 S. E. 162), and eases cited.

When considered in connection with the entire charge, there is no error in the excerpts therefrom, of which complaint is made in the 3d and 4th grounds of the amendment to the motion for a new trial.

In passing on the facts in a motion for a new trial, the judge of the trial court has some discretion, but where he has exercised that discretion this court is powerless to interfere. Our Supreme Court has said: “This court has always recognized that the greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered as men, the court would not interfere. So, too, where the evidence was conflicting, it would not disturb the finding, although it might think that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court can not consider the credibility of witnesses, that being a matter exclusively for the jury, who note their manner of testifying, and consider the thousand and one things transpiring during a trial, which can not be photor graphed or transcribed and transmitted to this court as a part of the record.” Patton v. State, 117 Ga. 234 (43 S. E. 534). The 4th headnote in the case of Bunn v. Hargraves, 3 Ga. App. 518 (60 S. E. 223), is as follows: “This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any ease where there is any evidence sufficient to support the verdict rendered.” See also Randall, v. Bell 12 Ga. App. 614 (77 S. E. 1132).

Applying the foregoing to the facts as they appear in the present record, the judgment overruling the motion for a new trial must be

Affirmed.

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


author: Luke, J.

text:
    9515.
    Bass & Company v. Vinson et al.

   Luke, J.

The vendors of certain personal ' property took from the vendees a promissory note, secured in the same 'instrument by a mortgage on the property sold, in which it was stated that the note was given “for purchase-money of one sorrel mare mule four years old, and one black mare mule seven years old, title only guaranteed,” and the vendors instituted a proceeding to foreclose the mortgage for the amount of the note, to which the vendees interposed an affidavit of illegality containing the following plea (after stating the consideration of the mortgage and the purchase-price of each of the animals) : “Affiants say that at the time the sorrel horse-mule was delivered to them the said mule was sick, and affiant Dan Vinson called plaintiffs’ attention to the fact, and was informed by plaintiffs that the mule was not sick and would be all right in a few days. Acting on said statement, affiant Dan Vinson took said mule hack to his farm. The said mule grew worse, and in two or three days he returned the mule to plaintiffs, with the complaint that he was sick and that he could not use him. Affiants say that the plaintiffs accepted said mule, ■ tools possession of him, and in a fewr days he died in their possession (italics ours). Affiants say, therefore, that they are not liable for the purchase-money of said mule, or any part thereof; that there has been a total failure of consideration in so far as the value-of said mule is concerned.” Held: The affidavit of illegality was not subject to general demurrer attacking it for legal insufficiency. The plea was a good plea of recission, and- the fact that the pleader denominated it as a plea of failure of consideration does not defeat the plea or its effect. See Civil Code (1910) § 5635; Bates v. First National Bank, 111 Ga. 756 (36 S. E. 949) ; Daniel v. Burson, 16 Ga. App. 39 (84 S. E. 490). The court did not err in overruling the general demurrer to the plea.

Decided February 11, 1919.

Affidavit of illegality; from Baldwin- superior court—Judge Park. December 39J1917.

Application for certiorari to review this decision was denied by the Supreme Court.

Sibley & Sibley, for plaintiffs,.cited:

Holt v. Clary, 146 Ga. 46; Lufburrow v. Henderson, 30 Ga. 483; Bullard v. Brewer, 118 Ga. 918; Schofield-Burkett Construction Co. v. Rich, 16 Ga. App. 331; Civil. Code (1910), § 4339; Crenshaw v. Jackson, 6 Ga. 609; Arnold v. Carter, 135 Ga. 319.

Allen & Pottle, for defendant, cited:

Civil Code, § 5635, and cases cited in the decision; Holt v. Clary, supra (distinguished).

2. The issue presented was one of fact, and for no reason assigned did' the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    9650.
    Bowen v. Fuller & Son.
   Bloodworth, J.

“Where, in an instrument in the form of a note and mortgage for the purchase-price of a mule, it is stated that the purchaser agrees to pay for the mule if it should die, and that he assumes this risk in consideration of the credit extended, and purchases on his own judgment, he is not, upon the death of the mule, entitled to prove an express warranty of soundness, and defeat the purehase-priee on account of a breach of such warranty.” Cochran v. Jones, 11 Ga. App. 302 (75 S. E. 143). The decision in the case just cited controls this case. The note in this case, as in that case, contained the clause, “I or we insure the good condition and safe-keeping of said property, and will pay if it be lost, damaged, or destroyed, and if live stock, will pay though it may die. I or we assume said risk in consideration of the credit extended, and purchase the property on my or our own judgment.” This differentiates the present case and that of Cochran v. Jones, supra, from that of Whigham v. Hall, 8 Ga. App. 509 (70 S. E. 23), relied on by the plaintiff in error. The court did not err in sustaining the demurrer to the defendant’s plea or in directing a verdict for the plaintiff.

Decided February 11, 1919.

Complaint; from Gordon superior court—Judge Tarver. February 25, 1918.

Maddox, McCamy & Shumate, for plaintiff in error.

J. G. B. Erwin, Jr., contra.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9727.
    Southern Railway Company v. Rice.
    Decided February 11, 1919.
    Action for damages; from city court of Elberton—Judge West presiding. March 30, 1918.

      A. G & Julian McCurry, George C. Grogan, for plaintiff in error.

      Worley & Nall, Horace & Frank Holden, Howard B. Payne, contra.
   Broyles, P. J.

1. The evidence, viewed in the light most favorable to the plaintiff, failed to show any negligence on the part of the defendant which contributed to the injuries suéd for. Moreover, it showed that the plaintiff, by the exercise of ordinary care, could have avoided the injuries. It follows that the recovery for the plaintiff was unauthorized, and that the court erred in overruling the general grounds of the defendant’s motion for a new trial. ■

2. The foregoing ruling being controlling in the case, it is unnecessary to consider the exceptions pendente lite or the special grounds of the motion for a new trial.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., disqualified.


text:
    9733.
    Central of Georgia Railway Co. v. Jaques & Tinsley Company.
    Decided February 11, 1919.
    Complaint; from city court of Macon—Judge Guerry. March 27, 1918.

      R. C. Jordan, for plaintiff.

      Hardeman, Jones, Parle & Johnston, Richard Curd, for defend-
   Broyles, P. J.

„ 1. In the light of the qualifying note of the trial judge, it does not^ appear that he erred in excluding the testimony of the witness Montgomery as to the weights of the carload lots of corn shipped. It is not' permissible for a witness to testify to facts the knowledge of which he hat obtained from records not personally kept by him.

2. The assignment of error based upon the sustaining of the defendant’s objections to certain documentary evidence, and the exclusion of the evidence, is too indefinite to raise any question for consideration by this court, as it does not show what were the objections sustained by the court, nor wherein the court erred in sustaining them and in excluding the evidence.

3. The court did not err in admitting in evidence, over the objections of the plaintiff, a paragraph of the original petition introduced by the defendant, which had been stricken by amendment. Lydia Pinkham Med. Co. v. Gibbs, 108 Ga. 138 (33 S. E. 945); McElmurray v. Blodgett, 120 Ga. 9, 16 (47 S. E. 531). This paragraph contained an admission that the plaintiff’s agent quoted the particular rate under which the shipment of corn moved. In the absence of proof to- the contrary, it would be presumed that the agent quoted the correct rate; and the evidence was therefore relevant and .admissible.

4. It was not error to direct a verdict for the defendant.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    9798.
    CARSWELL v. GREEN.
    Decided February 11, 1919.
    There is'no evidence to support the finding and judgment in favor of the plaintiff, and the court erred in overruling the motion for a new trial.
    Complaint; from city court of Macon—Judge Guerry. April 25, 1918.

      J. M. Hancock, for plaintiff in error. S. W. Hatcher, contra.
   Bloodworth, J.

Trammell was indebted to the defendant, Cars-well, for supplies,, and to the plaintiff, Green, Lor rent, and the plaintiff’s petition alleged that Carswell purchased from Trammell produce raised on the plaintiff’s land, to wit, fodder worth $11.75, hay $3.50, one bale of cotton worth $69 and one bale worth $61, cottonseed $11; total $156.25; and that Carswell knew at the time of purchasing that the rent had not been paid, that Trammell had no other property, and that the only way the plaintiff had of collecting hi^ rent was by enforcing his lien'as landlord against the property purchased, which was removed beyond his reach by the defendant and converted to the defendant’s own use. The defendant’s plea denied every allegation of the petition. The judge passed upon the case without the intervention of a jury, and rendered a. finding and judgment for the plaintiff for $90. A motion for a new trial was overruled, and the movant excepted. The record does not show that a demurrer to the petition was filed. The special grounds of the motion for a new trial were but amplifications of the general grounds; so we have for determination the one question of whether the judgment should be reversed on the general grounds.

There is no evidence to show that the “property was removed out of the reach of petitioner by defendant,” except it be some of the fodder, mor is there any evidence to .show that the defendant ever bought from the plaintiff’s tenant any of the produce named above, except some of the fodder ($3 worth), the whole of which is alleged in the petition to be worth $11.75, and yet $90 is the •amount of the finding and judgment. The greatest amount shown by the testimony to have been received by the defendant from Trammell was $97.50, and this was in cash and not in the value of produce purchased. Deducting from this sum $32.50, which the undisputed evidence shows was paid to Carswell from the sale of a cow, .it appears that the total cash received by Carswell from the tenant was $65, which might have been the proceeds from produce sold to others. However, as stated above, the evidence fails to show that this amount resulted from produce sold by Trammell to Carswell. Even granting that all this came from the sale-of produce raised on the plaintiff’s farm, and. that all of it was purchased by Carswell from Trammell (which is not true, according to the evidence in the record);and adding thereto the alleged value Of the fodder, $11.75, the total amount would be only $76.75. The record clearly shows that there is no proof to support the finding and judgment, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    9815.
    Pennsylvania Fire Insurance Company v. Sorrells.
    Decided February 11, 1919.
    Action on insurance policy; from Colquitt superior court— Judge Thomas. May 4, 1918.
    Mrs. Mary Sorrels sued the Pennsylvania Fire Insurance Company for a sum alleged to be due on a policy of fire insurance. The petition alleged: The defendant made to the plaintiff a policy of fire insurance for $3,000, a copy of which is attached to the petition. The policy became effective on December 12, 1916. For twelve months next preceding that date the property described in this policy (designated as Policy No. 1305) was insured by the defendant under Policy 1215, which expired simultaneously with the taking effect of this policy. This policy was issued to the plaintiff and retained by the defendant, as is shown by a letter written by Harper & Clark Company, agents of the defendant at Moultrie, Georgia, a copy of which, attached to the petition, is as follows: “Moultrie, Georgia, December 14, 1916. Mrs. Mary Sorrels, c/c Mr. A. S. Dalton, Moultrie, Ga. Dear Madam: We are herewith enclosing bill for balance due, $57.80. You will note that this covers the policy written December 13, 1915. This policy expired on December 13, 1916, and in order-to protect you fully we have rewritten it so as to protect you in case of fire. However, we cannot afford to deliver the policy unless this bill is paid at once. We have been to see Mr. Dalton, but have been unable to find him at his office. We have been carrying this bill for quite a while, and trust that you will give it your prompt attention; if paid at once, we will make no charge for interest for the many months we have- carried it, and if you will send us a check, we will wait on the new policy until February 1, 1917, for the money. Trusting you will give this your prompt attention, as we can not let the matter stand in its present shape, very truly yours, Harper & Clark Co.,- by Park Harper. We await your prompt advice.” The plaintiff was not indebted to the defendant in the sum of $57.80 on the date that the letter was written, nor in any other sum on account of the previous policy, No. 1315, or any other policy; for the plaintiffs, on September 36, 1916, paid .to the said Harper & Clark Company, agents of the defendant at Moultrie, Ga., the full amount due by her as a premium on the said policy No. 1315, and was not indebted to the defendant on that policy or otherwise. The plaintiff, in two or three days after the receipt of the said letter, called the attention of the defendant’s said agents, Harper & Clark Company, to the fact of payment of the premium due on that policy, on September 36, 1916, and promised the said agents that she would pay the premium on the new policy, No. 1305, on or before February 1, 1917, as stipulated in the said letter. The property insured in the said policy was destroyed by fire on January 8, 1917. The petition contained allegations as to the plaintiff’s subsequent tender of the premium on the new policy, refusal of the tender, demand for thé policy, demand for payment of the sum alleged to be due thereon, refusal of these demands, etc.
   Broyles, P. J.

1. “Where the proposal to insure comes from the insurer, he must be notified of the acceptance of the offer by the insured.” Cooley’s Briefs on the Law of Insurance, §§ 423, 424, 432.

2. “While a contract can be made by correspondence through the. mail, or by telegram, the offer of the seller must be accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. There must be a mutual assent of the parties, and they must assent to the same thing in the same sense.” Robinson v. Weller, 81 Ga. 704 (8 S. E. 447) ; Stix v. Roulston, 88 Ga. 748 (15 S. E. 826) ; Harris v. Amoskeag Lumber Co., 97 Ga. 465 (25 S. E. 519) ; Larned v. Wentworth, 114 Ga. 209 (39 S. E. 855) ; Harper v. Ginners Mutual Insurance Co., 6 Ga. App. 139, 142 (64 S. E. 567).

3. Where the holder of a fire-insurance policy receives from the insurer a letter notifying him that the policy has expired, but that it has been renewed on certain terms and conditions stated' in the letter, and he fails to answer the letter, or to comply with the terms and conditions stated therein, or to notify' the insurer that he has unconditionally accepted the policy, before the property has been destroyed by fire, there is no completed contract of insurance, but merely an offer by the insurer to make such a contract, not accepted by the insured. Harper v. Ginners Mutual Insurance Co., supra.

4. When the principles of law stated above are applied to the facts of the instant case, as disclosed by the plaintiff’s petition, it is evident that the alleged contract of insurance sued upon was not a completed one. The court, therefore, erred in overruling the defendant’s oral.motion to dismiss the petition on the ground that it set forth no cause of action.

5. The error in the ruling on the demurrer rendered the further proceedings in the ease nugatory.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

At the trial of the case counsel for the defendant moved orally to dismiss the petition, on the ground that no cause of action was set forth. The motion was overruled, the trial resulted in a verdict for the plaintiff, the defendant’s motion for a new trial was overruled, and exceptions to the rulings stated were duly taken.

Shipp & Kline, King & Spalding, for plaintiff in error.

Parker & Gibson, contra.


author: Broyles, P. J. Stephens, J.,

text:
    10147.
    HOLLIDAY v. THE STATE.
    Decided February 11, 1919.
    1. The unexplained, or the unsatisfactorily explained, possession of stolen goods—the fruits of a recent burglary—raises a presumption of guilt against their possessor. This presumption, however, is one of fact, and not of law. Accordingly, while it is error for the judge, in such a case, to charge the jury, in effect, that such possession raises a presumption of laio of the defendant’s guilt, it is not error to instruct them merely that such possession raises “a presumption of his guilt.”
    2. Under repeated rulings oLthis court and of the Supreme Court, a special ground of a motion for a new trial must be complete within itself, and will not be considered when a reference to the brief of evidence, or to some other portion of the record, is necessary to enable this court to understand the assignment of error.
    3. It is only where the defense of alibi is sustained, or where the evidence is close on this issue, that the trial judge is required to charge the law of alibi, in the absence of a request so to do.
    4. Wliere excerpts from the charge of the court are subject to some slight criticism, a new trial will not be granted therefor if no error appears when they are considered in the light of the entire charge.
    5. Upon a trial for burglary, where the evidence shows that the accused was found in recent possession of stolen goods, the fruits of the burglary, and his explanation of his possession of the goods is not satisfactory to the jury, a presumption arises that he is guilty of the offense of burglary, and unless this presumption is overcome by other evidence, a verdict of guilty is authorized and can not be set aside by this court, if no error of law appears to have been committed upon the trial.
    Indictment for burglary; from Muscogee superior court—Judge Howard. September 19, 1918.

      D. H. Riddle, Franh D. Foley, Love & Fort, for plaintiff in error.

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

The plaintiff in error was convicted of the offense of burglary. The undisputed evidence showed that, shortly after the commission of the burglary, the stolen goods—the fruits of the burglary—were found in the defendant’s possession. The defendant made an explanation of his possession of the goods. It was entirely a question for the jury whether this explanation was satisfactory to them.

The following excerpt from the 'charge of the court was excepted to: “Where a burglary has been committed, and property which was in the house at the time of the burglary is soon thereafter, or recently thereafter, found in the possession of one who is unable to account satisfactorily for his possession (of which explanation you are the sole judges), it raises a presumption of his guilt.” We do not think the judge erred in giving this instruction; especially when, immediately after the excerpt just quoted, he charged as follows: “All of these matters are for the jury, under all the facts and circumstances of the ease, considering the nature of the property, the length of time which had elapsed after the alleged burglary, the explanation offered by the defendant, if any, for Jais possession, if he was recently in possession of them or any of the articles, if you should'believe the property was stolen from the house at the time and that a burglary was committed as charged in the indictment, as previously stated to you.” We concede that some confusion has arisen in the hooks on this subject.' This confusion seems to have grown out of the fact that in some cases it has been held error to charge that the recent possession of stolen property, unexplained, raises a presumption of law of the defendant’s guilt, while in other cases it has been held that such possession raises “a presumption of his guilt,” and that to so charge is not error. A careless reading of these cases, without noting the distinction between a presumption of law and a presumption of fact, might lead one into doubt as to the correct rule. There is, however, as can readily be seen, no conflict between these decisions when this distinction is kept in mind. The confusion is also partly caused by the fact that some of these decisions hold that the word “inference” should be used by the trial judge, instead of the word “presumption.” A presumption of fact, however, is really nothing more than an inference. “Presumptions are either of law or of fact. The former are conclusions and inferences which the law draws from given facts. The latter are exclusively questions for the jury, to be decided by the ordinary test of human experience.” Penal Code (1910), § 1014. “Presumptipns of fact are inferences as to the existence of some fact drawn from the existence of some other fact; inferences which common sense draws from circumstances usually occurring in such eases.” 1 Phil. Ev. 436; Black’s Law Die. 933. Presumptions of fact, says Prof. Greenleaf, “are in truth but mere arguments, of which the major premise is not a rule of law; they belong equally to any and every subject matter; and are to be judged by the common and received tests of the truth of propositions and the validity of arguments. They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived .from those connections, which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever. • Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which by means of such an instrument Jiad been burglariously entered.” 1 .Greenleaf on Evidence, § 44. In deciding the ease of Insurance Company v. Weide, 11 Wall. 438 (20 L. ed. 197), the Supreme Court of the United States defined a presumption to be “An inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” In Jones on Evidence (2d ed.), § 10, it is said: “Since these inferences, sometimes called presumptions of fact,, are mere permissible deductions from the evidence, it has often been suggested that they are in fact not presumptions at all, but they are constantly recognized [as such] in the decisions, although often in a confused and inaccurate manner.” “ 'Presumptions of fact’ are but inferences drawn from other facts and circumstances in a case and should be made upon the common principles of induction.” 3 Words & Phrases (2d Ser.), 1167.

In Tucker v. State, 57 Ga. 505, it was held as follows: “That part of the charge of the court to the jury, to wit: Whenever it is established that a larceny has been committed, and the stolen goods are immediately afterwards found in the possession of a person, that fact is presumptive evidence that the person is guilty of the larceny of the character charged to have been committed’, was unobjectionable.” In McGruder v. State, 71 Ga. 864, the Supreme Court approved the following'charge: “If the evidence satisfies the jury that the burglary was committed as alleged, and afterwards the stolen goods were found in the house and' room occupied by the defendants, this would be presumptive evidence of their guilt, unless explained [italics ours] ; and any statement made by either of them, explanatory of the goods being there at the time they were so found, and while they were there, must be duly considered, and may relieve the suspicions appearance.” In Davis v. State, 76 Ga. 16, it was said in the headnote that “Where a burglary has been committed, and a short time thereafter some of the property which was in the house broken open before and at the time of the burglary is found in the possession of the accused, if the possession of the property is .not accounted for, this affords a pi-esumption of guilt.” (Italics ours.) And in the opinion in that case Mr. Justice Blanford said: “Certain exceptions are taken to the charge of the court, and specific assignments are made thereon. But a careful examination of the charge of the court fails to show any foundation for the exceptions. The charge is correct, as we understand the law. The whole charge and the part excepted to is free from any exception. The whole of it is, as we understand it, that where a burglary has been committed, and a short time thereafter some of the property, which was in the house before and at the time of the burglary, is found in the possession of the accused, in such a case, if the possession of the property is not accounted for, this affords a presumption of guilt. This has been the law time out of mind. The decisions of the English courts, from whom we derived our law, and of all the courts in this country, fully establish this principle” [italics ours]. In Lundy v. State, 71 Ga. 360, the first headnote is as follows: “Where a burglary has been committed, and money, goods, or other property which was in the house at the time of the burglary is soon thereafter found in the possession of a person who is unable to account for his possession, it raises a presumption of his guilt, and the jury would be authorized to find a verdict of guilty.” In August v. State, 11. Ga. App. 798 (76 S. E. 164), the 4th headnote is as follows: “The following instruction was abstractly correct and warranted by the evidence: “The exclusive and unexplained possession of stolen property recently after a burglary, in the commission of which a theft was perpetrated, may raise a presumption of fact that the party in possession is the burglar, where the burglary has been established beyond a reasonable doubt; and the burden would be upon the person in whose recent possession the goods, if stolen, were found to explain such possession. It is a presumption arising out of fact, and is, therefore, a matter for the jury,—what would be recent possession is a matter for the jury, as is the satisfactoriness of the explanation. The presumption being one of fact, before it arises the State must have established the facts from which the inference is drawn, beyond a reasonable, doubt; and whilst the burden is upon the defendant, if such facts have been established beyond a reasonable doubt, to explain the possession to the jury, such explanation may be drawn from any evidence in the case which demonstrates it, or from the statement of the defendant, • if such statement satisfies the jury upon that point/ ” See also, to the same effect, 1 Greenleaf on Evidence, § 34; Jones on Evidence (2d ed.), §§ 9, 10; 12 Am. & Eng. Enc. Law, 845; Griffin v. State, 86 Ga. 257 (12 S. E. 409), Falvey v. State, 85 Ga. 157 (11 S. E. 167); Jones v. State, 105 Ga. 649, 650 (31 S. E. 574); Lester v. State, 106 Ga. 372 (32 S. E. 335); Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322); Bryant v. State, 4 Ga. App. 851 (62 S. E. 540).

The holding in Gravitt v. State, 114 Ga. (40 S. E. 1003, 88 Am. St. R. 63), is not only not contrary to the present ruling, hut supports it. In that case it was held that the possession of stolen property, not satisfactorily explained, does not create a presumption of law against the accused, but Mr. Justice Lewis, who wrote the opinion, clearly stated that the presumption was one of fact, and not of law. The charge of the court in that case was held to be error because the court stated in effect, that a presumption of law that the accused was guilty was created by the recent possession of stolen goods unaccounted for. - This distinction between a presumption of law and a presumption of fact is clearly set forth by Mr. Justice Cobb in Lewis v. State, 120 Ga. 508 (48 S. E. 227). In that case the following charge (which is substantially the charge complained of in the instant case) was approved: “Where a burglary has been committed, and money, goods, or other property which was in the house at the time of the burglary is soon thereafter found in the possession of a person who is unable to account for his possession, it raises a presumption of his guilt, and the jury would be authorized to find a verdict of guilty.” Judge Cobb, in that case, like Judge Lewis in the Gravitt case, distinctly held, in effect, that the recent possession of stolen property, unaccounted for, raises a presumption of guilt against the possessor of such property, but that this presumption is one of fact and not of law. We think, from the authorities cited above, we have conclusively shown.that the charge complained of in. the instant case was not erroneous.

The first two special grounds of the motion for a new trial are not complete within themselves. Before this court could understand the assignments of error made therein, a reference to the brief of evidence, or to other parts of the record, would be necessary. Therefore, under the ruling stated in the 2d headnote, these grounds can not be considered.

It is only where the defense of alibi is sustained, or where the evidence is close on this issue, that the trial judge is required to charge the law of alibi, in the absence of a request so to do. Moody v. State, 114 Ga. 449 (40 S. E. 242); Smith v. State, 6 Ga. App. 577 (65 S. E. 300); Throckmorton v. State, 23 Ga. App. 112 (97 S. E. 664). Under the evidence in this case the court did not err in failing to so charge.

The instructions of the court upon the subject of “reasonable doubt,” and of circumstantial evidence, when taken in connection with the entire charge, were not erroneous.

Under the ruling stated'in the 5th headnote, and. the facts of this case, the finding of'the jury, that the accused was guilty of burglary as charged in the indictment, was authorized by the evidence. It was entirely a matter for the jury to' determine whether the explanation given by the accused, as to how he came into possession of the stolen goods, was satisfactory to them.' They.determined that it was not. The presumption then arose that the accused was guilty as charged. There was no other evidence in the case which overcame this presumption, and as the verdict has been approved by the trial judge, and no error of law appears to have been committed upon the trial, this court is without jurisdiction to set aside the verdict.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting.

There is not a particle of evidence in this case tending in any manner to connect the defendant with the alleged burglary other than an alleged recent possession by him- of some of the goods stolen, unsatisfactorily accounted for. His conviction is, therefore, dependent upon the. rule of law that upon the trial of a defendant charged with burglary, when a breaking is shown and the defendant is found in recent possession of the goods ■stolen, the possession unexplained to the satisfaction of the jury, the jury is authorized to infer his guilt. The judge charged the jury as follows: “Where a burglary has been committed and property which was in the house at the time of the burglary is soon thereafter, or recently thereafter, foimd in the possession of one who is unable to account satisfactory for its possession (of-which explanation you are the sole judges), it raises a presumption of his guilt.” This portion of the charge instructed the jury that it was their duty as a matter of law to convict the defendant on such evidence. The charge in this respect was erroneous and contrary to law, in that such evidence did not demand a conviction, but merely authorized the jury, in its discretion, to convict. This error was not cured by the judge immediately thereafter further stating in his charge that “all of these matters are for the jury, under all the facts and circumstances of the case, considering the nature 'of the property, the length of time which had elapsed after the alleged burglary, the explanation offered by the defendant, if any, for his possession, if he was in recent possession of them, or any of the articles, if you should believe the property was stolen from the house at the time, and that a burglary, was committed as charged in the indictment, as previously stated to you.” Since the defendant’s guilt depended entirely upon a proper application of the rule of law which the judge attempted to give in charge, the charge in this respect should have been clear and free from any ambiguity or misconstruction. The additional qualifying language was susceptible to the construction that if the jury were not satisfied with the explanation of recent possession offered by the defendant, then the jury should find him guilty, and it would be obligatory upon them to bring in a verdict to that effect; whereas the true rule is that under such circumstances the jury would only be authorized, in its discretion, to find the defendant guilty. The law is well settled that such prima facie evidence of guilt merely authorizes, and does not demand a conviction. Such evidence is not of itself necessarily proof of guilt. It creates no presumption of law against the defendant, and does not, as a matter of law, require his conviction. In the case of Gravitt v. State, 114 Ga. 841, where the court below charged the jury that where, under such a state of facts, the accused failed to account for the alleged stolen property “to the satisfaction of the jury, the law presumes that he is the guilty party,” this charge was held to be error. Mr. Justice Lewis, in that case, referring to this language, said, “-This charge states too broadly the rule applicable to recent possession oí stolen property, and it was error manifestly prejudicial to the accused.” This language was identical in substance and effect, with that portion of the charge referred to and excepted to in the instant case.

After all, it is purely a question of a construction of the judge’s charge. Do we or do we not construe the language as submitting to the jury the proposition as a presumption of law, or as a presumption of fact ?” From an inspection of the original record in the Gravitt case, cited supra, the language of the charge as a whole comes nearer submitting the proposition as a presumption of fact than does the charge in the case we are now called upon to decide. As I plant my dissent upon the authority of the Gravitt ease, I quote at length from the charge in that ease: “A rule of law is that when there has been a larceny, a breaking and entering and taking away the goods of another, and some party is found to be in the recent possession of these goods soon after they were stolen, soon' after the burglary is committed, or larceny was committed, then if he fails satisfactorily to account for his possession to the satisfaction of the jury, the jury has the right to presume he is the guilty party, but if he shows satisfactorily to the jury that his possession is lawful, then nothing may be presumed against him as to his guilt. Now, in weighing the subject, all that the defendant said is to be considered by the jury. What did he say? Did he make different statements? Did he say whom he got them from, and always say the same, or was there a difference- about it? Was there any reason for telling it differently ? Examine it all. If it is satisfactory to your minds, if he made satisfactory explanations, then possession would not be proof of his guilt, but if it is not satisfactory, then possession would be proof of his guilt; but if it is not satisfactorily explained, then the law authorizes you to presume that he is the guilty party, because if he got them lawfully he could account for their possession, and if he didn’t the law presumes he is the guilty party; what I mean to say is this, if he has the goods in his possession, then he must account for that possession, and when he does, when he accounts for it to the satisfaction of the jury, then there is no presumption against him that he was the guilty party; but if he fails to account for it to the satisfaction of the jury, the law presumes he is the guilty party.” Nota bene the following expressions in the charge in that ease: “If he fails satisfactorily to account for his possession to the satisfaction of the jury, the jury has the right to presume he is the guilty party. . . . If it is satisfactory to your minds, if he made satisfactory explanations, then possession would not be proof of his guilt, but if it is not satisfactory, then possession would.be proof of his guilt, but. if it is not satisfactorily explained, then the law authorizes [italics mine] you to presume he is the guilty party.” I am willing to stand with Mr. Justice Lewis, the great jurist who wrote the opinion in that case. I feel that my position is well fortified when I can rely upon him as authority.

This rule is easily misunderstood, and in cases of this kind, where a conviction depends entirely upon its proper application, it should be clearly stated to the jury. There should be no language in the charge from which the jury might infer that, as a matter of law, such testimony would establish guilt, or would, in the language excepted to, “raise a presumption of guilt.” The judge in his charge laid down an erroneous proposition of law, and in his subsequent language failed to correct it or so far explain it’ as to clearly deprive it- of its erroneous meaning. This was highly prejudicial to the rights of the accused, and a new trial should for this reason be granted. ' • ■


text:
    9560.
    TEXAS COMPANY et al. v. HEARN.
    Decided February 12, 1919.
    1. A servant 19 years old, “of fair education and training,” is chargeable with the'same degree of diligence for his own safety as an. adult engaged in" the same work.
    2. “A master is not responsible in damages to his servant for injuries sustained by the -latter while in the employment of the former, in consequence of defects in a tool furnished by the master, which the servant was using at the time of the injury, when the defects were such that they were known to the servant, or could have been known by the exercise of ordinary care on his part.” ■ • ■
    3. “The duty of a master to warn his servant of dangers incident to his employment does not embrace an obligation of the master to anticipate that the servant may perform his task improperly, and to warn him of an obvious danger resultant from such improper method of performing his task.”
    Action for damages; from Baldwin superior court—Judge Park. January 14, 1918.

      Mrs. Leah V.' Hearn sued the Texas Company, alleging, in substance, as follows: that the petitioner is the mother of Cline Hearn, who in his lifetime contributed to her support; that on December 29, 1916, the said Cline Hearn, then a minor 19 years old, was employed by the defendant, and, while engaged in the discharge of his' duties, was killed as a result of the negligence of defendant and its agent, Homer A. Massey; that prior to December, 1916, the said agent employed the deceased to drive a truck and' to sell and deliver gasoline; that said agent furnished the deceased, for use by him in performing his duties, an' automobile truck and a number of ten-gallon oil cans, to be carried on said truck for the transportation of oil and gasoline; that the platform of the truck upon which the cans. stood was 40 inches above the surface on which the truck ran, and the cans were 24 inches high; that it was Hearn’s duty to carry these cans, filled with gasoline and oil, to the point of delivery, and take them from the truck and pour their contents info the tanks of dealers to whom he sold; that a Humber of the cans furnished Hearn had defective covers, in that the covers did not fit the opening of the cans tight enough to prevent their falling out when they were tilted; that on the date of his death Hearn drove his truck to Gordon, and there made a sale of gasoline for his employer to a dealer, and, in taking the can of gasoline from the truck for the purpose of-delivering it, tilted the can,” and the defective cover came off and gasoline poured out over the said Hearn’s body and clothing; that within five minutes after making this delivery he was in the drug store of Dr. Evans at Gordon, standing at the counter near a cigar-lighter, which was burning a small flame, and standing more than 12 inches therefrom, when the fumes of gasoline from his clothing caright fire from the flame, and the fire was communicated to his gasoline-soaked clothing, and the burns therefrom caused his death; that Cline Hearn never handled gasoline until after' his employment by the defendant, which was less than four months prior to his death; that he had no. knowledge of the danger attending the handling of the same, and that he had no knowledge of the inflammable nature of its fumes, while the defendant well. knew of the dangers incident to his employment, and the inflammable nature of the gasoline; that the defendant well knew the youth, inexperience, and lack of knowledge of Hearn about his business; that the track ánd cans furnished Hearn were defective and dangerous tools, in that Hearn was only 5 feet,'4 inches tall, the floor of the truck was 40 inches above ground, the top of the can 24 inches above the floor of the truck, and the cans, when full, weighed more than 100 pounds, and, in order for Hearn to remove the cans from the truck, it-was necessary to .tilt the can until he could encircle it with his arms; and that Hearn had no opportunity to learn of the dangerous character of the tools. It is alleged that the defendant was negligent in furnishing Hearn with dangerous ■ machinery and tools, with,a machine whose floor was too high for him to.safely remove theyefrom cans of the character furnished him filled with gasoline, with cans having defective covers that permitted the spilling of gasoline on his body and clothes, with a truck and cans which necessitated the tilting of the cans in unloading; in failing to warn him of the dangerous character of the machinery and tools furnished him, of the dangers attending his duties, of-the dangers of spilling gasoline upon his clothes, of the inflammable character of the fumes of gasoline, and in failing to instruct him to use the machine furnished and handle the gasoline in a safe manner.
    ‘Demurrers, both general and special, were overruled, and the defendant excepted:

      Ryals &. Anderson, B. S. Deaver, for plaintiffs in error.

      Hines Vinson, contra.
   Bloodworth, J.

(After stating the foregoing facts.) That the-deceased ’was only 19 years old when the burning which resulted in his death took place can not avail the plaintiff. The petition distinctly alleges that he was “of fair education and training.” In Skipper v. Southern Cotton Oil Co., 120 Ga. 942 (48 S.’E. 360), Mr. Justice Lamar said: “The petition stresses the fact that the plaintiff was a minor and inexperienced; but that he was only nineteen years of age was immaterial. The case is to be treated as though he had attained majority; for there is no suggestion that he was not chargeable with the duty of using due care, nor that he was incapable of appreciating the danger of stepping into the midst of moving machinery.” As illustrating the principle above announced see Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (94 S. E. 821); Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (2) (58 S. E. 413); Wilder v. Miller, 128 Ga. 139 (57 S. E. 309); Evans v. Josephine Mills, 119 Ga. 448, (6) (46 S. E. 674); Cen tral Railroad Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952); Central Railroad &c. Co. v. Rylee, 87 Ga. 491 (2) (13 S. E. 584, 13 L. R. A. 634); Sims v. East & West Railroad Co., 84 Ga. 152 (10 S. E. 543, 20 Am. St. R. 352); s. c. 80 Ga. 807 (6 S. E. 595).

2. From the foregoing statement of facts it will be seen that the petition alleges that the defendant was negligent because the deceased was low of stature and had been furnished with an auto-truck too high for him to remove the cans of gasoline therefrom without tilting them, and that some of the cans had defective tops which allowed the gasoline to spill when the cans were tilted. It does not appear from the petition that the truck and cans were not equal in kind to those in general use and reasonably safe for all persons who operated them with ordinary care and diligence, and there is no allegation that the servant made complaint to the master in reference thereto, nor is there any charge that there were any latent defects in the truck or the cans. The plaintiff by his petition seems to attempt tc place this case in a special class because the deceased was “low of stature.” From the very character of the complaint as to the defects of the truck and the cans, these defects were patent and obvious to the deceased. It also appears from the declaration that the servant for nearly four months had been using the truck and cans, and his opportunity of knowing of “the defects or danger in the machinery supplied” was equal, if not superior, to that of the master. See Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 120 (89 S. E. 158), cit.; and Beck v. Tumlin Co., 13 Ga. App. 618 (79 S. E. 857), and cit. Even if it be conceded that the truck and cans, as related to the low stature of the deceased, were dangerous because of the alleged deficiencies therein, the deceased, with full knowledge of these deficiencies, assumed the risk and continued voluntarily to use them, and the plaintiff would not be entitled to recover for any injury resulting solely from such use. It is apparent, from the allegations in the petition, that the saturation of the clothes of the deceased resulted from his own failure to perform with due care the work assigned him, and was not the .result of any negligent . act or omission of the defendant, and that the master is not liable for providing the truck and cans used by the deceased. “A master is not responsible in damages to his servant for injuries sustained by the latter while in the employment of the former, in consequence of defects in a tool furnished by the master, which the servant was using at the time of the injury, when the defects were such that they were known to the servant, or could have, been'known by the exercise of ordinary care on his part.” Banks v. Scofield’s Sons Co., 126 Ga. 667 (55 S. E. 939). “The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.” McDaniel v. Acme Brewing Co., 113 Ga. 80 (38 S. E. 404). See also Civil Code (1910), § 3131; Muscogee Mfg. Co. v. Butts, supra; Short v. Cherokee Mfg. Co., 3 Ga. App. 377 (59 S. E. 1115).

3., The petition alleges that the deceased had never handled gasoline until-he was employed by the defendant, “had no knowledge of the inflammable'nature of the fumes of gasoline,” and “had no knowledge of the dangers attending the handling of the same,” and that the defendant failed to warn him of the inflammable nature of gasoline, and failed to instruct him “of the dangers of permitting gasoline to get upon his person and clothing.” Generally it is the duty of the master to warn the servant of the dangers incident to his employment, yet this duty “does not embrace an obligation of a master to anticipate that the servant may perform his task improperly, and to warn him of an obvious danger resultant from such improper method of performing his task.” Howard v. Central of Georgia Ry. Co., 138 Ga. 537 (2) (75 S. E. 624). See Commercial Guano Co. v. Neather, 114 Ga. 416 (2) (40 S. E. 299). The saturation with gasoline of the clothes of the deceased was not incident to the proper performance of his work, but clearly resulted from an improper performance thereof, and was the causa sine qua non, the cause without Which the- burning 'could not have taken place. The proper performance of the duties of the deceased would not be attended by extraordinary hazard or damage. “The failure of the master to instruct the servant how to perform work which any person of ordinary intelligence can perform without instructions, and the performance of which is unattended by extraordinary hazard or danger, is not such a breach of his duty to instruct as will give a servant injured while performing the work a right of action for damages.” Howard v. Central of Georgia Railway Co., supra.

It'follows from the decisions above quoted and cited that the defendant was under no legal duty to warn the deceased of the danger resulting from the improper performance of his task. In addition to the above, the petition, shows that at the time his “clothing caught fire he was in the drug store of Dr. Evans at Gordon, Georgia, standing at the counter near a' cigar-lighter* which was burning a small flame,” and that “the fumes of gasoline from his clothing caught fire from a flame, and the fire was communicated to his gasoline-soaked clothing, and the burns therefrom were the cause of his death.” There is no allegation that he was in this drug store delivering gasoline, or that in the discharge of his duty it was necessary for him to be standing near the cigar-lighter from which the “fumes” of gasoline caught fire and which resulted in his death. See Kennedy v. Atlantic Coast Line R. Co., 9 Ga. App. 661 (72 S. E. 66); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. 7. 322); Strange v. Wrightsville & Tennille R. Co., 133 Ga. 730 (66 S. E. 774); Central of Georgia Ry. Co. v. McWhorter, 115 Ga. 476 (42 S. E. 82); Whitton v. South Carolina & Georgia R. Co., 106 Ga. 7,96 (32 S. E. 857); Central Railroad & Banking Co. v. Chapman, 96 Ga. 769 (22 S. E. 273); Atlanta & Charlotte Air-Line Ry. v. Ray, 70 Ga. 674 (4). Taking into consideration all the allegations of the petition, we are convinced that the- death of Cline Hearn was not due to the failure of any duty due him by the defendant, or to any negligent performance of.any such duty, and that the court erred in overruling the demurrer to the petition.

Judgment reversed.

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


text:
    9652.
    SOUTHERN COTTON OIL COMPANY v. FARKAS.
    Decided February 12, 1919.
    .Plaintiff having declared on an oral contract, and the proof showing a written one, the court properly directed a nonsuit.
    Action on contract; from city court of Albany—Judge Clayton Jones. February 13, 1918.

      R. R. Jones, for plaintiff. Milner & Farkas, for defendant.
   Bloodworth, J.

The Southern Cotton Oil Company sued Farkas, alleging that it entered into an oral agreement with him whereby he sold to it SO tons of sound cottonseed at $65 per ton, and was to ship the seed, with draft attached to bill of lading for each car; that pursuant to this he, shipped two cars of cottonseed from Albany to Dawson, Ga.; with sight draft attached to the bill of lading, and after payment of the draft the plaintiff discovered that the two cars were short 6,370 pounds of seed, of the value of $207.02; that it received only 76,930 pounds of the 50.tons purchased, and under, the contract there was still due to it 23,070 pounds, worth at the time of bringing the suit $10 per ton more than the contract price, making the defendant due the plaintiff therefor $115.35, “the difference in the contract price and the market price of 23,070 pounds of cottonseed.” The total amount sued for was $322.37. The defendant filed a plea as follows: “Defendant denies each' and every paragraph of said petition.” The plaintiff moved to strike the plea, on the ground that it was “in effect a plea of general issue.” This motion was overruled, and the case proceeded to trial. At the conclusion of the evidence for the plaintiff a nonsuit was granted, on motion of the defendant’s counsel; and the plaintiff excepted.

1. The court committed no error in refusing to strike the plea. Civil Code (1910), § 5634.

2. Upon the trial of the case C. E. Eagan, sworn for the plaintiff, testified i-n part as follows: “My occupation is manager of the ■Southern Cotton Oil Company, at Dawson, Ga. My duties as such manager are buying cottonseed, selling the by-products, just general management of the plant .... I employ agents over the country to buy seed for us. I employed Mr. Davis of the Davis Grocery Company in Albany the past season to represent us. His duties were to buy seed under my instructions upon my quotations from Dawson.. . . Mr. Davis made this contract that we are now suing on, with my authority. I don’t know what the contract was, except what he told me over the phone. As a matter of fact I think the contract is in writing, I. think I have it right here in court. The only contract I have ever had in reference to these seed from Mr. Farkas is a contract Mr. Davis made, and that contract is in writing. . . After the discussion came up about the seed he sent me this memorandum and confirmation of sale. It was signed by Meyers. This memorandum and confirmation of sale is the contract we are now suing on, the verbal contract over the phone. I told Mr. Davis over the phone to buy them. I only claim one contract with Paul Farkas. . . I know that represents the particular trade we are now suing on [witness here referring to the confirmation of sale signed hy Joe A. Meyers].” J. C. Davis testified in part: “I was in the employ of the Southern Cotton Oil Company in the fall of 1917, in Albany, in the capacity of buying cottonseed. . . I bought these seed from Mr. Farkas through Mr. Meyers. . . Me and Meyers reduced that contract to writing. The contract is in writing and right here in court.” J. A. Meyers, for plaintiff, testified: “I contracted with Mr. Davis for these seed. . . My contract was reduced to writing. . . I sold those seed to Mr. Davis for the Southern Cotton Oil Company, made that contract for Mr. Farkas. . . The contract was one contract for 50 tons, and that was reduced to writing.” Plaintiff introduced the following writing, dated September 15, 1917: “This is to confirm sale of 50 tons sound cottonseed at $65.00 per ton f. o. b. cars Albany. Shipment as soon as possible. (Signed) Joe A. Meyers.” In reference to this writing the bill of exceptions says: “the same being the contract in this case about which witnesses testified had been reduced to writing, and being the only writing in reference to the contract between the parties in this case.” It may be that the record in-this case does not show all the facts, but as the record comes to us it shows only one “contract”, and that is the paper dated September 15, 1917.

In the brief of plaintiff in error he insists: “The proof does not show a written contract. The most that can be said of the writing introduced in evidence is that it is evidence of the contract. The writing itself fails in many essentials of being a contract. It is not signed by both parties. It is not addressed to anybody. It was simply a confirmation of the sale, written down by one of the parties, but not assented to by the other party to the contract. The writing was unilateral. It no doubt embodied the terms of the contract that had been made between the parties, but the Southern Cotton Oil Company did not sign it, nor did it assent in writing to its terms.” Had there been no performance of this “contract” the argument of the plaintiff in error would probably be good. But the evidence shows that the agents of the contracting parties reduced the contract to writing, each agent acting for his principal, and that the principals acted on and ratified the contract made by the agents, and cottonseed were shipped and accepted in accordance therewith; and for this reason the incomplete contract was perfected. In Harris v. Amoskeag Lumber Co., 97 Ga. 465 (25 S. E. 519), Mr. Justice Lumpkin said: “We do not think that the correspondence between Harris & Mitchell and the Lumber Company, tested by any recognized legal rules of construction, ever amounted to a fully completed and binding contract. Nevertheless, the evidence shows unmistakably that the parties so treated it, and this amounts to the same thing, in law, as if this result had been successfully accomplished by the letters themselves.” See also Spence Drug Co. v. American Soda Fountain Co., 11 Ga. App. 475, 476 (75 S. E. 817).. Both principals, haying acted on the contract, as written, incomplete though it is, are bound thereby. Plaintiff having declared on an oral contract and the proof showing a written one, the court properly ordered a nonsuit. “In a complaint founded on an account, it was proven by the plaintiff’s witness, on the trial, that there was a written contract between the parties, touching the subject matter of the account: J-Ield, that the plaintiff could not proceed, and that the defendant was entitled to a nonsuit.” Blue v. Ford, 12 Ga. 45. The facts of the instant case clearly differentiate it from those cases in which our 'courts of last resort have held that, “Where there is a special contract which has been performed on one side, and there is nothing left to be performed but payment on the other, a recovery can be had either upon the contract or upon a general indebitatus assumpsit or quantum meruit.” Hill v. Balkcom, 79 Ga. 444 (5 S. E. 200).

Judgment affirmed,.

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