text:
    516.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. MINOR.
    1. Questions of negligence are peculiarly within the province of the jury; and this court will not disturb a finding of its existence, when such an inference is warranted by any phase of the evidence.
    2. In an action for a homicide, in determining whether the verdiet is, excessive or not, the question will not be decided by reference to the deceased’s expectancy according to the mortality and annuity tables alone. A verdiet will not be set aside as excessive when it is not so large as to justify the belief that it is the result of bias or gross mistake.
    3. The judge may properly instruct the jury, in explanation of the use of the mortality and annuity tables, that “if, under the evidence, the expectancy would be greater or less than that of the average man, or the .earning capacity would increase or decrease, the cash value of the life should be increased or decreased accordingly,” when there is evidence that the person, the value of whose life is in question, was a young man of good health and habits, and was filling satisfactorily a responsible position.
    Action for damages, from city court of Macon — Judge Hodges. April 20, 1907.
    Argued October 21,
    Decided November 11, 1907.
    Minor, the husband of the plaintiff, was employed by the defendant company to work in its yards at Macon in the capacity of “hostler helper,” a kind of understudy, as it were, to the man who sees that locomotives are properly prepared and furnished for use in actual service. His regular occupation was that of member of the city Ere department; but he was doing this service with the view of learning the trade, to the end of being regularly employed in the motive department of the railway company. He had been working in this service only three days when he met his death. A locomotive had been brought to a chute to be coaled. He mounted the tender, to help in loading the coal. The method by which this work is done is, that the helper pulls down an apron — a kind of conveyer through which the coal runs from the chute to the tender — and then turns on the coal, which through the force of gravity runs from the chute, through the apron, into the tender. A cable attached to the upper portion of the apron, as it stands when not in use, is pulled, in order to lower the apron and admit the coal. Minor, after mounting the tender, pulled upon this cable, to lower the apron; and as he did so, and as the apron accordingly came clown and into touch with the metal part of the tender, lie was instantly struck and killed by a current of electricity which escaped from a wire against which the cable came into contact. The wire was part of an arc-light circuit which supplied a lamp burning in front of .the chute. The wires were attached to the chute and so located that the cable swung down between them. On investigation of the wires, it appeared that the insulation had been worn away at about the place where the cable would come into contact with it as it swung from the lowering of the apron of the coal chute. From the testimony of the expert electricians who testified in the case, the inference could be fairly deducible that the insulation had been worn away by the cable rubbing against the wire from time to time; though this was disputed by other testimony. The injury happened on a wet night; which tended to make injuries from the electricity more probable than when things were dry. It was shown that the wire had been installed by a reputable electric contractor; but there was no showing that the defendant had made any inspection. There was proof that the deceased, at the time of his death, “was twenty-six years old, perfectly healthy and had no bad habits,” and that “he was a bright young man.” He had been a member of the city fire department for five years, and in that employment received $60 per month. The city also furnished him light, lodging, and heat, free. A witness estimated this to be worth $12 to $15 per month; though, since the deceased was a married man and had to maintain a separate home, this probably resulted in no saving to him. The Carlisle mortality and annuity tables were in evidence. The jury returned a verdict of $10,715 for the plaintiff. The motion for a new trial, which was overruled, complains that the verdict is contrary to the evidence; also that it is excessive; especially so in light of the fact that it is in excess of the value of the life of the deceased,” calculated even upon the highest earnings shown during his life,” wherefore it is apparent that no deduction whatever was made for decreased earning capacity due to illness or old age; also because the court charged the jury as follows: “If, under the evidence, the expectancy would be greater or less than that of the average man, or the earning capacity would increase or decrease, the cash value of the life should be increased or decreased accordingly. The specific objection to this excerpt from the charge is “that it allows the jury to consider the possibility of increased earning capacity of the plaintiff’s husband; while the law does not authorize such recovery, for the reason that the same would be speculative, too uncertain, and too indefinite; also that there was. no evidence before the jury that would authorize them to find that the plaintifE’s husband’s earning capacity would be increased, nor was there any evidence that could authorize the jury to find that his expectancy would probably be greater than that of the average man.”

      Wimberly & Jordan, for plaintiff in error.

      Joseph H. Hall, Warren Roberts, contra.
   Powell, J.

(After stating the facts.)

As to the contention that the verdict is contrary to the evidence, that no negligence on the part of the master is shown, that the death of the deceased came about by reason of an accident, unforeseeable by ordinary care, it is necessary to say only that the evidence was such that a verdict either way could have-been legally justified. Whether the wires were unsafely located in. the beginning, whether the railroad company by ordinary care could have. discovered this fact, whether an inspection reasonable under all the circumstances would have disclosed the probability of danger, were questions involved; and as to these things there was evidence- pro et con. Possibly, the members of this" court, if they had been upon the jury which tried the case, would not have come to the conclusion reached by the jury; yet we can not say that the inferences were not issuable.

“Now, who shall arbitrate?

Ten men love what I hate,

Shun what I follow, slight what I receive;

Ten, who in ears and eyes

Match me; we all surmise,

They- this thing, and I, that.”

Under the law of the land the jury, the “ten men” and two, must, as to these questions, arbitrate; not we.

“The question of damages being one for the jury, the court should not. interfere, unless the damages are either so small or so excessive, as to justify the inference, of gross mistake or undue bias.” Civil Code, §3803. This axiom is not so peculiarly applicable to cases of this character, where the law fixes the basis of the jury’s calculations, as in those cases where the limit of enlightened conscience is the only measure; still the rule in a restricted sense exists in these cases also. It is contended by the plaintiff in error that the verdict is manifestly excessive, for if the jury had allowed a recovery at the rate of the deceased’s salary as a fireman, $60 per month plus the $15 per month estimated by one witness as the value of the bed, heat, and light furnished him in the fire-engine house (plaintiff in error says that it is not fair to consider this $15, since he, being a married man maintaining a home, got no financial benefit therefrom), for -his full life expectancy, according to the Carlisle tables, which were in evidence, it would have lacked $1.40 of reaching the amount actually found. It is further insisted that a man’s expectancy of years; of earning capacity is necessarily less than his expectancy of life;; because it is absolutely certain that the average man (and the tables are based on the life of the average man) loses from his; work a certain portion of the years of his life on account of sickness, the infirmities of old age, and similar causes. If the jury were bound by the mortality and annuity tables, the criticism would be well founded. The jurors are permitted to use the tables, but they may disregard the tables and may employ any method known to them as upright and intelligent men. Central R. Co. v. Wiggins, 91 Ga. 208; Florida Central R. Co. v. Burney, 98 Ga. 1; W. & A. R. Co. v. Cox, 115 Ga. 715 (1); Central R. Co. v. Crosby, 74 Ga. 748 (4); W. & A. R. Co. v. Clark, 117 Ga. 548; Bussey v. C. & W. C. R. Co., 57 S. E. 1015. The jury may easily have concluded that the plaintiff, owing to his good health and good habits, would have had more years, both of life and of earning capacity, than the average man whose life is the subject-matter of estimate in the Carlisle tables. At any rate, the verdict is not so excessive as to indicate gross mistake, if mistake at all.

We have carefully examined the complaint as to the excerpt taken from the charge of the court, and we conclude that it is not erroneous; especially when taken in connection with the context. The judge was explaining to the jury the method in which they should use the mortality and annuity, tables, in the event they saw fit to use them. He said to them (we quote the excerpt complained of, together with the immediate context) : “These figures I merely give by way of illustration,'and you will not confuse them with the actual figures shown by the evidence adduced upon the trial. You will observe that these tables and observations of the court are based upon the assumption that the supposed person would live as long as the average man of that age Avould live. If, under the evidence, the expectancy would be greater or less than that of the average man, or the earning capacity would increase or decrease, the cash value of the life should foe increased or decreased accordingly. In estimating the damages in this case [italics ours] you are authorized to consider feebleness of health, sickness, increased infirmities with age, and such other like causes that operate in human experience to decrease the earning capacity of a person.” We must confess that we are wholly unable to see any injustice or injury done to the plaintiff in error by this charge. “It is simply an explanation of how and in what manner the tables should be used, if the jury should consider them at all. It appears to us that the judge is bound, when these tables are introduced in evidence, to explain to the jury how they may be used, just as he should explain a table of logarithms if it were introduced in a case involving questions which that table' would illustrate. And so he should explain an almanac introduced to show the phases of the moon or the time of the rising and setting of the sun, etc.” Savannah, Florida & Western Ry. Co. v. Austin, 104 Ga. 618. The specific criticism is that “it allows the jury to consider the possibility of increased earning capacity of the plaintiff’s husband; while the law does not authorize such recovery, for the reason that the same would be speculative, too uncertain, and too indefinite; also that there was no evidence before the jury that would authorize them to find that the plaintiffs husband’s earning capacity would be increased, nor was there any evidence that could authorize the jury to find that his expectancy would probably be greater than that of the average man.” We think that when read in its entirety, the charge, instead of allowing the jury to consider the possibility of increased earning capacity, unduly limits the right; for after explaining to them that the tables were based on the expectancy of an average man with a uniform earning capacity, and after showing them that it would be necessary to vary the result in like proportion as the actual facts might warrant a departure from that average, either on account of increase or dimunition of either the expectancy or the earning capacity, he draws the specific application by saying, “In estimating the damages in this case, you are authorized to consider feebleness of health, sickness, increased infirmities with' age, and such other like causes that operate in human experience to decrease the earning capacity of a person.” We can not believe that any juror of sufficient capacity to grasp an explanation of the tables at all would be led to think that the judge, by the language used, intended that he should consider any likelihood of the increase in the deceased’s expectancj1' or earning capacity. It is in this view that we have said that we thought the charge unduly limited the jury in favor of the defendant, and not against it; for we think that, under the evidence, the jury would have been authorized not only to consider the chances of a decrease of earnings from the causes enumerated by the judge; but also to consider any probability of an increase of his expectancy beyond the average on account of his good health and good habits, as well as an increase of his earning capacity by reason of the fact that he was a young man, of good health, good habits, and of such character and attainments as to warrant his employment and retention in the responsible position he had held, while he was yet in possession of those years in which, common experience tells us, men climb the hill of life’s way before they begin to go down. “All men know that in the ordinary course of nature a man is born, grows'to maturity, has his meridian, grows old, with waning powers, and dies.” Southern Ry. Co. v. Scott, 128 Ga. 247, 57 S. E. 504. In Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620, as well as in the Scott case, supra, it is held that “a charge instructing the jury to take into consideration and give the proper effect to any evidence before them, if there be such, tending to show that’ there was a reasonable prospect of increased earnings on the part' of the plaintiff in case he had not been injured, should not be given, where there is no evidence to warrant it.” These two cases are cited by counsel for plaintiff in error to sustain their attack upon the charge. If the proper distinction existing between “earnings” and “earning capacity,” and between “prospects of increased earnings” and “probabilities of an increase of earning capacity,” be kept in mind, it will be seen that the charge in question does not violate the inhibition of the authorities cited; even if it is conceded that the charge is fairly capable cf being construed as submitting to the jury the right to consider any increase of earning capacity shown by the evidence. The damages are given on account of destruction of earning capacity; evidence of actual , earnings is received for the purpose of illustrating what the earning capacity is or probably will be. Richmond & Danville R. Co. v. Allison, 86 Ga. 149. It is error to admit prospects of advancement to a position of which the person in question has no definite assurance; but, to quote from the language of Mr. Justice ferewer in Richmond & Danville R. Co. v. Elliott, 149 U. S. 266, cited approvingly in the Scott ease, supra, “of course there are possibilities and probabilities before every person, particularly a jmung man, and a jury in estimating the damage sustained will doubtless always give weight to those general probabilities as well as those springing from any peculiar capacities or faculties.” Possibly we can make the exact distinction we are seeking to draw clearer by having recourse to the example proposed by Chief Justice Simmons in the Allison case, supra. After saying (86 Ga. 152), “While it is proper in cases of this kind to prove the age, habits, health, occupation, expectation of life, ability to labor, and probable increase or diminution of that ability with lapse of time, the rate of wages, etc., and then leave it to the jury to assess the damages, we think it improper to allow proof of a particular possibility, or even probability, of an increase of wages by appointment to a higher public office, especially where, as in this case, the appointment is somewhat controlled by 'political reasons;” and in support of the proposition he cites the following example: “The deputy-clerk of this court is very efficient and faithful, and if there should be a vacancy in the office of clerk of the court, it is not only possible, but very probable, that he would be appointed to fill the vacancy, thereby obtaining a much larger salary than he now receives; but if he should be injured, as Allison was, and were to sue the railroad company for damages, we do not think it would be competent for him to prove the possibility or probability of his appointment to fill a vacancy in the office of clerk, especially as the personnel of the court, upon which such appointment must depend, might change in the meantime. To allow the jury to assess damages in behalf of the plaintiff on the basis of a large- income arising from a public office which he has never received and which is merely in expectancy and might never be received, or if received at all might come to him at some remote and uncertain period, would be wrong and unjust to the defendant.’) This opinion was written and this example given over seventeen years ago. Time, as to the very example given, has justified the soundness of the proposition stated. The then efficient and faithful deputy-clerk of the Supreme Court has not yet become the clerk of that court, because the kindness of Providence has preserved the loved and faithful clerk, so that a vacancy has never arisen; and it is the hope of the bench and bar of the State alike that the present hardiness of health of that most esteemed official will ward off, for a long time, the day when the vacancy must occur. So that if the deputy referred to had been injured and, to enhance recovery of damages, had sought to prove this contingent expectancy, and the court had allowed it, it would have (as time has demonstrated) given him the benefit of a prospect of earnings which has not become a reality. On the other hand, in such a suit it would have been perfectly proper for him to have proved and for the jury to have considered (and therefore have inferred a probability of an increase of earning capacity) the fact that he was a young mán of good habits, good health, and good name, and that he was then capable of filling efficiently and faithfully a responsible position. And time has justified the wisdom of this rule as applied to the example given, for although the deputy referred to has never become the clerk of the Supreme Court, still those very qualities of efficiency and fidelity, the good name and capacity for the filling of responsible office, led the -Judges of this court, upon its organization, to choose him as its clerk at the same salary he would receive if he were clerk of the Supreme Court. Mr. Justice Lumpkin, in the Scott case, supra, points out certain instances in which prospects of earnings, being definite and not wholly contingent, may be shown to the jury and considered by them along with such general probabilities of an- increase of earning capacity as the proof of the person’s age, character, health, habits, etc., may indicate. In such cases the court may charge the jury on both prospects of increased earnings and probabilities of increased-earning capacity. In cases, such as the one at bar, where, there, is no evidence of a definite, reasonably certain prospect of.increase of earnings, but there is evidence as to the age, bealtb, habits, etc., of the .person, from which the jury may reasonably infer an increase of earning capacity, the judge should not submit to the jury any instruction by which they would be authorized to consider prospects of earnings, but may properly charge them upon their right to consider the probabilities of an increase of earning capacity. This disposes of all the assignments of error. Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    521.
    BELL v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY.
    1. Under the decision of the Supreme Court in the ease of Lyndon v. Georgia Ry. & Elec. Co., 129 Ga. 353, 58 S. E. 1047, the writ of error is not subject to dismissal.
    2. Where the record shows a return of service prima facie valid, and the defendant discovers the existence of the return prior to judgment, the objection of lack of service can be made only by plea in abatement, ac- ' companied by a traverse of the official return.
    (а) Such a plea, being dilatory in its nature,-should be verified.
    (б) If the return of service be made by a deputy sheriff, both he and the sheriff are necessary parties to the 'traverse.
    3. A plea to the jurisdiction must be verified.
    4. Service of process on a non-resident corporation may be legally perfected, sb as to give jurisdiction to the courts of this State for the rendition of a judgment of at least local efficacy, by handing a copy personally to an agent, designated as a “commercial agent,” who maintains an office in this State, furnished him by the defendant company, wherein he does chiefly correspondence, and who represents the defendant in soliciting freights and other business, but who has no authority to make contracts, sell 'tickets, or to collect money for the defendant.
    5. A special appearance urging lack of service and lack of jurisdiction is not waived by the filing of a demurrer or plea to the merits under the express protestation that the special appearance is not waived.
    Complaint, from city court of Atlanta — Judge Reid. March 18, 1907.
    Argued October 22,
    Decided November 11, 1907.
    Bell instituted his action in the city court of Atlanta against the New Orleans & Northeastern Railroad Company, alleging that the defendant had an office and an agent in the county in which the court is located. A deputy sheriff made the following return: “Served the defendant New Orleans and North Eastern Railroad Company, a corporation, by serving Ray Knight, its commercial agent, by leaving a copy oí the within writ and process with him in person at the office and place of doing business of said corporation in Fulton County, Georgia. This January 30th, 1906.” At the first term the defendant filed the following defense: “The defendant prays leave to appear specially for the purpose herein, set forth, and for no other purpose, and hereby traverses the- return of service made by J. T. Jones, Deprdy Sheriff, upon the summons and process issued in said cause, and moves the court to make said Jones a party hereto, and to set aside'the said return of service, for the reason that said return is untrue in fact; and defendant moves the court to disregard said return, for the reason that it is insufficient in law, and to dismiss said cause, and hereby prays the judgment of the court whether it should be compelled to appear therein or plead to the petition filed therein, for the reason that it has not been served with process therein, and has not acknowledged, and does not acknowledge service therein, nor waive due service of process upon it, on the following grounds, to wit: “(1) The city court of Atlanta has no jurisdiction over the person of defendant, for the reason that it is a non-resident corporation and is not doing business in the county of Fulton and State of Georgia, and has no place nor office in said county for transacting the usual and ordinary business of said corporation, and no officer or agent of said corporation is located in said county. (2) The person mentioned in said deputy sheriff’s return of service in said cause,- to wit, ‘Ray Knight,’ is not such an officer or agent of said corporation as is subject to service or process in suits against said corporation- in order to bind said corporation thereby, nor has he any power or authority to acknowledge service of process so as to make said acknowledgment binding upon said corporation, nor to waive such process. Said Knight was employed by the defendant, at the time of the alleged service of said process, for the sole purpose of diverting freight to such railroads leading out of Atlanta, Georgia, as had running connection with the defendant’s line at Meridian, in the State of Mississippi; he had no authority to sell tickets, or to make contracts or rates for the transportation of freight or passengers over the defendant’s road, nor to collect money due defendant for such transportation of freight or passengers. In order to enable said Knight to serve defendant in said employment of thus diverting freights over defendant’s line, it supplied him at its own expense with a desk room in the Equitable Building, in the second floor of said building, in Atlanta, Ga., which room was occupied in part by the employees of the Philadelphia, & Reading Railway and in part by another person, who was not connected in any way with, nor employed by either defendant’s road or' the Philadelphia & Reading Railway. This room was of small size and had only one door, leading out into the hall of said building, and on said door was printed the following wprds and notice, to wit: N. O. & N. E. R. R., A. & V. Ry., V. S. & P. Ry., Office Commercial Agent. Philadelphia & Reading Railway, Office Traveling Freight Agent, John J. Lynch.’ The letters and- initials aforesaid, preceding the words, 'Office Commercial Agent,’ were intended to refer to three different railroads by which said Knight was employed for the purpose hereinbefore set forth, viz. the New Orleans & Northeastern Railroad, the Alabama & Yicksburg Railway, and the Yicksburg, Shreveport & Pacific Railway.- Said Knight’s employment and line of work for the said three railroads necessitated his traveling about the territory adjacent to Atlanta most of the time, and hence he was out of his said office or room in the Equitable Building and away from the city of Atlanta from four to five days in every week. In fact he merely kept his desk in said room as a place for his mail to be sent and a place to write letters while in Atlanta and his said desk room in said room was paid for in part by each of the said three railroads by which he was employed as aforesaid.”
    By order the- deputy sheriff was made party to the traverse and acknowledged service. The plaintiff filed his motion to strike the plea to the jurisdiction and the traverse and exceptions to service filed by defendant in said case, on the following grounds: because the same is not sworn to; because said traverse is insufficient in law; because it appears from said traverse or plea to the jurisdiction that the defendant did have an agent in said county and a place of business; it is immaterial that the office was small, and that it had but one door to it, and that other companies had the right to use it; it is immaterial that the defendant’s agent also represented other companies; it is immaterial that said agent was limited in authority; it is not material that said agent was fre-quently out of the office. By way of amendment the plaintiff also filed the following: “Plaintiff moves to strike the defendant’s plea to the jurisdiction, on the following grounds: Said defendant company has filed a general demurrer to plaintiff’s cause of action, and in so doing has thereby pleaded to the merits of plaintiff’s cause of action. The demurrer, under our code pleadings, must be filed at the first term, and must be disposed of before •either the plea or answer, and, in being disposed of, is an admission and waiver of the court’s jurisdiction. Defendant has pleaded to the merits of plaintiff’s cause of action, and in so doing waives the right to plead to the jurisdiction of the court. Defendant has pleaded to the merits, and thereby invokes protection of the court in its defense, and hence can not deny the court’s authority to enforce the right of the plaintiff (on the ground that the defendant is not within the jurisdiction of the court) or to judge the liability of the defendant company. Said plea to the jurisdiction is not sufficient, because it is not set up therein what court in this' State has jurisdiction of said defendant company. Said plea to the jurisdiction does not show on its face jurisdiction in another •court. Wherefore plaintiff prays that the said plea be stricken. Plaintiff demurs to the defendant’s traverse and says that the saméis not sufficient, for the following reasons: The prayer in the traverse does not set up the fact that the sheriff has been notified that he is to be made, or of his having been made, a party defendant in the traverse. There has not been, such service on the sheriff, appearing upon the face of the traverse and the entries thereon, as to make the sheriff a party defendant to the traverse, in that it is not shown. The foregoing defects appear on the face of the traverse. Wherefore plaintiff prays that said traverse be stricken.”
    The court upon hearing these motions overruled them, and the plaintiff excepted pendente lite. From additional record which we have required the clerk of the lower court to send up, it appears that at the first term the defendant filed a demurrer to the plaintiff’s action, but this demurrer is prefaced with the following limitation and protestation: “On the first day of the term to which the above stated cause is returnable comes the New Orleans & Northeastern Eailroad, the defendant therein, and without waiving or acknowledging service of process, or the jurisdiction of the court therein, hut insisting upon the want of jurisdiction, and the want of legal service of process, set up in a special appearance-plea this day filed therein, defendant demurs to said petition as follows.”
    By consent, the judge, acting- as trior, without the intervention, of a jury, heard evidence, which was substantially in accord with the facts alleged in the defendant’s special plea in abatement; and he sustained the plea and dismissed the action. In the bill of exceptions sued out by the plaintiff, error is duly assigned upon the exceptions taken pendente lite. To the final judgment finding in favor of the plea, exception is taken, but the assignment of error is general, being in the following language: “to which ruling the plaintiff in error excepted, and now excepts and assigns the same as error.” The defendant in error filed in this court a motion to dismiss the bil-1 of exceptions, on the ground that the assignments of error are not specific.

      Burton Smith, Lawton Nally, for plaintiff.

      Tye, Peeples, Bryan & Jordan, Charles A. Read, for defendant..
   Powell, J.

(After stating the facts.)

Irrespective of whether the assignment of error to the final’ judgment is sufficiently specific or not, there is an exception to the final judgment, and error is duly assigned, through the exceptions pendente lite, to a controlling interlocutory ruling; therefore, under -the decision in Lyndon v. Ga. Ry. & Elec. Co., 129 Ga. 353, 58 S. E. 1047, the writ of error will not be dismissed.

It is the right of a defendant to appear specially before pleading to the merits, an,d, have the action dismissed on the ground that there has been no legal service of process. If lack of proper service appears on the. face of the record, advantage of this defect may be taken by motion or any other appropriate procedure, either before or after judgment, provided the defendant by his conduct has done nothing to waive service. Hobby v. Bunch, 83 Ga. 1 (5). When the record shows a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the-objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriff’s return must be duly traversed. 19 Am. & Eng. Enc. Pl. & Pr. 707; Civil Code, § 4988; Livingston v. Marshall, 82 Ga. 3. Being a dilatory plea, it must be filed at the first term, at least at the first term after notice, and must be sworn to. Civil Code, §§ 4988, 5049, 5058. Unless duly traversed, the return of the sheriff is conclusive. If the return is made by a deputy sheriff, both the sheriff and the deputy sheriff must be made parties to the traverse. We are not able to cite any Georgia decision in support of the proposition that the sheriff must be made party when the return of the deputy is traversed; for, so far as our investigation has disclosed, this point has never been made previously. However, the reason of the rule seems to demand that the sheriff be made a party. The rule that the officer is a necessary party to the traverse had been previously announced in several eases, but in O’Bryan v. Calhoun, 68 Ga. 218, Speer, J., states the reason as follows: “He and his securities on his bond have a vital interest in the question thus made, and they should have an opportunity to be heard on the issue the defendant has made.” It may be noted, too, that in Elder v. Cozart, 59 Ga. 199, the alleged service was made by a deputy, but it is spoken of as the sheriff’s act, in regard to the necessity for a traverse. By sections 4372 and 4379 of the Civil Code, the sheriff and the sureties on his bond are primarily liable for the misconduct of his deputy, although a concurrent liability may exist against the deputy and his bondsmen. Therefore, when the rer turn is by the deputy sheriff, both he and the sheriff are necessary parties to the traverse.

The plea to the jurisdiction is likewise defective in that it is not verified. Civil Code, § 5083.

For these formal reasons the demurrer to the special appearance should have been sustained. We also think that the general demurrer to it was well taken. “There are many years and manifold changes in economic conditions between the old rule, which denied the right to sue a foreign corporation in personam outside the jurisdiction of its creation, and the modern doctrine, that the question of jurisdiction' and suability is not so much one of citizenship as one of finding. . . The true test of jurisdiction is not residence or non-residence of the plaintiff, or the place where the cause of action originated, but whether the defendant can be found and served in the jurisdiction where the cause of action is. asserted. A corporation can be found in any jurisdiction where it transacts business through agents located in that jurisdiction, if the laws of the same provide a method of perfecting service on it by serving its agents. From 1845 to the present time the law of Georgia has provided that service of process necessary to the commencement of ‘any suit against any corporation in any court/ with certain exceptions which are not material to this discussion, may be' perfected by serving any officer or agent of such corporation, oír by leaving a copy of the process at the place of transacting the usual and ordinary business of such corporation, if such place shall then be within the jurisdiction of the State in which the suit is commenced. Civil Code, §1899. The language of this section is sufficiently broad to authorize the service of process in a suit against a foreign corporation that has a place of doing business in this State. . . A corporation is not always present where its officers are, but it is present in any place where’ its officers or agents transact business in behalf of the corporation under authority conferred by it. . . At common law service upon a corporation could be perfected only by serving its head officer, but whether service upon any officer would be sufficient to bring the corporation into court is a matter to be determined by municipal law.' The law of this State permits its own corporations to be brought into court by serving any officer or agent transacting the business of the corporation, and the statute is broad enough to allow service upon a foreign corporation in tile same way. The State of Georgia either expressly grants to these foreign corporations the right to do business within its limits, or tacitly permits them to transact business here. They are allowed to open offices in this State and here deal with our citizens and others who may he temporarily within its limits. The State protects them in the property which they hold. The courts of Georgia are open to them for the enforcement of any claim of any character which they may have against her citizens or citizens of other 'States passing through this State, subject only to the qualification above referred to. Can it be said that it is a hard rule, or a violation of any sound principle, that.they should be put upon the same footing as regards causes of action against them as that on which our own corporations are placed by the law of the land ?” Reeves v. Southern Ry. Co., 121 Ga. 561. In the case of Denver & Rio Grande R. Co. v. Roller, 100 Fed. 738, 49 L. R. A. 17, the service was perfected-under the California statute upon a soliciting agent who-maintained an office and performed, for the non-resident defendant company, services substantially similar to and in no wise broader than those performed by the agent in this case. The court in sustaining the service says: “The object of the service is attained when the agent served is, of sufficient rank and eháracter as to make it" reasonably certain that the corporation will be notified of-the service, and the statute is complied with if he be a managing or business agent in any specified line of business transacted by the corporation in the State where the service is made. That Shotwell, upon.whom the service was.macle, was such an agent is manifest from the facts above stated.” ' A similar ruling as to a similar agent was made in the case of Tuchband v. Chicago & Alton R. Co., 115 N. Y. 437. In the case of Green v. C. B. & Q. Ry. Co. (decided April 29, 1907), 205 U. S. 530, the Supreme Court of the United States decided: “While in a case of diverse citizenship the suit may be brought in the Circuit Court for the district of the residence of either party, there must be service within the district; and if the defendant is a non-resident corporation, service can only be. made'upon it if it is doing business in that district‘in such a manner, and to such an extent, as .to warrant the inference' that it is present there through its agent. A railroad company which has-no tracks within the district is not doing business therein in the sense that, liability for service is incurred because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic.” By way of distinguishing that ease from the Boiler case and the Tuchband case, cited supra, the court says: “The question here is whether service upon the agent was. sufficient, and one element of its sufficiency is whether the facts show that the. defendant corporation was, doing business within the district.' It is obvious that the defendant was doing.there a considerable business of a certain kind, although there was no carriage, of freight or passengers. In support of his contention that the defendant was doing business within the district in such a sense that it was liable to service there, the plaintiff cites Denver &c. R. Co. v. Roller, 100 Fed. 738, and Tuchband v. Chicago &c. R. R., 115 N. Y. 437. The facts in those cases were similar to those in the pres-case. But in both cases the actions were brought in the State courts, and the question was of the interpretation of a State statute, and the jurisdiction of the State courts.” This language connotes the idea that certain modes of service may be sufficient to give jurisdiction for State purposes and not for Federal purposes. It may be'that the service in this case is of such a nature that'if, upon a judgment rendered by virtue of it, suit should be brought in a sister State, the full faith and credit clause of the Federal constitution would not compel recognition of its validity; yet such a judgment is as enforceable as any other judgment may be in the courts of this State. That a judgment may have such attributes, see the case of Haddock v. Haddock, 201 U. S. 562.

"We are satisfied that the legislature of this State intended that service upon an agent bearing such relation to a corporation as Knight does to the defendant in this case should be sufficient under the broad language of §1899 of the Civil Code: “Service of all subpoenas, writs and attachments, and other process necessary to the commencement of any suit against any corporation in any court, except as hereinafter provided, may be perfected by serving-any officer or agent of such corporation, or by leaving the same at the place of transacting the usual and ordinary public business of such corporation, if any such place of business then shall be within the jurisdiction of the court in which said suit may be commenced. The officer shall specify the mode of service in his return.” To this legislative intent it is our duty to give effect, and we will let the Federal question take cafe of itself. See Southern Bell Tel. Co. v. Parker, 119 Ga. 727.

’ It was the privilege of the defendant to file demurrer, thereby pleading to the merits, without waiving the right to object to the service, upon expressly stating, as it did, that it was filed subject to the action of the court upon the preliminary question. High v. Padrosa, 119 Ga. 648; Medical College of Georgia v. Rushing, 124 Ga. 239 (3). Such an appearance, if the defendant had been successful in its effort to dismiss the action through the special appearance, would not have conferred jurisdiction upon the court, and would not have amounted to a waiver of process.

Judgment reversed.


author: Russell, J.

text:
    574.
    MAIN v. SIMMONS.
    1. While it is the duty of the court to construe a written contract, still a new trial will not be granted for failure to discharge this duty where the contract is submitted to the jury and properly construed by them. Especially is this true in a ease where, if the contract had been properly construed by the court, the construction would have been adverse to the plaintiff in error and the result would have been the samo as that reached by the jury in their verdict.
    2. The writing in this case evidenced an entire and not a severable contract; and the purchaser was not compelled to accept any of the lot of jewelry, unless the entire lot was of the character and quality purchased by him.
    3. The evidence fully sustaining the contention of the defendant that the greater portion of the lot of jewelry, which was the subject-matter of the contract, was worthless, the entire contract was avoided, the verdict in behalf of the defendant was authorized, and there was no error in refusing a new trial.
    Complaint, from city court of Eastman — Judge Clements. May 4. 1907.
    Submitted October 29,
    Decided November 11, 1907.

      W. M. Morrison, for plaintiff.

      D. M. Roberts & Son, for defendant.
   Russell, J.

The plaintiff in error, doing business -as the American Jobbing Association, brought an action on a written contract for the purchase-price of a lot of jewelry therein described and ordered by the defendant. The purchase-price of the lot of jewelry was $215.50. The petition set out the contract, that the jewelry had been delivered to the defendant, and that the defendant had not availed himself of any of the three privileges set forth in the order or contract of purchase. The order was as follows:

“American Jobbing Association, not incorporated, Chicago, Illinois.
Order.
“Gentlemen: — Please ship me the assortment of goods described on the back of this order, in accordance with the terms hereon.
“Privilege No. 1. Any article in this assortment which the purchaser has sold to his customer and which does not give reasonable satisfaction, considering price paid for it, may be returned, and we will refund the price originally paid or will repair or replace the article so failing to wear as it should, provided the article is returned to us by registered mail and the name and address of the dissatisfied customer is given.
“Privilege No. 2.. Any piece of jewelry purchased from us, not finding ready sale after being properly displayed for 60 days, may be exchanged, dollar for dollar, at the purchase-price, for any other jewelry in oiir stock within 'one year from date o'-f purchase. Should any of the goods in this order prove unsatisfactory in style, price, .quality, finish, assortment, or selling quality, they .must be returned for exchange- as above provided, but can not be returned for credit. Repairs on jewelry free for one year. •
“Privilege Np. 3. Unsold goods can be returned for cash on the .following terms: Should purchaser have sold.less than three-fourths of the jewelry -contained in- this order at the end of one year from date of shipment, we' agree to purchase from him, for c^sh, at the purchase-price, all unsold goods which hp originally bought of us and which remain unsold at the end of ¡this time. This agreement js made with the understanding and as a condition that the purchaser send us every three months between the first and tenth of the mpnth an itemized list of .all, goods (on hand and that he keep the goods displayed for sale one year. These conditions may be omitted by customers who are satisfied with their sales, and by so doing they will void no portion of this contract except this'paragraph. Wd assist you! Attraction creates attention,atténtion fosters‘curiosity,"and curiosity makés deinahd. 'Théréfo’re, for the purpose of assisting the pur chaser and creating a demand of all' kinds- of his goods, we furnish, with each full order only, 50 half'pairs gents 'cuff buttons’without ehárge ahd’agree'to mail 50 duplicates to fifty heads of families, the námés and addresses of whom'are to be furnished by the purchaser’of. this assortment by mail within ten days from date hereof, or vendors may!, if they choose and find it convenient, if purchaser neglects to furnish list as agreed, obtain the list otherwise. An appropriate letter and a certificate good for the duplicate ’ button will also be mailed and when the holder thereof had purchased any goods from the merchant equal to $5.00 in value the' certificate bécomes good and he will be given the duplicate button.
‘‘Terms of'- Settlement. Long time’if closed by acceptance. The amount of this .order is payable in six equal installments, due’ two, four, six, eight, and twelve months from date of invoice, provided purchaser sends us within'15'days -from date of shipment-from our most’convenient place'of business his'-six acceptances for amounts' and time of above payments, payable to our order at Chicago, 111. Liberal cash discount. If acceptances are not sent us as above-terms are cash. Five per cent, discount if paid in full within 15 days from date of shipment.
“Special Notice.
“No privileges herein granted will be allowed unless terms of sale are complied with and acceptance, if any, paid when due. Delivery to transportation company at our most convenient place of business is hereby conceded delivery to the purchaser. In consideration of the special terms and conditions of this order purchaser agrees not to countermand either before or after it is accepted-by us. The representative of the American Jobbing Association is a soliciting agent only and has no authority to make agreements of any kind for that-company. If any changes in the order are desired they must appear in writing hereon. I acknowledge that all the tetras and conditions under which T desire to purchase the goods listed on this order appeared hereon. This orderyis given subject t-o acceptance by the American'Jobbing Association.
Signature'of purchaser, ■ D. Wh Simmons. •
Post-Office, Eastman, Ga.
Nearest Express Office, Eastman, Ga.
Date 11/1905 ...........................salesman.-
“To insure long and pleasant business relations, misunderstanding must be guarded against. Purchasers will therefore please carefully read t-his order.
“Citizens Banking Company.
“Original. Order Itemized.
“Carefully read all the terms and conditions contained in'this o^der.
. “Salesmen are not authorized to receive money or goods from customers.”

Following this order is the statement of the articles comprised in the assortment of jewelry and the price of each; the entire assortment aggregating $215.59. - ■

The defendant denied all of- the allegations of the plaintiff’s-petition, except as to the jurisdiction of the court and that he gave-the order above quoted;'and, for further answer, admitted that he purchased the lot' of goods described in the order, but averred that the plaintiff did not ship the goods he purchased as described in the order, but fraudulently substituted, in place of the goods ordered and described in the contract, a lot of cheap jewelry, of no value whatever and utterly unsalable. He further pleaded, that as soon as» the goods reached him and he had an opportunity to examine them, he tendered back the jewelry to the plaintiff’s attorney; that he still had on hand all the lot he had received; and he made a continuing tender. He admitted that he refused to sign the acceptance referred to in the petition and in his order, because he never received the articles described in the order, but, on the contrary, the articles sent were spurious and worthless, and were not the goods he had purchased from the plaintiff, described in said order. The testimony of the defendant in support of his plea was uncontradicted. He testified, that the -plaintiff never shipped him the goods he ordered; that the goods shipped were brass and worth nothing at -all; that the goods he ordered, as described ■ in the contract, would have been salable. He further testified, that as soon as he saw the goods he received, he notified plaintiff that the goods were subject to his order and he had not sold or exposed for sale any of the articles included in the order. The defendant further testified, on cross-examination, that he had no complaint to make of the.articles included in the lot of jewelry which were not claimed to be gold; that his only complaint related to the goods described in the order as gold filled, or rolled-gold filled. He admitted that some of the articles shipped were as ordered, but testified that two thirds of the goods ordered were to be gold filled, and that he refused the jewelry because this portion of the lot of jewelry was not as ordered. The jury rendered a verdict in favor of the defendant. Plaintiff moved for a new trial, upon the grounds, that the verdict is contrary to law and evidence; that the court erred in submitting to the jury the question whether the contract upon which the plaintiff’s action is based is an entire or a severable contract; that the court erred in not construing said contract to be a severable one, and not charging the jury that the. plaintiff was at least entitled to recover the purchase-price and value of the lot of goods embraced and described in said contract which are not described as being gold filled or rolled-gold filled.

The court erred in submitting the construction of the contract to the jury. “The construction of a contract is a.question for the court.” Civil Code, § 3672. This is the general rule, and it is only in the case of ambiguity that parol evidence is admissible or that the meaning of the contract can be submitted to the jury. But while it is the duty of the court to construe a written contract, still failure, to discharge this duty is immaterial if the jury by their verdict properly construe such contract. As we have already held in Moss Manufacturing Co. v. Carolina Portland Cement Co., 1 Ga. App. 232, this is especially true where it appears that the proper construction of such contract would be adverse to the contention of the complaining party. And the same doctrine was' laid down in Tilton v. Butts, 78 Ga. 30, where the court held that “it is the duty of the court to construe a written contract, but if he had properly construed the contract in this case it would not have benefited the plaintiff in error, and the result must have been the same as that reached.” The first assignment of error, therefore, must be considered solely with a view to the question whether the jury properly construed the contract, and, having so construed it, whether their verdict was the proper conclusion in the case.

The real point in the case, then, is whether the contract is entire or severable; and the counsel for both parties concede this to be the controlling issue. We hold that the order for the lot of jewelry, which we have quoted above, when signed by the purchaser and accepted by the vendor, evidences an entire contract of purchase of the "lot of jewelry identified and described in the bill of particulars, but summarized in the gross sum for which suit was brought and based upon the written order. The privileges mentioned were to be enjoyed only subsequently to the completion of the real contract of purchase and delivery of the-goods, and after the payment of the purchase-price. That did not in any way rebut the evident intention of both parties to create an entire contract. This being true, the purchaser, when he discovered that there had been palmed off on him spurious articles more than for two thirds of the amount of the entire purchase, which bore no comparison in value to the articles he had ordered, was at perfect liberty to consider the contract as avoided by the seller, and to reject, as he did, the entire lot. “Where the contract is entire, performance by the party undertaking the contract is a condition precedent to a recovery against the other party upon the contract.” Hill v. Balkcom, 79 Ga. 444. See Cutter v. Powell, 2 Smith’s Leading Cases, Part 1, 1.

Though the court should have construed the writing to be an entire contract, the verdict of .the jury properly construed it; the evidence for the defendant fully authorized him to reject the entire lot of jewelry, and fully warranted the finding of the jury in his favor. Judgment affirmed.


text:
    600.
    RANSOM v. THE STATE.
    1. There are two branches of the rule controlling alibi in this State. The: first is that the accused is only required to establish his alibi to the reasonable Satisfaction of the jury, — not beyond a reasonáble doubt. Tlie second is, that, nevertheless, any evidence of alibi whatsoever is to be considered on the general case, with the rest of .the testimony, and, if a reasonable doubt of guilt is raised by the evidence as a whole, the defendant should be acquitted.

      2. Proof Of an inculpatory admission will not authorize a charge upon the subject of confession. A confession is a voluntary admission of guilt. An admission, as applied to a criminal case, is the statement by the defendant of a fact or facts pertinent to the issues and tending, in connection with proof of other facts or circumstances, to prove the guilt of the accused, but which ■ is of itself insufficient to authorize conviction. An admis.sion is a circumstance which requires the aid of further testimony to generate a reasonable conclusion of guilt. The nearer an admission approaches the completeness of a plenary confession of guilt without attaining 'thereto, the more likely is any reference in the charge to the subject of confession to confuse the jury and harm the defendant.
    Accusation of larceny from house, from city court of Sylvester — Judge Park. June 12, 1907.
    Argued July 18,
    Decided November 11, 1907.

      Payton & Hay, for plaintiff in error.

      J. H. Tipton, solicitor, contra.
   Russell, J.

The defendant was convicted of larceny from the-house, and, upon the overruling of her motion for new trial, excepted. It is needless fo discuss any of the twelve assignments of error, except two. The others are wholly without merit. So far as the facts are concerned, the issue between the State and the-accused is clear cut and well defined. The evidence for the State tended to show the larceny of a cap and hat pin. The evidence in behalf of the defendant, if believed by the jury, established an. alibi and made it impossible for the defendant to be the thief, even if the corpus delicti was proved.

For this reason we think that the judge should not have per-' haps stressed the burden devolving upon the defendant, and perhaps magnified it, by reading and then repeating to the jury §992 of the Penal Code, without telling them, in the same condition, that the onus was on the accused to verify the alibi, not beyond all reasonable doubt, but only to the reasonable satisfaction of the jury; and further, that any evidence whatever of alibi is to he considered on the general case, with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. No request to charge upon the subject was presented, and therefore we should not reverse the judgment upon this ground. We refer to it, however, because we know that the upright and impartial judge who presides in the city court of Sylvester needs only to have the matter suggested, in order that there may be even no vestige' of ground for complaint on the future’ trial of this case, which we are constrained to award upon another ground.

It has been frequently ruled that when the defense of alibi is set up in a ease and is sustained by testimony, the failure to' charge upon the law of alibi will cause a new trial. The judge in this case charged the law of alibi by twice repeating to the jury §992 of the Penal Code. In the absence of a written request for more specific instructions, this may be a compliance with the letter of the rule laid down in Moody v. State, 114 Ga. 449, Fletcher v. State, 85 Ga. 666, and other decisions. But we think the far better and fairer practice is to specially instruct the jury in every ease further that the accused is not required to establish his defense of alibi beyond a reasonable doubt, but only to the reasonable satisfaction of the jury; and to charge in addition, that even if the alibi be not established to the satisfaction of the jury, any evidence whatsoever of alibi must be considered with the rest of the testimony, and if a reasonable doubt of guilt be raised upon the consideration of the evidence as a whole, the defendant should be acquitted. Harrison v. State, 83 Ga. 130; Landis v. State, 70 Ga. 651. As said by Judge Jackson in Ledford v. State, 75 Ga. 858 (3), “The charge excluded all the evidence about the alibi from, being weighed by the jury on the subject of reasonable doubts of defendant’s guilt, on the issue of guilty or not guilty of the riot. Though the burden was the defendant’s to show alibi to the satisfaction of the jury, and on that issue reasonable doubts would not avail him, yet, oh the final issue of guilty or not guilty of the riot, all the evidence is for the consideration of the jury, and it is for them to say whether, from all of it, he is guilty beyond a reasonable doubt. See 3 Blackstone, 363; 65 Ga. 304; 74 Id. 833, 393, and 59 Id. 142.”

"We think a new trial should have been granted because the court erred in charging the jury upon the subject of confessions, as excepted to in the seventh ground of the motion for new trial. After properly instructing the jury upon the law of circumstantial evidence (as he should have done in this case), the court gave sections 1002 and 1005 of the Penal Code in charge to the jury. Section 1005 is as follows: “All admissions should be • scanned with care and confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction.” This charge was not followed' by any further instruction by the court on the subject, nor was the attention of the jury called to the difference between an inculpatory admission and a confession. If the court had in the charge clearly drawn the' distinction between a confession of guilt and an inculpatory admission, the error would not have been so grave. But we do not think that any reference to the subject of confession was authorized by the evidence in this case. And we are.further of the opinion that the reference was peculiarly harmful to the defendant, for the very reason that unless the attention of the jury was specifically and directly called to the marked distinction between a confession and an inculpatory admission, they would most probably be misled into the conclusion that there was evidence of a confession. This, however, is not the case.

The evidence of the prosecutor was that he asked the defendant where she got her hat pin, “and she said she got it out of a hat there on the table.” This was no confession that she had stolen the hat pin. It was an inculpatory admission, — a circumstance, which in connection with the facts that the defendant had the hat pin partly concealed under her apron, and that she voluntarily gave up the hat pin and the cap upon being discovered with them,— would have authorized the jury to find a verdict of guilty. But it does not amount to a confession, because it required other facts, to which we have alluded, to develop the conclusion that the taking was with intent to steal. This court has heretofore ruled, in Riley v. State, 1 Ga. App. 651 (57 S. E. Rep. 1031), .in which the subject is fully treated, that “proof of an inculpatory admission will not authorize a charge upon the subject of confession.” There is a very marked difference between voluntarily admitting guilt of a criminal offense or admitting the main fact or facts which are absolutely inconsistent with innocence, — and admitting a fact or a number of facts which could be true and yet consist with innocence. The admission of the defendant that she got the hat pin out of a hat on the table in the prosecutor’s store, considered alone, was a statement consistent with innocence; for it did not admit the main fact, that the taking was with intent to steal. Proof of the intention without which there can not be guilt of larceny had to depend on other facts and circumstances in the testimony. It would be proper to instruct the jury that if they believed any admissions were made by the defendant as to any fact or facts illustrative of her guilt or innocence, they might consider this circumstance in connection with and in the light of any other facts, if there be any such established to their satisfaction, bearing upon the guilt or innocence of the accused, and from all of the testimony determine her guilt or innocence, but that all admissions should be scanned with care and received with great caution. But unless a confession has been shown, the subject should not be presented to the jury at all. This is no new doctrine of the law. It has been held repeatedly by our Supreme Court and more than once by the Court of Appeals. To refer to the subject of confession, in a charge to the jur}», where nothing but the circumstance of an incriminatory admission has been shown, is the more harmful the more nearly the admission approaches the completeness of a plenary confession of guilt. Judgment reversed.


text:
    611.
    Lett v. The State.
   Russell, J.

The guilt of the defendant being dependent entirely upon circumstantial evidence, the failure of the trial judge to charge the jury upon that subject, and to instruct them that “to warrant a conviction on circumstantial evidence, the proven facts must riot only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused” (Penal Code, § 984), required a new trial. Riley v. State, 1 Ga. App. 651.

Certiorari, from Morgan superior court — Judge Lewis. April 29, 1907.

Argued July 18,

Decided November 11, 1907.

M. C. Few, for plaintiff in error.

J. E. Pottle, solicitor-general, E. W. Butler, contra.

Judgment reversed.


text:
    722.
    HOWARD v. THE STATE.
    1. Upon the trial of one charged in the same indictment with murder and assault with intent to murder, where there is no evidence of a mutual intent to fight, neither the law of voluntary manslaughter nor that of assault and battery is necessarily involved. The law of voluntary manslaughter is, however, applicable to evidence showing the homicide to have been committed under that sudden, violent impulse of passion supposed to be irresistible, and justly aroused, either by an assault or other equivalent circumstances.
    2. The deliberate intent to kill must be shown before a conviction of assault to murder is authorized. The nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted, as well as the brutality and duration of the assault, are each and . all circumstances from which an intent to kill may be inferred,
    3. The evidence as to the circumstances of the assault, being uncontradicted and suggesting no reasonable hypothesis save that the assault was made with intent to kill (either maliciously or in self-defense), a charge upon the subject of assault and battery would have been error.
    4. Every phase of the law of justifiable homicide and self-defense having been fairly and lucidly presented to the jury, and the evidence fully authorizing the verdict rendered against the defendant, there was no error in the judgment refusing a new trial.
    Indictment for assault with intent to murder, from Muscogee superior court — Judge Little. August 9, 1907.
    Argued October 9,
    Decided November 11, 1907.

      T. T. Miller, for plaintiff in error.

      S. P. Gilbert, solicitor-general, Spencer R. Atkinson, contra.
   Russell, J.

The defendant was convicted of assault with intent io murder. His motion for new trial was overruled, and he excepts. The complaint of the plaintiff in error, though variously presented by the learned and ingenious counsel, is addressed to ohly one point, — the failure of the court to instruct the jury that the defendant might be found guilty of assault and battery. 'The ■exceptions contained in the seventh and eighth grounds' of' the amended motion for new trial, in which it is insisted that the court erred in certain instructions, are without merit, when the ■excerpts complained of are considered in connection with the entire charge. In the lucid presentation of the law of murder and ■of justifiable homicide, and of assault with intent to murder, we ■can not find a single flaw. The jury could not have been misled •o^ confused by any of the instructions of the court; and they were told more than once that the defendant could not be convicted of assault with intent to murder unless the proof showed’ a deliberate Intention on his part to kill the deceased. But the court did not instruct the jury upon the theory of the law of mutual combat, except as related to the defense of voluntary manslaughter. If the law of voluntary manslaughter should have been given in charge to the jury to guide them in case they believed the death •of the deceased was due to the act of the defendant, the jury should have been instructed that if they believed that the defendant assaulted the deceased under such circumstances as that if death had resulted the defendant would only have been guilty of voluntary manslaughter, and, in that event, if they were not satisfied that the death of the deceased resulted from the act of the defendant but were satisfied that the defendant assaulted him,'then the defendant might be guilty of assault and battery. No exception is taken to the charge of the court upon the subject of voluntary manslaughter. The complaint is, that the jury should have been instructed that the defendant might be convicted of a lesser offense than that of assault with intent to murder.' The exception is presented in the tenth ground of the amended motion for new trial, as follows: “Because the court erred in failing to charge the jury upon the law of assault and battery in connection with his ■charge of the law of assault with intent to murder, there being evidence of mutual^ combat between the deceased and the accused, so that the jury may have been instructed that, in the event they should believe from the evidence that the defendant, though not .justifiable in striking the deceased and though they may not have believed that if death had ensued the crime would have been murder, the jury, undér such circumstances, .could return a verdict .against the defendant for the offense of assault and battery.”

in onr view of the case there was no phase of the evidence under which a charge upon the subject of either voluntary manslaughter or of assault and battery was required. The defendant might have taken exception to the charge upon the law of voluntary manslaughter, but he has preferred not to do so. But the fact that the-law of voluntary manslaughter was charged, where the evidence in the case did not authorize this instruction, affords no ground of exception to the failure to charge the law of assault and battery. The issue between the State and the accused at the conclusion of the testimony was clear cut and well defined. The assault of the-defendant upon the deceased was either justifiable, because in self-defense, or it was a wanton, cruel, and unprovoked attack with intent to kill. If the jury beliered the defendant was justifiable,, he should have been acquitted. If they believed, as they were-obliged to do from the barbarous character of the injuries inflicted upon the deceased, that the defendant intended to kill him, then there remained only one question for the jury to settle, which was,, whether the. death of the deceased was caused by the wounds inflicted by the defendant, or whether his death resulted from wounds-received at the hands of another. If the jury believed that the defendant struck the deceased repeatedly with a cedar stick until the back of his head was a mass of matted blood and brains, under the circumstances testified to by the witnesses for the State, and' further believed that the wounds with the stick caused the death of the deceased, they should find the defendant guilty of murder. If they were not satisfied or had reasonable doubt as to whether the death of the deceased resulted from the blows inflicted by the defendant, or whether the stabs and pistol wounds were the immediate cause of death, then they should find the defendant guilty of assault with intent to murder. There is not a particle of evi- ‘ dence in the record which evidences that there was a mutual intent to fight on the part of the defendant and the deceased, unless it be the statement of the deceased, drunken, helpless, bleeding, perhaps dying, with his face to the ground, that he would kill the de* fendant if he ever got up. And this statement was made after he had been beaten to thé ground by from five to eight blows from the heavy cedar stick used by the defendant. According to the testimony in behalf of the defendant, he struck the deceased because he was obliged to, and this is also his statement. It was a case of urgent, pressing necessity, in absolute protection of his life and safety. The deceased, according to this testimony, was advancing upon the defendant in a terrible passion, inflamed to.madness by liquor, with a long and dangerous knife, with the evident present intent, if possible, to kill the defendant, and the defendant used no more force than was necessary to protect himself in this imminent danger. The jury were fully instructed on the only theory of justification presented by the defendant, and no theory of mitigation was presented by the evidence. According to the testimony for the State, the defendant rushed upon the deceased, who was engaged in a quarrel with some negroes, before the deceased was even aware of his presence, — threw him to the ground, first choked him, and then beat him with a largo cedar stick, while the deceased was prostrate upon the ground, until there were left, as a result of the beating, two complete fractures of the skull and various other wounds. From the standpoint of this testimony, the assault was unprovoked, the deceased had no time to form any intent to resist; and as he had, up to that time, been upon the best of terms with the defendant, it could not be said that he participated mutually with the defendant in an intent to light. It has been decided that a mutual intent to fight can exist and never a blow be struck. But according to the evidence, if the deceased had time to form any intent before he was wounded nigh unto death by the defendant, it could hardly be said to be an intent to fight. The only intent must have been the intent to resist, in order, if possible, to defend himself. For, according to the testimony for the State, he had not fetched his weapons (he had none) ; nor had bo begun a difficulty in concert with the defendant, because ho was attacked by the defendant while engaged in a quarrel with other parties.

'After a laborious inspection, rereading, and review of the voluminous mass of testimony in this case, we are satisfied that there is no error of law or of fact of which this plaintiff in error can justly complain. The record pictures one of the darkest tragedies and one of the most diabolical scenes which has ever been brought to our attention. It discloses a carnival of crime upon the fateful Sabbath day upon which the deceased lost his life. It is pathetic that as he bid his wife and little children farewell he kissed them each in turn. It is a sad testimonial to the frailty of human nature that he was hardly out of sight of his home, where he might-have spent a very different Sabbath, before the desire for strong drink had overmastered his better impulses. All Sunday morning (and the evidence shows that it was a bright and sunny Sabbath), the deceased, the defendant, and another companion spent their time in the successful search of one blind tiger after another. Bottle after bottle of whiskey was consumed as they went from one gambling rendezvous to another until they reached the house which, as it turned out, was to be the scene of the tragedy, and more whiskey was obtained. It is shown from the evidence that while the deceased had never before visited the Bryant house, the defendant was thoroughly at home there. In a short time the deceased, maudlin with inebriety, became engaged in a wordy difficulty with two of the negroes in the yard, while the defendant, according to his own statement, was conversing with the negro women and children in the house. Some one cries out that there is going to be a difficulty between the deceased and the negroes, and the defendant rushes from the house with an oath, telling the deceased that these are his negroes, and throws him to the ground. This much of the case is left in no doubt. Nor is it contradicted that the defendant struck the deceased several times with the knotted cedar stick, though it was testified that these blows were given in self-defense. There is ample evidence, on the other hand, from more than one witness, that the blows with the stick were wholly unprovoked. The jury had the right to determine which was the truth of the transaction; and the character of the stick and of the wounds inflicted (if the jury believed the assault was unprovoked) could leave no room whatever for speculation as to the intention with which the wounds were inflicted. There could be but one inient — whether it was successful or not — to kill the deceased.

Judgment affirmed.


author: Hill, C. J.

text:
      725.

    FORD v. THE STATE.
    1. The practice of examining witnesses by trial judges is disapproved. Such practice frequently delays and defeats justice, and impairs or destroys the right of a fair and impartial trial by jury.
    2. The practice in harmony with our judicial, system requires trial judges to confine themselves to an enunciation of the law, leaving to counsel the duty of elucidating tlie facts, and to juries the right of finding the truth in the evidence.
    3. While the mere multiplicity of questions propounded to witnesses by the judge does not of itself constitute error, such usurpation of the prerogative of counsel approaches dangerously near to- the border line of prohibited jrtdicial interference with the exclusive right of the jury.
    4. The rigid and extended examination of the witnesses for the defendant on the vital points of the defense by the trial judge had a tendency to discredit the testimony; and, following the decisions of this court in Sharpton v. State, 1 Ga. App. 542 (57 S. E. 929); Rouse v. State, 2 Ga. App. 184 (58 S. E. 416), and Taylor v. State, 2 Ga. App. 723, a new trial must be granted.
    Indictment for manslaughter, from Worth superior court — Judge Spence. June 20, 1907.
    Argued October 9,
    Decided November 11, 1907.

      Jesse W. Walters, for plaintiff in error.
    W. E. Wooten, solicitor-general, J. H. Tipton, contra.
   Hill, C. J.

Plaintiff in error and the deceased, two negro boys, aged respectively fifteen and nineteen years, were participants in a dance at night. A difficulty took place between them, and the plaintiff in error shot the deceased three times with a pistol, killing him almost instantly. The evidence was conflicting as to every material fact. The testimony for the State made a case of ■unprovoked murder, following a previous difficulty the night before, in which the defendant was the aggressor, and after which he made repeated threats to kill the deceased.- It appeared therefrom that on the night of the homicide the defendant, without any provocation, assaulted and cursed the deceased, who was unarmed, and immediately drew his pistol and shot him. The testimony for the defense entirely contradicted these facts. According to it, the deceased was the aggressor at the previous difficulty, made threats thereafter to kill the defendant, and at the time of the billing, without any provocation, cursed and assaulted the defendant, drew his pistol, and was advancing on the defendant, endeavoring to shoot him, when the defendant, who was trying to avoid the encounter, shot and killed him in self-defense. There was also evidence of a mutual combat, deliberately planned and sought, and, after preparation with deadly weapons, engaged in with premeditated deadly purpose. There was also some evidence presenting the old doctrine of manslaughter, where two draw their weapons upon a sudden quarrel, a combat ensues, no undue advantage being sought or taken on either side, and one kills the other. The jury settled the conflicts in the facts, and declared that the truth made the defendant guilty of voluntary manslaughter. There was ample evidence to- support such finding. We therefore can not disturb the verdict, unless some material and harmful error of law was committed.

The charge of the court very clearly and very fully submitted to the jury every grade of homicide as well as the law of self-defense as laid down in the code of this State, and we think the several exceptions to certain portions thereof, whether considered alone or in connection with'the entire charge, are without substantial merit. The court not only accurately and clearly presented the law of the case, but submitted fully and impartially the issues in controversy.

It is insisted that the court committed error and “exceeded its power and discretion as the trial judge, in taking charge of the witnesses both of the State and the defendant, conducting a great part of the examination of the witnesses, asking many leading-questions, many of which were of a discrediting character, and liad a tendency to discredit defendant’s witnesses in the opinion of the jury, and thereby injured and damaged him, all of which is shown by the questions and answers of the witnesses. Defendant insists that it is the province of the court to ask questions where the matter is misunderstood, and better perhaps to suggest to counsel and have him elicit the information for the court, and that it is not the proper practice to ask so many questions of the nature of those set out. Defendant insists again that such practice on the part of the court is calculated to impress the jury with the court’s opinion of the case.” The errors complained of in the foregoing assignment are not clearly and specifically pointed out. All the questions propounded by the court, and the answers thereto, are fully set out as a part of this exception. This court’s attention is not called to any question or answer claimed to have been damaging to the defendant, but it is invited to consider the entire examination conducted by the trial judge, consisting of probably five hundred questions and answers, and condemn the whole, or pick out therefrom such as the court thinks justly amenable to the criticisms made. The duty of pointing out error devolves upon him who charges error; and courts of review can with propriety refuse to embark upon “a voyage of discovery to find and expose errors.” While the complaint in this connection is entirely too general, it challenges the fairness of the trial because of tbe conduct of the judge in an examination of the witnesses. The court is charged with making an assault upon the very citadel of the defendant’s rights, — a fair, impartial, and exclusive trial by the jury on the facts. Because of the gravity of the accusation, this court has waived the lack of definiteness as to specifics, and has given to the entire examination of the witnesses by the judge the most careful consideration. This examination was of great and unusual length; and while we are not prepared to say that the multiplicity of’ questions propounded by the court, in itself, proves error, we clo think such indulgence by the judge approaches dangerously near -the line of judicial expression or intimation of opinion. As we have before said in the Sharpton case: “It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial, without in some manner, and to some extent, indicating his oto opinion.” When the examination is not confined to one witness, but extends to many witnesses, and exhibits an active participation by the judge in the elucidation of the facts, we are inclined to think it becomes not “almost,” but altogether “an intellectual impossibility.” The jury necessarily regards the bringing out of the facts as the duty of the counsel engaged on opposite sides; and when the judge enters upon tbe arena occupied by the contending parties, he brings to the combat with the witnesses the overwhelming weight which attaches to the idea of judicial impartiality. By the very fact of his examination of the witnesses, jurors are led to the conclusion that the judge entertains an opinion, and they become most alert to discover such opinion. The examination of witnesses at great length by the judge diverts the attention of the jurors from the testimony of the witnesses to the questions asked by the court, in the effort to find out what the judge thinks of the matter at issue. Besides, such usurpation of duty on the part of the judge tends to confuse and disparage the attorneys conducting the ease. Viewed from every standpoint, the practice of trial judges participating in the examination of witnesses is unwise. Such practice in criminal cases most frequently results in the eventual escape of the guilty; for where there is a violation of either the spirit or letter of the statute forbidding the intimation of opinion on the facts, however clearly guilt appears, a reversal inevitably follows, and the fact of reversal has great moral weight on a second trial. But while this practice now under condemnation causes frequent, unnecessary and costly delays of justice, and in many cases its ultimate defeat, yet even the guilty have the right to an absolutely fair, impartial, and exclusive trial on the facts by the jury. The voice of the law is clear and mandatory. On facts, it seals the lips of the judge and makes the jury its only mouthpiece. It is always wiser, safer, better, and justcr that trial judges should confine themselves exclusively to an -enunciation of the law, leaving to counsel the duty of elucidating the facts, and to juries the finding of the truth in the evidence.

Applying the foregoing remarks to the examination of the witnesses by the trial judge in the instant case, we have come to the conclusion, after weighing every question and answer, that the positive mandate of the law which forbids the judge from entering the “domain of conflicting facts” was violated, at least in one instance, at a point where the combat between the prosecution and the defense was crucial and critical. Two vital facts were relied upon by the defense — the backing of the defendant before he shot the deceased, and the possession of a pistol by the deceased which he was trying to use when shot. The court, by a rigid, lengthy examination of the witnesses who testified in favor of the defendant on these two points, must have discredited to some extent this testimony in the minds of the jury. We are all the more clear that this was harmful error from the fact that a belief by the jury in its truth would have authorized a verdict of acquittal. Following the rulings of this court in Sharpton v. State, Rouse v. State, and Taylor v. State, supra, we are constrained to grant a new trial on this ground.

Judgment reversed,.