text:
    8249.
    WILLIAMSON v. MARTIN-OZBURN REALTY COMPANY.
    1. A defendant can not by demurrer to a petition avail himself of the defense of dual agency on the part of the plaintiff, where it does not appear from the petition that the inconsistent relationship was unknown to him.
    2. The evidence authorized the verdict, and no error of law was committed.
    Decided February 16, 1917.
    Complaint; from Fulton superior court—Judge Pendleton. December 20, 1915.

      Westmoreland & Westmoreland, for plaintiff in error.

      Dorsey, Shelton & Dorsey, contra.
   Jenkins, J.

On March 22, 1913, Martin-Ozburn Eealty Company filed suit in the superior court of Fulton county against E. H. Williamson, in two counts. In the first count the plaintiff alleged that the defendant owed it $690, with interest at 7 per cent, per annum from November 8, 1912, for commissions due the plaintiff as real-estate agent and broker; that prior to May, 1912, Mrs. Harriett F. Brandon and Mr. James E. Wylie, through their agent, Bun Wylie, listed a certain piece of real estate with the plaintiff for sale, agreeing to pay the plaintiff $690 if it sold the property for $21,690, and that it showed the property to various prospective purchasers, and in the month of May, 1912, through its agent and salesman, A. M. Eeid, showed it to the defendant, stating to him the price and the names of the owners; and that on November 8, 1912, the defendant, by fraudulent representations to the owners, purchased the property directly from the owners, without disclosing to them that the plaintiff had shown the property to the defendant and thereby defrauded the plaintiff out of its commission. The second count set up an indebtedness to the plaintiff in quantum meruit for labor performed and services rendered, in the sum of $575, this count alleging that the defendant came to the plaintiff some time prior to May, 1912, and requested it to assist him in finding and purchasing some vacant property in the city of Atlanta, suitable for subdivision and improvement; that the plaintiff informed him that there was listed with it for sale the property already indicated; and that thereafter the plaintiff, through its agent, made frequent trips from its office, in company with the defendant and showed him this property, explaining fully the terms of the sale and informing him who the owners were and stating the price at which it was listed; that at his instance and request the plaintiff had divers interviews and consultations with him, relating to said property, running through the month of October, 1912, and that at his request the plaintiff assisted him also in disposing of certain promissory notes held by him against other property, which he represented was a necessary prerequisite to his purchase of the property involved; that on or about November 8, 1912, he purchased the said property directly from the owners thereof, for the consideration of $21,000, and that by reason of the plaintiff’s services rendered at his request, in connection with the purchase of said property, he became indebted to the plaintiff in the sum of $575, this being the usual and customary real-estate agent’s commission on said sale.

The defendant interposed a demurrer to each of the counts of the petition, on the ground that neither of them stated facts sufficient to constitute a cause of action. The demurrer was sustained as to the first count and overruled as to the second count; and the defendant filed exceptions pendente lite. TJpon the issue raised upon the second count there were two trials. The first verdict was set aside by the trial judge, and on the second trial the jury returned a verdict against the defendant for $500. He -made a motion for new trial, which was denied, and he excepted, - assigning error upon the refusal to sustain the demurrer to the second count of the petition, and upon the overruling of the motion for new trial.

The record discloses that A. M. Eeid, the plaintiff’s agent in this transaction, testified that he and Williamson made several trips to various parts of the city and looked at various tracts of land, among which was the vacant block belonging to Wylie and Brandon, involved in this litigation. According to Beid’s testimony, Williamson was then informed that this property was listed with the plaintiff for sale, and he’was given the names of the owners and information as to the price and terms. Eeid further testified that he assisted Williamson in figuring out how this property could be advantageously subdivided, and that .the matter of its purchase was thoroughly discussed with Williamson on frequent occasions thereafter at the office of the plaintiff. Eeid further testified that at the request of Williamson he made a trip to West-End, and remained there for an hour or more, for the purpose of aiding in the disposition of certain purchase-money notes held by Williamson, which he represented to be a necessary prerequisite to the purchase of the property involved. . According to Reid’s testimony, Williamson requested him to stay away from the owners, as he preferred to purchase the property himself directly, but that he “would take care of” the plaintiff’s compensation.

According to the evidence for the plaintiff, after being requested by Williamson to let him make the trade direct, and after being promised by him that its compensation would be taken care of, it did not have any interview with the owners or do anything to induce them to sell the property. The evidence of both the owners showed that the plaintiff had done nothing to induce them to make the sale. According to the evidence of Brandon, who was sworn as a witness for the defendant, something was said by Williamson, at the time the trade for the property was closed, about his being entitled to a reduction on the price, equivalent to the agent’s commission. Wylie, the other of the owners,-also stated in his testimony for the defendant that when Williamson and he were looking over the property the statement was made by Williamson that as he was dealing with the owners direct, a sum equal to the commission should be deducted from the price. The owners of the property further testified in behalf of the defendant that the property had not in fact been listed for sale by them with the plaintiff

1. Considering first the exception made to- the overruling of the general demurrer, we are of the opinion that the second count of the petition sets out a valid cause in quantum meruit. Certainly, in the absence of a special demurrer, the services rendered by the plaintiff in assisting the defendant, at his request, in finding and purchasing the property referred to, are adequately set forth in this count; and while' it is true it is not alleged that there was specific agreement on the part of the defendant whereby he obligated himself to pay for such services, yet the rule of law which ordinarily implies such a promise when one accepts the benefit of valuable service rendered by another is sufficient to supply this omission. Civil Code (1910), § 5513. In such a case it is not necessary to allege or prove an express promise. Jackson v. Buice, 132 Ga. 51 (63 S. E. 823); Keener on Quasi-Contracts, 19, 318; Citizens Bank v. Rudisill, 4 Ga. App. 37, 41 (60 S. E. 818); 40 Cyc. 2808; Moses v. Macferlan, 2 Burrow, 1008. The petition having alleged the service by the plaintiff in behalf of the defendant at the request of the latter, we can not hold as a matter of law that any compensation therefor was due by the owners and not by the defendant. But it is insisted by counsel for plaintiff 'in error that the general demurrer to the second count of the petition should have been sustained for the reason that the allegations therein contained set out the existence of such dual, agency on the part of the plaintiff as would forfeit its right to compensation from the defendant principal, in that the petition shows on its face that the property involved had been listed for sale with the plaintiff by the owners thereof. In support of this contention counsel cite Gann v. Zettler, 3 Ga. App. 589 (60 S. E. 283), and Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (60 S. E. 372). We are not prepared to hold, however, that because an owner may have listed property with a broker for sale, the broker is thereby necessarily precluded from entering into an agreement with the purchaser whereby he would be entitled to render and charge for services in connection with a sale of such property; although in such a transaction the utmost loyalty and good faith on his part are required. In the present case the terms on which the owners had listed this property with the broker are not disclosed, and there is no special demurrer to the petition. We can therefore assume, for the purposes of the demurrer, that the property had been listed with the plaintiff by the owners at a stated price and on the express condition that the broker’s compensation should be paid by the purchaser. It can also be said that contracts of dual agency are not void per se, but are void only when the fact that' the agent represented both parties was unknown. The burden of making out a defense to a prima facie liability rests upon the defendant; and where dual agency is relied on, it is necessary for the defendant to allege and prove not only the incompatible relationship, but also that it was unknown. It follows that unless both of these facts appear upon the face of the petition, a demurrer could not raise such a defense. See Red Cypress Lumber Co. v. Perry, 118 Ga. 876 (45 S. E. 674). We think the court properly overruled the demurrer.

2. There was abundant testimony, which the jury were authorized to accept, sustaining each of the material allegations made in the petition. There was no plea setting up the defense of dual agency; and, from the evidence at the trial, the jury were authorized to believe that the plaintiff had exercised good faith towards all parties concerned, and that he violated no duty which he might have owed to either the owner or the purchaser. Furthermore, in this connection, the owners of the property, in testifying for the defendant, denied that the property had been listed for sale with the plaintiff; and the jury, being the exclusive judges of the weight of the evidence, were authorized, even on that theory, to find that the plaintiff violated no duty of loyalty and good faith. Christian v. Macon Ry. &c. Co., 120 Ga. 314, 317 (47 S. E. 923). See also Dacy v. Gay, 16 Ga. 203; Zeigler v. Scott, 10 Ga. 389 (8) (54 Am. D. 395); Bussey v. Moses, 48 Ga. 120; Slaton v. Fowler, 124 Ga. 955 (53 S. E. 567). While we are inclined to think that the verdict was liberal in amount, we do not feel authorized, in view of all the evidence, to disturb the finding of the jury on that ground.

3. The exceptions taken to the charge of the court and to the failure to charge are not borne out by the certified record in the’ case, although counsel for the defendant in error admits the correctness of the excerpts complained of, and the-omission to charge, as excepted to. This case having been twice tried in the court below, we surmise that counsel on both sides base their contentions upon the charge of the court given in the first trial, and not upon the charge given in the trial of the case now before us for review.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8251.
    NATIONAL PENCIL COMPANY v. PINKERTON'S NATIONAL DETECTIVE AGENCY.
    1. Where partners sue in their firm name, the - partnership need not be proved, unless denied in a verified plea. This was true where the original petition alleged that the plaintiff was a corporation, and the partnership was alleged in an amendment to the petition.
    2. It was not error for the court to repel as evidence in this case “certain portions of the argument made by the solicitor-general of the Atlanta circuit on August 23 and 25, 1913, at the trial of Leo M. Frank for murder in Fulton superior court.” The rejected matter was so clearly inadmissible that no discussion is necessary to show that the ground of the motion for a new trial based upon its rejection is absolutely ■ without merit.
    3. The court did not err in excluding the testimony of the witness Pierce, or, in refusing to allow him to answer a certain question propounded to him, the excluded testimony being a conclusion of the witness, and being argumentative in its nature, and irrelevant to the issues in the case.
    4. It was not error, in the absepce of a timely written request, for the court to fail to charge that “it was the duty of the plaintiff in conducting this investigation into the murder of Mary Phagan to act honestly and-in good faith, and to deal honestly and in good faith with the defendant.” The court did instruct the jury as follows: “If you should find that this contract existed, and to the extent-that it existed that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work.” Section 3581 of the Civil Code declares that “an agent for hire is bound to exercise, about the business of his principal, that ordinary care, skill, and diligence required of a bailee for hire.” The court substantially charged in the language of this statute, and under the facts of the case this was sufficient! It is of course implied in every contract that both parties thereto should “act honestly and in good faith,” and it is not necessary for the court to charge such an elementary principle of law, unless particularly requested to do so.
    Decided February 16, 1917.
    Complaint; from Fulton superior court—Judge Ellis. February 4, 1916.

      II. A. Alexander, for plaintiff m error.

      Robert 0. & Philip II. Alston, contra.
   Broyles, P. J.

The Pinkerton’s National Detective Agency brought suit against the National Pencil Company to recover the value of alleged services rendered under a contract entered into between them. In the original petition the plaintiff was alleged to be a corporation, and this allegation was admitted in the defendant’s answer. At the trial term the plaintiff amended its declaration and alleged that it was a partnership. This amendment was allowed by the court, with the consent of the defendant, and the latter made no answer to it. The case was tried and resulted in a verdict for the plaintiff for the full amount sued for.

Counsel for the plaintiff in error strongly insists, before this court, that the verdict is not supported by the evidence, because there was no proof introduced to sustain the allegation of partnership, made in the amendment to the plaintiff’s petition. There were various letter-heads and bill-heads of the plaintiff which were put in evidence, and also attached to the original petition, upon which appear the following words: “Pinkerton’s National Detective Agency; William A. Pinkerton, Chicago, Allen Pinkerton, New York, principals.” Under the ruling in American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147 (74 S. E. 1084), these letter-heads might possibly be considered as some evidence of the partnership. Conceding, however, that this evidence was insufficient to show the fact of partnership, we do not think that a reversal of the judgment must result. Section 3166 of the Civil Code provides that “partners suing or being sued in their firm name, the partnership need not be proved unless denied by the defendant, upon oath, on plea in abatement filed.” Counsel for the plaintiff in error contends, however, that this section of the code applies only to a case where the partnership was alleged in the original petition, and he insists that the very language of the section designating the plea of “no partnership” as a “plea in abatement” shows that it was so intended. It is true that ordinarily a plea in abatement must be filed at the first term, but in Long v. McDonald, 39 Ga. 186, it was held that an answer denying the existence of a partnership was a plea in bar, and, although sworn to, was not a dilatory plea, which is required to be filed at the first term. This ruling was expressly approved in Solomon v. Creech, 82 Ga. 445 (9 S. E. 165). See also Crockett v. Garrard, 4 Ga. App. 360 (61 S. E. 552); Dobbs v. Mixon, 11 Ga. App. 789 (76 S. E. 166). Under these decisions it would seem that the defendant had a right to file his plea of no partnership at the trial term, especially since the fact of partnership had not been alleged by the plaintiff until that term. It is true that in Crockett v. Garrard, supra, Judge Powell criticizes the decisions in the Long and Solomon cases, doubting the applicability of 'the provisions of section 3166, supra, to the particular facts of those cases, but he distinctly says: “The criticism we are now about to make is not that the actual principle applied in these cases is incorrect.” In our judgment, the instant case comes within the rulings of the Supreme Court in the Long and Solomon cases, supra. It follows that if the defendant had a right to file his plea of “no partnership” at the trial term, and he failed to do so, he will not be permitted thereafter to complain that the fact of the plaintiff’s partnership was not shown by the proof.

We are aware that the Supreme Court, in several decisions, has held that the provisions of section 5539 of the Civil Code, requiring a defendant to admit, deny, or explain why he does not admit or deny each paragraph, under penalty of having the allegations in the petition treated as prima facie true, relate to the answer to the original petition only, and not to the answer to an amendment to the petition, and that the failure of a defendant to answer an amendment does not authorize the court or the jury to treat the allegations in the amendment as being admitted. Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Watson v. Barnes, 125 Ga. 733 (54 S. E. 723); Brown v. Atlanta &c. Ry. Co., 131 Ga. 259 (62 S. E. 186); Brown v. Tomberlin, 137 Ga. 596 (73 S. E. 947). Not one of these cases, however, involves the question now under discussion, and the Supreme Court stated merely the general rule as to a failure to answer an amendment to a petition. In a ease like the instant one we think that the provisions of sections 3166 and 5539 of the Civil Code should be construed together, and that it should be held that a failure to deny the plaintiff’s allegation of- partnership, although made in an amendment to the petition, amounts to an admission of its truth. To hold otherwise would in our judgment be contrary to the provisions of section 3166 of the Civil Code. That section is derived from the act of 1841 (Cobb’s Digest, 590), and the preamble to that act plainly shows that it was the intention of the legislature in passing it to abolish the harsh technical rule that theretofore had been forcing the courts of this State to hold that partners suing as plaintiffs could not recover unless upon the trial they adduced proof of their partnership, even where the fact of partnership was - not denied. The spirit of this legislation would be largely destroyed,' and in many cases the intent of the legislature would be absolutely defeated, if it were now held that partners suing as plaintiffs, who in their original petition inadvertently characterized their firm as a corporation, but who by amendment corrected this misnomer and alleged their partnership (such amendment being consented to by the defendant, and the allegation of partnership therein made not being denied by it), could not recover unless they adduced proof of their partnership. We are therefore clearly of the opinion that in such a case it should be held that the general rule, that the failure of a defendant to answer an amendment to a petition can not be treated as an admission of the truth of the allegations made therein, does not apply to an amendment by plaintiff partners alleging the existence of their partnership. In other words, it is evident that such an amendment is an exception to the general rule just stated, and that in a case like the one at bar, the failure of the defendant to deny the existence of the partnership amounts to an admission of the same. This ruling is in line with those of other judicatories. “Matter added by way of amendment, to which the defendant makes no opposition, must be deemed to be admitted where the adverse party omits to move to amend his answer' so as to deny it.” 1 Standard Ene. Proc. 930 (E); McCloskey v. Goldman, 62 Misc. 452 (115 N. Y. Supp. 189). However, if this holding be an extension of the rule hitherto of force in this State, we think it a legitimate and just one, and one necessary under the exigencies of the case. Hnder the facts of the instant ease it could not possibly make any difference to the defendant whether the plaintiff was a partnership or a corporation. This was not even a collateral issue in the case, and has not the slightest bearing upon its merits, there being no contention or intimation that as a matter of fact the plaintiff was not a legal partnership with the right to sue and to be sued. The cause was fairly tried; the verdict is amply supported by the evidence; no error of law appears, and we see no reason why the judgment of the lower court should be reversed.

Judgment affirmed.

Jenkins and Bloodworth, JJ.; concur.


text:
    8300.
    Wilk v. Citizens and Southern Bank.
   Broyles, P. J.

1. This was a suit on the defendant’s note to a bank which by indorsement had transferred it to the plaintiff bank. The evidence authorized a finding that the note was so indorsed and transferred before its maturity, and remained thereafter in the possession of the plaintiff; that the plaintiff was a bona fide holder of the note for value, and that the defendant’s plea of payment was not sustained by the proof. Accordingly the verdict for the plaintiff for the full amount sued for was supported by the evidence.

2. Counsel for the plaintiff in error contend in their brief that the transaction under which the note was transferred to- the plaintiff bank was void under the provisions of section 2360 of the Civil Code of 1910, as to fraudulent transfers made by a bank in contemplation of or after insolvency. No such issue was made by the pleadings, nor does the record show that it was raised upon the trial of the case or in the motion for a new trial. This question therefore will not be considered by this court.

Decided February 16, 1917.

Complaint; from Bichmond superior court—Judge Hammond. October 13, 1915.

J. S. & N. M. Reynolds, Salem Dutcher, for plaintiff in error.

Alexander & Lee, Wright & Wright, contra.

3. There is no complaint of any error of law, other than the complaint that the verdict is contrary to the law. What purports to be an amendment to the motion for a new trial, adding a seventh ground, appears in the record. It specifies, as a ground for a new trial, failure on the part of the court to charge the law relative to a bona fide holder of a note, irrespective of any request of the defendant so to charge. This purported amendment is not signed by the defendant or his counsel, is not approved by the court, and in the bill of exceptions is not specified as a part of the record. Nor does the bill of exceptions specify the charge of the court as a material part of the record, and the charge has not been sent up with the record. In addition, this purported amendment to the motion for a new trial is not referred to in the brief of counsel for the plaintiff in error, and, even if it could otherwise be considered, is therefore treated as abandoned.

4. The court did not err in overruling the. motion for a new trial.

Judgment affirmed.

Jenhins and Bloockvorth, JJ., concur.


text:
    8303.
    Morrison v. Citizens and Southern Bank.
   Broyles, P. J.

1. Before one who is sued as the maker of a promissory note and who appears as such on the face of the note can avail himself of the provisions of section 3556 of the Civil Code of 1910 which allow a defendant, under such circumstances, either before or after the judgment, to prove by parol that he was in reality a surety only, he must give the notice required by the statute, and his plea must contain an appropriate prayer for independent affirmative relief. Carlton v. White, 99 Ga. 384 (3). In the instant case, even if the prayer in the defendant’s plea was sufficient to allow him to prove his suretyship by parol, it does not appear that he had notified the alleged principal of his intention to make such proof. In the absence of such notice, parol evidence as to the suretyship was inadmissible, and the court did not err in refusing to allow the defendant to establish this fact before the jury.

2. There is no merit in the contention that the court erred in not submitting to the jury the question whether the Irish-American Bank had waived protest on the note sued upon; it appearing that no notice of non-payment or of protest for non-payment had been given that bank. Notice of non-payment or protest is not necessary to bind a principal on a note. It is given only for the purpose of fixing liability upon an indorser or surety. Pritchard v. Smith, 77 Ga. 463, 466. In the instant ease the defendant’s contention is that the Irish-American Bank was not an indorser of the note, but was the real maker and principal of the same. If this be true, the Irish-American Bank was ultimately liable on the note as' the maker, and no protest for non-payment was necessary to bind it. Under such circumstances the defendant will not be heard to complain that no notice of non-payment or protest for non-payment had been given the Irish-American Bank, or that it .did not waive such notice.

3. The facts of this case, as disclosed by the record, show that the provisions of section 2360 of the Civil Code of 1910 are not applicable thereto. This section provides that “all-conveyances, assignments, transfers of stocks, or other contracts made by a bank in contemplation of insolvency, or after insolvency, except for the benefit of all creditors and stockholders, shall be fraudulent and void, unless made to an innocent purchaser for value without notice or knowledge of the condition of the bank.” Under this statute an unlawful preference arises only when the transfer is made by a bank, insolvent at the time or in contemplation of insolvency, for an antecedent debt. Booth v. Atlanta Clearing House Asso., 132 Ga. 100; 10 Cyc. 295. In the instant case the transfer of the collateral notes, of which the note sued upon was a part, from the Irish-American Bank to the plaintiff bank, was to secure a present,, and not an antecedent, debt. See Toomey v. Citizens & Southern Bank, 19 Ga. App. 271.

(a) Even if the transfer of the collateral security from the Irish-American Bank to the plaintiff bank could be held illegal, the former bank, or its receiver, could not demand the return of its collateral from the plaintiff bank without restoring the latter to its original condition, which would mean the repayment of the debt, for the security of which the collaterals were transferred. Booth v. Atlanta Clearing House Asso., supra.

4. There is no merit in the complaint that the court did not require the plaintiff bank to account for the other collateral security pledged to it by - the Irish-American Bank. There was no evidence which showed that the debt of the latter bank to the plaintiff had been paid. “If a promissory note, before its maturity, is. pledged as collateral security for a particular debt, and such debt is afterwards paid, the holder of the collateral note has then no right to collect it, if the person liable for its payment has already paid it to the pledgor who was the original payee; but so long as any portion of the debt secured by the collateral remains unpaid., the holder of the latter may collect the same, or at least enough thereof to satisfy whatever may remain due on the claim thereby secured” (italics ours). Bank of University v. Tuck, 96 Ga. 456 (6). “Where the holder of a bill or note has acquired it as collateral security for a debt and is entitled to recover thereon, the extent of his recovery is limited to the amount of that debt, if there be a valid defense against the party transferring it to him, . . but in the absence of proof to the contrary, the holder of an accommodation paper, transferred to him as collateral for the debt of the person who transferred it, will be deemed to have advanced the full amount of the paper, or to hold against his debtor a claim equal to or in excess of the paper.” Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170 (4). See also, to the same effect, Linderman v. Atkins, 143 Ga. 366 (3).

Decided February 16, 1917.

Complaint; from Eichmond superior court—Judge H. C. Hammond. November 26, 1915.

William K. Miller, for plaintiff in error.

Boykin Wright, Boykin Wright Jr., Alexander & Lee, contra.

5. The remaining grounds of the motion for a new trial are not' argued in the brief of counsel for the plaintiff in error, and are therefore treated as abandoned.

6. The court did not err in directing a verdict for the plaintiff, or in 'thereafter refusing to grant a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Wade, C. J.

text:
    6388.
    Cornelisen v. City of Atlanta.
    Decided February 27, 1917.
   Wade, C. J.

“Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park. . . But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.” Cornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415).

{a) It being apparent, from the allegations in the plaintiff’s petition, that the “public recreation park,” therein asserted to be “owned and controlled” by the City of Atlanta at the time of the injury complained of, was maintained “primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large,” no municipal liability attached on account of the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. Considering the allegations in the petition as made, it is plain that any profit resulting to the city from the operation or management of the- park was purely incidental.

(6) The trial court therefore did not err in sustaining the demurrer and dismissing the case as to the City of Atlanta.

Judgment affirmed.

George and Luke, JJ., concur.

Action for damages; from city court of Atlanta—Judge Eeid. January 16, 1915.

This action was against the City of Atlanta and J. Billot jointly. It was dismissed as to the city, on general demurrer, and the plaintiff brought the case to the Court of Appeals on exceptions to that judgment. Certified questions as to the law involved in the case were submitted by this court to the Supreme Court, and the answer of the latter court appears in 146 Ga. 416 (91 S. E. 415). The action was for damages on account of injuries received by the plaintiff on diving into a swimming and bathing place in a public park, where his head struck a post, the top of which was below the surface of the water. In the petition it is alleged: that the park is “a public recreation park near the southern side of the City of Atlanta limits, known as Lakewood;” that at the time mentioned in the petition it was owned and controlled by the city, and the keeper and custodian of the park was the defendant Billot, who was in joint control and custody of the park and the lake therein with the city, and was not an employee or servant of the city; that the defendants were keeping and maintaining a part of the lake as a public swimming and bathing place, and were impliedly and expressly inviting the public to bathe and swim therein, and furnishing bathing suits and places in which to put them on, and that the plaintiff paid to the keeper of the park the usual fees and charges, attired himself in a bathing suit, and, with the knowledge and consent of the person in charge of the bathing place, walked on a platform to that place and dived into the water, where he received the injuries complained of. It is alleged that the defendants were jointly and severally negligent in allowing the post to remain in the water at that place, in holding out that part of the lake as a suitable bathing place, and in failing to put up a sign or give warning as to the danger there.

Dean B. Ryman, George H. Gillon, for plaintiff,

cited: Mayor &c. of Savannah v. Cullens, 38 Ga. 334; 28 Cyc. 1263; Huey v. Atlanta, 8 Ga. App. 597; Adepe v. Thomasville, 9 Ga. App. 880; City Council of Augusta v. Mackey, 113 Ga. 64; Brown v. Atlanta, 66 Ga. 71; City Council of Augusta v. Hudson, 88 Ga. 599; City Council of Augusta v. Lombard, 99 Ga. 282; note in 1 L. R. A. (N. S.) 665; Civil Code (1910), § 3694; White v. Montgomery, 58 Ga. 204; Monahan v. National Realty Co., 4 Ga. App. 680.

J. L. Mayson, W. D. Bilis Jr., for defendant,

cited: Blair v. Granger, 24 R. I. 17 (51 Atl. 1042); Board of Park Com’rs v. Prinz, 127 Ky. 460 (105 S. W. 948); Clark v. Waltham, 128 Mass. 567; Steele v. Boston; 128 Mass. 583; Russell v. Tacoma, 8 Wash. 156 (40 Am. St. R. 895, 35 Pac. 605); McGraw v. District of Columbia, 3 App. D. C. (25 L. R. A. 691); Shauf’s adm’r v. Paducah, (Ky.) 6 A. N. R. 73; Watson v. Atlanta, 136 Ga. 370; Love v. Atlanta, 95 Ga. 129; Nisbet v. Atlanta, 97 Ga. 650; Bartlett v. Columbus, 101 Ga. 300; Wyatt v. Rome, 105 Ga. 312; Wright v. Augusta, 78 Ga. 241.


author: Luke, J.

text:
    7821.
    Belcher v. The State.
    Decided March 13, 1917.
    Indictment for felony; from Dougherty superior court—Judge Cox. August 21, 1916.

      Perry & Williamson, Pottle & Hof may er, for plaintiff in error.

      B. G. Bell, solicitor-general, F. A. Hooper, H. A. Peacoclc, Oruger Westbrook, contra.
   Luke, J.

1. Offenses differing from each other may be included in the-same indictment, provided they are of the same nature and differ only in degree. Hoskins v. State, 11 Ga. 92; Gilbert v. State, 65 Ga. 449; Tooke v. State, 4 Ga. App. 495 (61 S. E. 917).

2. The offense of willfully and maliciously attempting to destroy or injure a dwelling-house, or store-house, etc., with dynamite or other explosive substance (Penal Code of 1910, § 787), and the offense of having in “possession in the day or nighttime any engine, machine, jimmy, tool, false key, pick-lock, bit, nippers, nitroglycerine, dynamite cap, dynamite, or other explosive, fuse, steel wedges, drills, tap-pins, or other implements or things adapted, designed, or commonly used for the commission of burglary, larceny, safe-cracking, or other crime, with intent to use or employ or allow the same to be used or employed in the commission of a crime, or knowing that the same are intended to be so used”.(Acts 1910, p. 136; Park’s Penal Code, § 183 (a)) are-not such kindred crimes that the two offenses may be joined in the same indictment.

3. Where in the same indictment the grand jury, in one count, charged the defendant with a violation of § 787 of the Penal Code, supra, and in another count charged him with the crime defined in the act of 1910, supra, there was a misjoinder of counts; and the court erred in failing to sustain a proper demurrer thereto.

Judgment reversed.

Wade, G. J„ and George, J., eoneúr.


text:
    7877.
    WHITE v. THE STATE.
    The evidence authorized the conviction, both upon the count charging the sale of intoxicating liquors and upon the count charging that the accused kept such liquors on hand at his place of business.
    Decided March 13, 1917.
    Indictment for sale of liquor; from Tattnall superior court— Judge Sheppard. August 31, 1916.

      H. H. Elders, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   Luke, J.

The defendant in this case was indicted in two counts, charging, that on January 3, 1916, he did sell intoxicating liquors, and that he did keep on hand at his place of business intoxicating liquors; and the jury found him guilty on both counts. The- evidence clearly showed his guilt of selling liquor, and the jury were authorized to find that the room in which it was shown he had liquors stored was his place of business. The only assignment of error was that the verdict was contrary to the evidence. Where there is evidence, adduced upon the trial of the case, upon which the jury could have based the verdict found, this court will not interfere. Accordingly the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and George, J., concur.


author: George, J.

text:
    7879.
    Moye v. The State.
   George, J.

1. An accusation charging the offense of cheating and swindling by the use of deceitful means and artful practices, and containing the averments that the defendant did falsely represent to the prosecutor that one Gay had promised to sign a certain note with the defendant “as security,” payable to the Merchants Bank, of McRae, Georgia, in the sum of $55, and that one McGlohorn had also promised to sign said notes, “when in truth and in fact the said Clem Gay and Jesse McGlohorn had not promised to sign said note, and the said W. L. Moye [the defendant] knew that said representation was false, and he made said statement with the purpose of deceiving the said W. N. Watson [the prosecutor], and with the intent to defraud the said W. N. Watson, and for the purpose of obtaining the said W. 1ST. Watson to sign said note, and the said W. N. Watson was deceived by said false statement and was induced to sign said note upon the strength of said statement, and was injured and defrauded by the signing of said note in the sum of $71.21,” and that the prosecutor did not suffer any loss or injury until the 10th day of May, 1916, when he was compelled to pay off a judgment which was obtained against him on said note, is not subject to general demurrer on the ground that it does not charge the commission of any offense, nor to special demurrer on the ground that it does not appear whether the note was signed by the prosecutor as principal or as security, nor whether any money or any thing of value was received by the defendant on said note, nor that the money, if any was obtained by virtue of the execution of the note, was not paid to the prosecutor, Watson. The ground of the special demurrer that the alleged statement of the defendant that he would execute a mortgage on a certain mule merely constituted a future promise is well taken, but since this allegation appears to have been abandoned by the State, no evidence being offered in its support, the error in overruling this ground was harmless.

Decided March 13, 1917.

Accusation of misdemeanor; from city court of Dublin—Judge Hicks. July 17, 1916.

Larsen & Crockett, Chappell & Burch, for plaintiff in error.

8. P. New, solicitor, contra.

2. The evidence is sufficient to show the guilt. of the accused beyond a reasonable doubt, and there was no error in overruling the motion for a new trial, based upon the general grounds and upon the ground that the court erred in overruling a motion for continuance. The evidence of the absent witness, as it appears in the record, was not so material on any issue in the- ease as to require a continuance.

Judgment affirmed.

Wade, O. J., and Luloe, J., coneur.


text:
    7880.
    Stuckey v. The State.
    Decided March 13, 1917.
    Accusation of misdemeanor; from city court of Dublin—Judge Hicks. July 17, 1916.

      J. 8. Adams, for plaintiff in error. 8. P. New, solicitor, contra.
   Luke, J.

1. Where one is indicted under section 715 of the Penal Code of 1910, it is incumbent on the State to prove the contract as alleged, and to prove such a state of facts as will authorize the jury to find that at the time he procured the thing of .value upon the contract, he did not intend to perform the services which he contracted to perform, but then and there had the intent to defraud.

2. This ease is controlled by the decisions in the eases of Johnson v. State, 125 Ga. 243 (54 S. E. 184); Green v. State, 6 Ga. App. 324 (64 S. E. 1121); Durham v. State, 17 Ga. App. 810 (88 S. E. 594).

3. The evidence did not authorize the verdict of guilty, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    7893.
    BENNETT v. THE STATE.
    1. In a prosecution for homicide, where the evidence for the State makes a case of murder, and the evidence for the defendant, including his statement to the court and jury, a case of self-defense, and where neither the evidence nor his statement tends to show that he provoked the difficulty and brought upon himself the necessity to kill the deceased, it is error to charge the jury as follows: “To constitute justifiable homicide, the slayer must not have brought upon himself the necessity to kill the deceased. If a person provoke a difficulty by his own fault and bring upon himself the necessity to kill another person, such killing would not be justifiable homicide. If one provokes a difficulty and makes no effort to decline it, but kills his adversary in the contest, it is not justifiable homicide.”
    2. The last sentence in the charge quoted in the foregoing headnote, to wit, “if one provokes a difficulty and makes no effort to decline it, but kills his adversary in the contest, it is not justifiable homicide,” considered in connection with the context, is not error, and would not in this case require the grant of a new trial if there were evidence to warrant the whole charge upon this subject, a portion only of which is quoted in the first headnote. In a proper case the sentence here quoted should be qualified by a further statement to the effect that if a person provokes a difficulty and the provocation amounts to no more than a mere trespass, it would not put him in the wrong in resisting or defending himself against a felonious attack on account of such provocation.
    3. Except as indicated above, the trial was free from error.
    Decided March 13, 1917.
    Conviction of manslaughter; from Montgomery superior court— Judge Graham. September 16, 1916.

      J. B. Geiger, A. G. Saffold, Bschol Graham, for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   George, J.

The plaintiff in error was indicted for the offense of murder, and was found guilty of voluntary manslaughter. The case is before this court on exceptions to a judgment denying a motion for a new trial. The killing was the result of a dispute over the possession of a cow and a calf claimed both by the deceased and by his daughter, the wife of the defendant. The deceased went to the home of the defendant for the purpose of carrying away the cow and calf. The wife of the defendant'protested, and an altercation ensued, during which the defendant shot and killed the deceased. The evidence for the State shows a killing without legal justification, while the evidence for the defendant is to the effect that the cow and calf were being taken by force, against the consent of the wife of the defendant, and that at the time of the homicide the deceased was attempting to kill the defendant by shooting him with a pistol. On this point the. evidence for the State is in sharp conflict with the evidence for the defendant and the defendant’s statement. Considering the testimony for the State, if the defendant provoked the difficulty resulting in the homicide, he immediately followed the provocation given by taking the life of the deceased; the deceased made no effort whatever to resent any provocation offered him by the defendant, and under no view of the State’s ease was there any necessity for the killing by the defendant. On this point the evidence of the only eye-witness introduced by the State is as follows: “I told David John [the defendant] two or three times to put the gun down, and he threw the gun up on me and said, ‘You take another step, damn you, I’ll shoot you.’ I didn’t have a thing in the world in my hand at that time. David John made about two more steps toward me and I told him to stop. Mr. Fountain [the deceased] stopped, and by the time he turned to him that way David John shot him. . . Mr. Fountain was not doing a thing when David John shot him, and didn’t have' anything i'n his hand but the whip he was driving the cows with. „Mr. Fountain never said anything to David John before David John shot him. David John was about fifteen or twenty steps from Mr. Fountain when he shot him.” Considering the evidence for the defendant, together with his statement, he provoked no difficulty whatever; the deceased persisted in carrying away the cow and calf; the 'defendant’s wife called for the gun for the purpose of killing the cow, in order to prevent her father from carrying it away; the defendant did not wish his wife to have the gun, and picked it up himself. As to what occurred after he picked up the gun, one of the witnesses sworn in his behalf (whose evidence fairly illustrates the whole of the testimony in his behalf upon the point) testified as follows: “He commenced backing from Mr. Sharpe [the witness for the State], and Mr. Sharpe was going on after David John with his knife in his hand. . . I didn’t understand anything that was said between Mr. Sharpe and David John. David John went clear around the cowpen to the fence before he stopped, and I didn’t hear him say anything to Mr. Sharpe until he stopped, and then he said to Mr. Sharpe not to come any further or put his hands on him, if he did he would kill him. At this time Mr. Fountain was on the outside of the fence and outside of the field, right even with them. . . When David John told Mr. Sharpe to stop and not to put his hands on him, if he hid he would kill him, Mr. Fountain said, ‘Get out of the Way, Fll fix the God damn son of a bitch,’ and Mr. Fountain threw up his pistol with both hands this way (indicating), and then David John shot him. David John swung the gun around before he shot. As soon as Mr. Fountain spoke ■and cursed, the gun fired, and I thought all of them shot. I thought Mr. Fountain shot too.” On this point the defendant’s statement at the trial was as follows: “I said, ‘Mr. Sharpe, if you come any further with that knife I will kill you.’ '. . I heard a stick break—seemed like it was right behind me. Just as I spoke to Mr. Sharpe Mr. Fountain said: ‘Move out of the way. I’ll fix the God damn son of a bitch.’ As I looked around, he was presenting a pistol. Looked like I could have stuck my finger down the barrel of it. I was scared. . . I knew that Mr. Fountain would kill me. . . I-threw my eyes on him and pulled the gun that way.”

1. From the foregoing it is apparent that the only difficulty provoked, from the standpoint of the. State, was the difficulty commenced by the defendant, and which culminated in the unlawful killing of the deceased at a time when the deceased was offering absolutely no resistance to the defendant. From the standpoint of the defendant he was acting, throughout the transaction, in self-defense. The charge quoted above in the first headnote is wholly unwarranted by the facts in the case. Though abstractly correct, a charge not warranted by the evidence should not be given; and this particular charge was harmful to the defendant, under the facts of the case. Teasley v. State, 104 Ga. 738-743 (30 S. E. 938); Books v. State, 119 Ga. 431 (46 S. E. 631); Strickland v. State, 8 Ga. App. 421 (4), 433 (69 S. E. 313).

3. As stated above, the sentence from the charge of the court quoted in the second headnote, considered as an abstract proposition, was not error in this case. Generally, if one provoke a difficulty, he does not thereby necessarily lose the right to defend himself. “Where a battery with a weapon likely to produce death was being committed by the deceased upon the slayer when the mortal blow was given, the fact that he provoked the battery by the use of opprobrious words would not put the slayer in the wrong for resisting it so far as was necessary to his defense.” Boatright v. State, 89 Ga. 140 (15 S. E. 21). “One who provokes a difficulty may yet defend himself against violence on the part of the one provoked, if the violence be disproportionate to the seriousness of the provocation or greater in degree than the law recognizes as justifiable under the circumstances.” Sams v. State, 124 Ga. 25 (52 S. E. 18). In the case last cited it was said: “Undoubtedly, if one provoke a difficulty, and the person provoked resent the affront offered in such a manner and to such an extent as the law recognizes as reasonable and justifiable, the other party to the difficulty will not be justified in repelling by force an assault for which he was directly responsible. Thus, if A draw a knife and advance in a threatening manner upon B, the fact that B, upon such provocation, drew a pistol and fired upon A would not justify A in killing or wounding B. But if the resentment of the party provoked is disproportionate to the seriousness of the provocation, the same rule would not apply. It must be such resentment as a reasonable man would indulge; and if it surpass that the other party, even though he may have provoked the. difficulty, would have the right to defend himself against threatened injury.” The language used by the trial judge both preceding and following the sentence from the charge quoted in the headnote states an abstractly correct principle of law. However, for the reasons stated' in the first part of this opinion, we do not think that the giving of this abstract principle to the jury was authorized by any of the evidence, or by the defendant’s statement.

3. Since this case must be retried, we have carefully examined the other assignments of error. None of them are meritorious. It is true that the trial judge, in charging section 72 of the Penal Code of 1910, instructed the jury that the “serious injury” referred to in that section meant a felony. This, under the decision in Freeney v. State, 129 Ga. 759 (4), 766 (59 S. E. 788), was error. The able trial judge, in overruling the motion for a new trial, admits his error. We agree with him, however, that, under the facts of this case, the error was entirely harmless. Indeed, the opinion in the Freeney ease recognizes that, the “serious injury” must be grave in its character and consequences. The decision in Nix v. State, 120 Ga. 162 (47 S. E. 516), is authority for the proposition. that “a case might arise where a trespass upon property would be of such a grave nature as to amount to a serious injury within the meaning of this section [§ 72]; in other words, that a trespass in its nature, gravity, and consequences would be such that the law might authorize the taking of human life to prevent its commission. But such a condition of affairs would be of rare occurrence in the transaction of human affairs, and certainly would not arise out of one of the ordinary and every-day quarrels about property rights.” The record in this case discloses an ordinary and every-day quarrel about property rights, and, moreover, about the rights of members of the same family. In the Crawford case, 90 Ga. 710, the words “serious injury,” in section 72 of the Penal Code, are declared to have “no application where the property attacked or invaded is so inconsiderable that the injury intended is not serious but slight.” To the same effect is Pound v. State, 43 Ga. 88 (4, 5), where it is pointed out that the property on which the personal injury was intended or might accrue must be at the dwelling; “the household goods so to speak are regarded with peculiar sanctity in the protection of the law.” This dictum is doubted in the Crawford case, supra, but is expressly approved in the Freeney case, supra. The serious personal injury referred to in this section of the code must be an injury which in its nature, character, or effect “is traveling to a felony.” A killing to prevent a taking of slight moment or importance can not be justified, though the taking may technically amount to robbery. When the specific defense relied upon by the defendant in the case at bar is considered, the charge of the court was as favorable to him as the facts warranted. For the reasons stated in the opinion, the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, C. J., and Lulce, J., concur.


text:
    7923.
    Dennis v. The State.
   Luke, J.

1. The constitution of this State requires that all criminal cases shall be tried in the county in which the crime is committed, and the venue must be proved beyond a reasonable doubt. Murphy v. State, 121 Ga. 142 (48 S. E. 909), Cooper v. State, 106 Ga. 119 (32 S. E. 23) ; Smith v. State, 2 Ga. App. 413 (58 S. E. 549).

2. In this, case the question as to failure to prove venue is specifically raised in the motion for a new trial, as provided by the act of 1911 (Acts 1911, p. 150), and is argued in the brief of counsel for the plaintiff in error; and there being in the brief of evidence no proof of venue, this court must hold that the trial judge erred in overruling the motion for a new trial. It is unnecessary to pass upon the other assignments of error. Moye v. State, 65 Ga. 754; Wade v. State, 11 Ga. App. 411 (75 S. E. 494).

Decided March 13, 1917.

Conviction of assault with intent to rape; from Morgan superior court—Judge Park. October 18, 1916.

A. G. Foster, F. B. Lambert, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.

Judgment reversed.

Wade, G. J., and George, J., ooneur.


text:
    7931.
    Johnson v. The State.
    Decided March 13, 1917.
    Indictment for manufacture of liquor; from Spalding superior court—Judge Searcy.

      W. II. Connor, B. F. McKnight, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Luke, J.

The evidence as to the guilt of the accused was conflicting, but the jury trying the case were properly instructed by the court, and returned a verdict of guilty. The newly discovered evidence was cumulative in its character, and, the trial judge having approved the verdict, and there being some evidence to authorize the conviction, this court will not disturb the judgment overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and George, J., eonour.


text:
    7935.
    Brown v. City of Atlanta.
    Decided March 13, 1917.
    Certiorari; from Fulton superior court'—Judge Bell. October 2, 1916.
    Morris Machs, Albert Kemper, Samuel A. Massell, for plaintiff in error. J. L-. May son, 8. D. Hewlett, contra.
   Luke, J.

The evidence did not authorize the conviction of the defendant in the recorder’s court, on the charge of keeping liquor on hand for unlawful sale. Accordingly the superior-court judge erred in overruling the certiorari.

Judgment reversed.

Wade, G. J., and George, J., concur.


author: Ltjke, J.

text:
    7948.
    Hunt v. The State.
    Decided March 13, 1917.
    Indictment for misdemeanor; from city court of Macon—Judge Guerry. October 16, 1916.

      W. A. McClellan, for plaintiff in error. John P. Ross, solicitor-general, Will Gunn, solicitor, W. D. McNeil, contra.
   Ltjke, J.

1. Upon the trial of one charged with a violation of section 416 of the Penal Code (1910) it was not error for the court to refuse to charge the jury:’ “If you believe, from the evidence, that this defendant was the proprietor of the Dempsey barber-shop in this county, and that between the 20th day of July, 1915, and the 16th day of April, 1916, he, at said barber-shop, by himself or agents, furnished shaves and hair-cuts to the guests of the Dempsey Hotel and others on the Sabbath, it would be a question of fact for you to determine whether, under all the circumstances of the case, the furnishing by the defendant of such was a work of necessity or charity. The word ‘necessity,’ as used in -the statute, means not- a physical and absolute necessity, but a moral fitness or propriety of the work and labor done, under the circumstances of each particular case.” McCain v. State, 2 Ga. App. 389 (58 S. E. 550).

2. On review this court refuses to overrule or modify the decision of this court in McCain v. State, supra.

3. The verdict having been demanded by the evidence, and the assignments of error being without merit, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., and George, J., concur.


text:
    7951.
    KENNEDY v. THE STATE.
    Where an indictment for trespass charged that the offense was committed by moving a dwelling-house from described land of a certain person, and the evidence, while showing the removal of a dwelling-house by the accused from land belonging to that person, failed to show that the house was taken from the particular land described in the indictment, the conviction of the accused was not authorized by the evidence.
    Decided March 13, 1917.
    Indictment for trespass; from Evans superior court—Judge Sheppard. October 9, 1916.

      W. G. Warnell, Wade H. Bruton, for plaintiff in error.

      W. F. Slater, solicitor-general, P. M. Anderson, contra.
   George, J.

In Heard v. State, 4 Ga. App. 572 (61 S. E. 1055), it is held: “An accusation of trespass, in wbicb the defendant is charged with passing over the lands of another after being forbidden by the owner, in violation of tbe Penal Code, § 220 [Penal Code ox 1910, § 217], is insufficient to withstand a timely definite special demurrer, where the only description of the lands trespassed upon is ‘a certain field the cultivated land of [the prosecutor] at the tipie being held under a contract of purchase/ though previous statements in the accusation locate the land as being in the county of the prosecution. In such an accusation the description of the land should be definite.” In the instant case the indictment for criminal trespass is under section 216 (2) of the Penal Code 'of 1910, and sufficiently describes the land, and in such manner as to make the descriptive 'terms thereof a material allegation in the indictment, from which a certain dwelling-house is alleged to have been removed by the defendant without authority and against the will of the prosecutor. The evidence, while showing the removal of a dwelling-house by the defendant from land belonging to the prosecutor and located in the county of the prosecution, does not show that the house was taken from the particular land described in the indictment. The evidence, therefore, does not sustain the allegations of the indictment in this respect, and the defendant should have been granted a new trial. Moreover, the ease against the defendant is a doubtful one, under the decision in Shrouder v. State, 121 Ga. 615 (49 S. E. 702).

Judgment reversed.

Wade, Q. J., and Lulce, J., concur.


text:
    7961.
    Porter v. The State.
   Luke, J.

All who procure, counsel, command, aid, or abet the commission of a misdemeanor are treated by the law as principal offenders; and-under an indictment for driving an automobile of another without the consent of the owner, a passenger who cranks the car up and tells another to drive it, and knows that it is being driven without the owner’s consent, in violation of law, may be convicted. Accordingly, in this ease the court did not err in charging the jury as follows: “I charge you further, that if this defendant entered into an understanding or agreement with another or with others to take this car, and under that agreement they took it and drove it without the consent and without the authority of the owner, he would be guilty. It does not make any difference whether he actually drove the car himself or not; but if he was present and aided or abetted or directed or procured another to run it, then the other’s act would be his, and he would be liable, although he didn’t actually operate the car himself; but if he procured another to run it, or operate it, then the other's act would become his act and both would be jointly liable as principals in this case.”

Decided March 13, 1917.

Accusation of misdemeanor; from city court of Madison—Judge Anderson. October. 23, 1916.

Williford & Lambert, for |3laintiff in error.

A. Cr. Foster, solicitor, contra.

Judgment affirmed.

Wade, G. J., and George, J., concur.


text:
    8013.
    Lott v. The State.
    Decided March 13, 1917.
    Conviction of manslaughter; from Coffee superior court—Judge Summer all. December 1, 1916.

      W. 0.. Bryan, Lankford & Moore, for plaintiff in error.

      A. V. Sellers, solicitor-general, M. D. Dickerson, McDonald & Willingham, contra.
   Luke, J.

At the February term, 1916, of the superior court, Cora Lott was tried on an indictment charging her with murder, and as asserted by her in her motion for a new trial, and in her bill of exceptions in this court (Lott v. State, 18 Ga. App. 747, 90 S. E. 727), the jury convicted her of the offense of voluntary manslaughter, and she. was sentenced accordingly. The conviction was sustained by this court, and on December 1, 1916, she presented to the judge of the superior court a petition to vacate the verdict and sentence, on the ground that the jury failed to convict her of any offense, their verdict finding her guilty of “vonuntory” manslaughter. Held: The petition was clearly without merit, and the court committed no error in refusing to entertain it.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8014.
    McCarthy v. The State.
    Decided March 13, 1917.
   Wade, C. J.

1. The evidence accepted as credible by the court, sitting without the intervention of a jury, sufficiently authorized the conviction of the accused.

(a) The value of testimony offered to set up the defense of alibi was altogether for the trial court.

2. The alleged newly discovered evidence is purely cumulative and impeaching in character, and therefore did not require the grant of a new trial. Judgment affirmed.

George a/tid Luke, JJ., concur.

Conviction of stabbing; from city court of Macon—Judge Guerry. December 6, 1916.

Hubert F. Bawls, J. F. Monsees, for plaintiff in error.

John P. Boss, solicitor-general, Will Gunn, solicitor, contra.


text:
    8029.
    Baker v. The State.
    Decided March 13, 1917.
    Accusation of misdemeanor; from city court of Savannah— Judge Bourke. December 15, 1916.

      Oliver & Oliver, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
   George, J.

1. The accused was convicted under a count in the accusation charging that he did, in the county of Chatham, on the 29th day of August, 1916, unlawfully have in his possession at one time more than two quarts of spirituous liquors. He contended that he was employed to bring a boat from Jacksonville, Florida, to some point in the State of South Carolina, and stopped at Savannah, Georgia, for certain supplies; and that he had no knowledge of the contents of certain boxes on board which were in fact filled with whisky. The court charged the jury as follows: “If you find from this evidence, if evidence has been adduced, that there was a craft moored in this harbor, and that this craft or vessel contained a quantity of liquor, and the defendant was in charge of said vessel, he would-be guilty under the law.” On request of the foreman of the jury to “read over about the boat being moored,” the court charged as follows: “I charge you that if you find that there has been evidence in this case that a craft, or boat, or vessel was moored in this harbor on or about the date charged in the accusation—that if there was a craft, boat, or vessel moored in this harbor in this State and county, and that it contained a quantity of liquor, and that the defendant was in charge of such vessel, then he would be guilty as charged.” Held: The foregoing instructions were error and require a new trial of the ease. They ignored altogether the contention of the defendant that he had no knowledge of the contents of the boxes; and the court nowhere in the charge instructed the jury that if they believed the defendant’s contention, and found that he did not know that the whisky was on board the boat, they could not convict him.

2. A discussion of other assignments of error is unnecessary, since the errors complained of are not likely to occur on another trial.

Judgment reversed.

Wade, O. J., anct Lulce, J., concur.


text:
    8030.
    Windom v. The State.
    Decided March 13, 1917.
    Accusation of sale of liquor; from city court of Newnan—Judge Post. November 29, 1916.

      Stanford Arnold, for plaintiff in error.

      W. L. Stallings, solicitor, contra.
   Luke, J.

1. On the trial of one charged with the sale of intoxicating liquor it was error for the court to permit a witness, over proper objection, to testify that he bought whisky from a person other than the defendant, and who lived on the same premises with the defendant, when the witness testified that he had never bought any whisky from the defendant, and that the defendant was not present and had no connection with the sale. Holmes v. State, 12 Ga. App. 359 (77 S. E. 187).

2. A witness whose impeachment has been attempted by proof of general bad character may be sustained by witnesses who admit that his character is bad but that they would believe him on oath. The question as to whether the witness has been successfully impeached, and the value of his testimony, is exclusively for the jury. Taylor v. State, 5 Ga. App. 237 (62 S. E. 1048).

3. It is not error for the court to charge the jury in effect that flight by one charged with crime, immediately after the alleged commission of the act, may be considered by the jury as a circumstance, not sufficient itself to establish guilt, but as a circumstance in determining the guilt or innocence of the accused. Barnett v. State, 136 Ga. 65 (70 S. E. 868); Smith v. State, 106 Ga. 673 (32 S. E. 851, 71 Am. St. R. 286).

4. For the reasons assigned in the first headnote the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, O. J., and Geor.ge, J., concur.


text:
    7629.
    Camp v. Turner et al.

   Wade, C. J.

1. Without considering the testimony which the court excluded, as to the claim of right under which the plaintiff held possession of the property for which she brought her action • of trover, her testir mony disclosed that she was in fact in possession of the property after the death of her husband, and she was entitled to maintain her action for any interference with such possession except as against the true owner or a person wrongfully deprived of possession. Civil Code of 1910, § 4482.

2. There being proof of possession by the plaintiff and of interference therewith by the defendants, who had not been deprived wrongfully of the property in dispute, and were not the true owners thereof, the court erred in awarding a nonsuit.

Decided March 15, 1917.

Trover; from city court of. Floyd county—Judge Nunnally. June 16, 1916.

Harris & Harris, for plaintiff. M. B. Eubanks, for defendant.

3. The assignment of error on the exclusion of a certain writing, evidencing a proceeding in the court of ordinary, may not be considered, since the contents of the document excluded can not be ascertained without reference to other parts of the record (Flynt v. Tribble, 146 Ga. 277 (91 S. E. 80); and as this assignment of error may not be considered, we can not rule upon the further assignment of error, complaining of the exclusion of testimony to the effect that the plaintiff’s possession of the property in dispute was held under and by virtue of proceedings from the court of ordinary, excluded by the court.

Judgment reversed.

George and Luke, JJ., concur.


text:
    7646.
    Southern Railway Co, v. Southern Cotton Oil Co.
    Decided March 15, 1917.
    Certiorari; from Bibb superior court—Judge Mathews. June 30, 1916.

      Harris, Harris & Witman, W. B. Birch, P. F. Brock, Mallary & Wimberly, for plaintiff in error.

      Hardeman, Jones, Park & Johnston, Harry S. Strozier, contra.
   Wade, C. J.

1. Where a common carrier accepts goods for transportation without prepayment of charges, agreeing to collect the charges from the consignee, and the consignee fails to pay them, the consignor is still liable therefor to the carrier. Jelks v. Philadelphia & Reading Railway Co., 14 Ga. App. 96 (80 S. E. 216).

2. A railroad company which, through mistake • or negligence, has failed to collect from a consignee the charges due for transportation is not estopped from recovering them from the consignor, merely because of failure to sue therefor until after the consignee (who by agreement with the consignor is liable for the freight) has become insolvent. Central of Georgia Ry. Co. v. Eatonton Lumber Co., 14 Ga. App. 302 (3) (80 S. E. 725).

3. The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

George and Luke, JJ., concur.


text:
    7674.
    Taylor v. Cone.
    Decided March 15, 1917.
    Complaint; from city court' of Nashville—Judge Christian. June 2, 1916'.

      J. D. Lovett, Hendricks, Mills & Hendricks, J. S. Bidgdill, for plaintiff. J. H. Gary, J. P. Knight, for defendant.
   Ltjke, J.

Where the purchaser of an automobile inspected, it personally before the purchase, made a cash payment, gave his promissory note for the remainder of the purchase-price, and received the property, and about four months thereafter made a payment on the note, and in another month made another payment, and, some time after the maturity of the note, on being pressed for payment of the balance due, wrote to the attorney of the holder of the note a letter in regard to it as follows: “Your letter to hand and noted. It is impossible for me to send you cheek for that amount now. Have got a judgment against the men that owe me, and just as soon as the sheriff can collect the money I will send to you. I think that will be sooner than you can make it out of me to- sue me. You know it is hard to collect anything now. I know Mr. Taylor thinks I don’t want to pay him, but I can’t help it, I am doing all I can do. If he will wait until I can collect this money he shall have it”; the maker of the note, when sued thereon some months thereafter, could not successfully set up the defense that there had been a total failure of consideration. Therefore a verdict in favor of the defendant in this case was wholly unsustained, and the plaintiff was entitled to a judgment for the amount sued for. The court erred in overruling the motion 'for a new trial. Baxley Tie Co. v. Simpson, 1 Ga. App. 670 (57 S. E. 1090) ; Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (73 S. E. 412); Hardee v. Carter, 94 Ga. 482 (19 S. E. 715) ; American Car Co. v. Atlanta Street Ry. Co., 100 Ga. 254 (28 S. E. 40) ; Lunsford, v. Malsby, 101 Ga. 39 (28 S. E. 496) ; and Page v. Dodson Printers’ Supply Co., 106 Ga. 77, 80 (31 S. E. 804).

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    7690.
    Green v. Wade-Chambers Grocery Company.
   Luke, J.

1. In a claim case the following admission was made: “It is admitted by counsel for plaintiff and claimant that R. T. Green [defendant in fi. fa.] acted as agent of Mrs. A. Green [claimant], his wife, in the purchase of the mill property [the property levied upon]. It is further admitted that the defendant was in possession of the property at the time of levy.” Held: This admission on the part of the plaintiff explained the possession of the defendant in fi. fa., and did not relieve the plaintiff from the necessity of showing title in the defendant in fi. fa.

Decided March 15, 1917.

Levy and claim; from city court of ' Quitman—Judge Long. May 27, 1916.

M. Baum, for plaintiff in error. Branch & Snow, contra.

2. Where the plaintiff in fi. fa., under the- facts stated above, undertook to prove title in the defendant in fi. fa., it was error for the court to charge the jury as follows: “The burden of proof is upon the claimant, to show by competent evidence the facts which she alleges, in order to relieve the property from being subjected to the fi. fa. of the plaintiff in this ease. The duty rests upon her, under the rules of law, to carry this burden of proof by a preponderance of the evidence; and by a preponderance of the testimony is meant that superior weight of the evidence upon the issue involved which, while not enough to wholly free the minds and consciences of a reasonable doubt, is yet sufficient to incline the minds of impartial jurors to one side of the issue rather than to the other.” Civil Code (1910), § 5170.

Jiidgment reversed.

Wade, C. J., and George, J., concur.


text:
    7771.
    Wells v. Jefferson County.
   George, J.

1. The provision of the Political Code of 1910, § 748, making counties primarily liable for injuries caused by defective bridges, whether erected by contractors or by the county authorities, is not applicable to a bridge erected over a watercourse which divides one county from another. To bridges of the latter class (that is, to county-line bridges) sections 419 to 423 of the code are applicable, and liability attaches only in accordance with section 768,—that is, for failure of the county to take a sufficient bond from the contractor. Willingham v. Elbert County, 113 Ga. 15 (38 S. E. 348); Forsyth County v. Gwinnett County, 108 Ga. 510 (33 S. E. 892) ; Brooks County v. Carrington, 7 Ga. App. 225 (66 S. E. 625); Laurens County v. McLendon, ante, 246 (91 S. E. 283).

2. Counties are not liable to suit for any cause of action unless made so by statute. Political Code of 1910, § 384. There is no statute expressly authorizing suit against a county for failure to repair a bridge after seven years have elapsed from the date of its construction. County of Monroe v. Flynt, 80 Ga. 489 (6 S. E. 173) ; Arnold v. Henry County, 81 Ga. 730 (8 S. E. 606) ; Dougherty County v. Newsom, 107 Ga. 811 (33 S. E. 660).

3. In this case the petition alleged that the injuries sustained were caused by the defective condition of a county-line bridge, and that the county authorities causing the construction of the said bridge failed to take bond in accordance with section 768 of the Political Code of 1910. It was not alleged that the bridge was built by contract, or that the bridge was let out to the lowest bidder, or that the alleged injuries occurred within seven years after the bridge was built. In fact the plaintiff did not allege when or how the bridge was built, or claim that it was simply repaired within a period, of seven years preceding the injury. The petition was predicated upon the theory that the county was primarily liable for a negligent failure to repair the defects in the bridge after knowledge of the existence of such defects. Held: The petition was properly dismissed on general demurrer. Even if a county is liable for its negligence (which is not expressly declared by statute) in failing to cause a county-line bridge to be repaired by letting out the contract therefor to the lowest bidder at public outcry at the location of such bridge, after having advertised the letting out of,the contract as provided in section 419 of the Political Code of 1910, the petition in this case was defective in that it failed to allege that the bridge in question was built since the act of 1881 (Acts 1880-1, p. 132), from which that section was taken. Seymore v. Elbert County, 116 Ga. 371. The decisions in the cases of Mackey v. Ordinaries of Murray and Whitfield Counties, 59 Ga. 832, and Davis v. Horne, 64 Ga. 69, relied on by counsel for the plaintiff in error, were considered and declared to be unsound in County of Gwinnett v. Dunn, 74 Ga. 358, and in Arline v. Laurens County, 77 Ga. 249 (2 S. E. 833).

Decided March 15, 1917.

Action for damages; from city court of Louisville—Judge Jordan. July 31, 1916.

L. D. McGregor, W. L. Phillips, for plaintiff.

B. G. Price, J. B. Phillips, for defendant.

Judgment affirmed.

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


text:
    7811.
    Jones v. White.
   George, J.

1. “An agreement between a creditor, his debtor, and a third person, whereby said third person, in consideration of the creditor’s releasing the debtor, agrees to pay the amount of the debt to the creditor, and the creditor releases the debtor and agrees that said third person shall be substituted for the debtor, is not within the statute of frauds.” Especially is this true where the original debtor, a tenant of the creditor, is in possession of property on which the creditor has a lien, which is waived by the creditor in consideration of the promise of the third person. Harris v. Jones, 140 Ga. 768 (79 S. E. 841); Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (51 S. E. 714).

2. The evidence in this case discloses substantially the foregoing facts, the verdict is not without evidence to support it, and the court did not err in overruling the motion to dismiss the plaintiff’s petition, or in overruling the defendant’s motion for a new trial. ■

3. The ground of the motion for new trial based upon alleged newly discovered evidence is without merit. The motion does not disclose the source of the alleged newly' discovered testimony, and no supporting affidavit whatever is attached to the motion. “Civil Code of 1910, § 6086. Judgment affirmed.

Decided March 15, 1917.

Appeal; from Upson superior,court—Judge Searcy. August 5, 1916.

John B. McDonald, for plaintiff in error.

James B. Davis, contra.

Wade, O. J., and Luke, J., concur.


text:
    7867.
    TOWNS v. ROME RAILWAY & LIGHT COMPANY.
    After the rendition of a verdict in a civil ease it was too late to object that one or more of the jurors who tried the ease had not been sworn, even though this fact was not known by the losing party or his counsel before the verdict was rendered.
    Decided March 15, 1917.
    Action for damages; from city court of Eloyd county—Judge Nunnally. September 22, 1916.

      McHenry & Porter, for plaintiff.

      Dean & Dean, L. H. Covington, for defendant.
   Wade, C. J.

There is no contention in this case that the verdict was unsupported by evidence, and the only question for determination is whether the losing party in a civil suit may, after the rendition of a verdict, urge for the first time the objection that one or more of the jurors trying the case had not been sworn. In other words, can the administration to one or more jurors in a civil case of the oath prescribed by our statute be lawfully waived; and, if so, does the failure to direct the attention of the trial court to such omission at the time constitute a sufficient waiver? We find no direct ruling on this question by either the Supreme Court or this court, but in many other jurisdictions it has been held that failure to swear the jury in a civil case is a mere irregularity which is waived if objection is not made at the time, and that, in the absence of timely objection, the omission will not affect the validity of the verdict thereafter returned. Section 860 of the Penal Code of 1910 provides, that “Each panel of the petit jury shall take the following oath: ‘You shall well and truly try each cause submitted to you during the present term,.and a true verdict give, according to the law as given you in charge, and the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge, without favor or affection to either party, provided you are not discharged from the consideration of the case submitted. So help you God.’ ” Section 1005 of the Penal Code provides that “In all criminal cases, the following oath shall be administered to the petit jury, to wit: ‘You shall .well and truly try the issue formed upon this bill of indictment between the State of Georgia and A. B., who is charged (here state the crime or offense), and a true verdict give according to evidence. So help you God.’”

In Slaughter v. State, 100 Ga. 323 (28 S. E. 159), our Supreme Court held: “Though the fact that the oath prescribed in . . the Penal Code had not been administered to the jury trying a criminal case was known to counsel for the accused while the trial was in progress, it was not too late after verdict to take advantage of the court’s omission to have the jury duly sworn. The administration of this oath, literally or in substance, was essential to the legality of the trial, and was therefore not a matter which could be waived by the accused or his counsel, either expressly or by silence.” In the opinion in that case Lumpkin, P. J., after quoting from various authorities, said: “In so far as it may be gathered from any of the above authorities that a failure to swear one, or more, or all, of the jurors trying a civil case would be fatal to the verdict rendered, even where the losing party knew of such failure before the trial ended, and yet made no objection or complaint, we do not wish to be understood as now agreeing to such a conclusion. Our present decision is limited to the question before us as it relates to criminal cases. In civil cases, the oath, under our law, is administered to all regularly inqoaneled jurors at the beginning of each term; and there is no practice of specially swearing the jury in each case, as our criminal procedure requires, except, perhaps, as to the oath prescribed for juries impaneled to try claim cases. Our conclusion in the present case is, that while administering the wrong oath to a jury in a criminal case may be regarded as a mere irregularity of which the accused can not avail himself after deliberately maintaining silence until after verdict, a total failure to swear the jury is a matter which can not, in any manner or under any circumstances, be waived; and as a consequence, a conviction by an unsworn jury is a mere nullity, of which the accused could not, upon a subsequent arraignment, avail himself by a plea of autrefois convict.”

In view of the trend of more recent decisions it máy perhaps be questioned whether the strict technical rule laid doym in the Slaughter ease, supra, would now he enforced by the Supreme Court if the same question were again presented for adjudication. In fact, it may be reasonably inferred from the ruling in Frank v. State, 142 Ga. 741 (83 S. E. 645, L. R. A. 1915D, 817), that a broader view might now be entertained by that court, and that even in a criminal case the failure of the accused to raise the objection that one or more jurors had not been sworn before the verdict was returned would amount to a sufficient waiver of this irregularity. In the decision in that case it was said: “While a defendant indicted for crime in this State has the legal right to be personally present at every stage of his trial, as before stated, there are certain matters which he may waive, and which many prisoners do waive at their trial. They may waive copy of indictment, formal arraignment, and list of witnesses before the grand jury, all of which are' important rights. They may waive a preliminary hearing before a committal court, a jury of twelve to try them, or any legal objection to jurors who have qualified on their voir dire; they may even waive trial entirely, plead guilty of murder and be sentenced to hang. Sarah v. State, 28 Ga. 576 (2), 581; Wiggins v. Tyson, 112 Ga. 745, 750 (38 S. E. 86).” This is held notwithstanding that every person accused of crime is entitled, under the constitution of this State, to be furnished “with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded,” etc. Civil Code, § 6361. So far as we have been able to discover, the ruling in the Slaughter case, supra, has never been followed or approved by either the Supreme Court or this court, but stands alone and unsupported by any other ruling from our courts. We need not speculate, however, upon whether or not the Supreme' Court might on review modify or rescind the ruling made in the Slaughter case, because that ruling is confined by its express terms to criminal trials, and therefore is no more than persuasive authority in determining the question at issue in the case under consideration.

In Hordenburgh v. Carry, 15 How. Pr. (N. Y.) 307, it was held that a failure to swear one of the jurors who did not arrive at the court-house until the rest of the panel had been sworn was immaterial if no objection was made. In Cahill v. Delaney, 68 N. Y. Supp. 842, where, in a trial in a justice’s court, a jury was summoned and accepted to try the issues involved, both parties being present and represented by counsel, and, after a trial, retired and returned a verdict, but the jury was not sworn, it was held: “The failure of the justice to swear the jury was an irregularity only, which the parties waived by joroceeding with the trial without, objection being made when the omission might have been supplied and error avoided.” So, too, in Jenkins v. City of Hudson, 16 Abb. N. Cas. (N. Y.) 137, it was held: “A verdict in a civil action is not void or irregular merely because the trial proceeded to verdict without the jury being sworn, if neither party requested that they be sworn.” In Clements v. Crawford, 42 Tex. 604, it was held that after verdict and judgment it is too late to object to the formality of an oath administered to a jury. In Burns v. Matthews (46 S. W. 79) the Court of Civil Appeals of Texas said, as to the failure to swear a certain juror: “The attorneys did not swear that they did not know of it, and, if they had, it would not have changed the status of affairs, because it was too late after trial to spring such a matter. It was the duty of counsel to be on the alert and see that the jury was properly sworn.” See also Texas Ry. Co. v. Butler, 52 Tex. Civ. App. 323 (114 S. W. 671). In Boss v. Grand Pants Co., 241 Mo. 296 (145 S. W. 410), where it appeared that one of the jurors who tried the case had not been sworn, it was said: “We conclude that any irregularity in administering the oath to the jury, or a total or partial failure to administer the oath at all, in a civil case, is purely a matter of exception. Being such, an exception should be made at the' time the omission occurred. Counsel can not be heard to say he did not know of the omission. His business in court was to see that the trial proceeded in an orderly manner, and that every right of his client was preserved, and make the record show his exceptions in case he felt his client aggrieved by an adverse ruling. The point was made too late, and was waived by the delay in making it.” In a case decided by our Supreme Court (Candler v. Hammond, 23 Ga. 493, 499), where a defendant submitted to -trial by a special jury under their oath, without objection, and knowing that they had not been sworn as required by the escheat act of 1817, it was held: “It was too late for the defendant to object to the form of oath administered to the jury, after he had proceeded to trial without objection on that account. He was willing to risk the chances of a verdict in his favor, under the oath as administered, and it is now too late, after verdict against him, to object.” That case differs in its facts from the case now under review, but is in accord in principle with what is herein ruled.

It is true that our code (Penal Code, § 860) declares that “Each panel of the petit jury shall take the following oath,” etc., but it is equally true that in the statute law of this State there is no express provision that the verdict of an unsworn jury shall be void or even voidable; and since parties to cases (either criminal or civil) may waive constitutional rights guaranteed them, we see no valid reason why the administration of the oath prescribed-by our law to three jurors, or to the entire jury, may not be waived; and if so, why it may not be waived impliedly, but effectually, by failure to interpose objections at the trial and before its termination. We hold, therefore, that the fact that three jurors were not sworn in this case was only an irregularity, which could be waived and was waived by the omission to urge objection upon this ground-before the return of the verdict. These jurors doubtless acted as conscientiuosly and as impartially as they would have done under oath, and at any rate the contrary is not shown. Since the failure to administer the oath to every member of the jury trying a civil case is purely a matter of exception, it is the business of counsel 'to ascertain if all the jurors are in fact sworn as well as generally to know that all proper forms are complied with and every substantial right of the client is preserved. It .follows that an affidavit by counsel for the losing party, that until after verdict they were ignorant of the fact that three of the jurors trying the case had not been sworn, will not suffice to remove the implied waiver. This fact could have been ascertained by counsel by a simple inquiry before offering evidence or even selecting the jury from the list of jurors submitted; and as we hold that the failure to swear jurors in a civil case is a matter which may be waived, we see no reason for applying a different or a stricter rule than in the ease of challenge to a juror, which a party waives by neglecting to bring the disqualification of the. juror to the attention of the court until after a verdict has been returned against him, notwithstanding he is then ignorant of such disqualification.

Judgment affirmed.

George and Lulce, JJ., concur.