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

text:
    10548.
    KELLEY et al v. THE STATE.
    1. The same transaction may constitute both larceny after trust and simple larceny. In such a ease there may be a conviction of either offense.
    2. If a person obtains possession of the property of another under the false pretense of a bailment, with intent to appropriate the property to his own use, and the owner intends to part with the possession only of the property, the possession is obtained unlawfully, and the subsequent appropriation in pursuance of the original intent is simple larceny.
    Decided July 23, 1919.
    Indictment for larceny; from Eulton superior court—Judge Humphries. April 12, 1919.

      W. I. Heyward, II. A. Allen, Tillou Von Nunes, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A. Stephens, contra.
   Broyles, P. J.

The controlling question in this case is whether the defendants were guilty of simple larceny as charged in the indictment, or whether they were guilty of larceny after trust only. It is contended by their counsel that under the evidence adduced the only offense of which they could have been legally convicted was larceny after trust. Both of the defendants were employed by the firm of Cefalu & Company, engaged in the “green grocery” business. One of the defendants, Hampton, was employed by the firm about 8 o’clock on the morning of January 31, 1919, to drive their delivery wagon. After making one delivery to a local hotel he returned to the store with the mule and wagon. About 10:30 o’clock on the same morning he was again entrusted with the mule and wagon and sent out to deliver other groceries. This time he did not return to the store, and the mule and wagon were not sent back. About 1:30 o’clock in the afternoon of the same day the other defendant, Kelley, rode up on the mule to the stable of a horse and mule dealer in Atlanta and offered to sell the mule for $15, but finally agreed to take $5 for it. The dealer, without the knowledge of Kelley, had the police telephoned for, and attempted to keep Kelley there by conversation and by delay in paying him the money. Kelley’s suspicions were aroused, however, and before the police arrived he ran and attempted to escape, but was caught by the dealer and was turned over to the police when they arrived. Kelley told the police that he had left the other defendant, Hampton, “up the street a little ways,” and that he and Hampton had decided to sell the mule and get money to leave on that night.

It is well settled that the same transaction may constitute both larceny after trust and simple larceny, and that in such a case the jury can convict the accused of either offense. Martin v. State, 123 Ga. 478 (51 S. E. 334), and authorities cited; Bryant v. State, 8 Ga. App. 389 (2) (69 S. E. 121).

Where a person obtains possession of the property of another, under the false pretense of a bailment, with intent to appropriate the property to his own use, and the owner intends to part with the possession only of the property, the possession is obtained unlawfully, and the subsequent appropriation of the property in pursuance of the original intent is simple larceny. Martin v. State, supra, and authorities cited.

The intent with which an act is done is peculiarly a question of fact for determination by the jury; and although a finding by the jury that the accused had the intent to commit the crime charged may be supported by evidence which is exceedingly weak and unsatisfactory, the verdict will not be set aside on that ground. Johnson v. State, 9 Ga. App. 409 (3) (71 S. E. 507).

Hnder the foregoing rulings we think that the facts of the instant case authorized the jury to find that when the defendant Hampton obtained possession of the mule and wagon to make the second trip for his employers he had formed the intent to appropriate the property to his own use, and that the other defendant, Kelley, conspired with him, and that they were both guilty of simple larceny.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

Stephens, J.,

concurring specially. I concur in the judgment of affirmance on the ground that, under the law of Georgia, “horse stealing shall be denominated simple larceny. . . The offense shall, in all cases, be charged as simple larceny, but the indictment shall designate the nature, character and sex of the animal, and give some other description by which its identity may be ascertained.” Penal Code, §§ 153, 154. The indictment in this case charges the defendant with simple larceny for that he “did wrongfully, fraudulently and privately take, steal and carry away with intent to steal the same one sorrel horse mule and wagon, of the value of one hundred dollars,’'’ etc. The evidence showed that the defendants were guilty of horse stealing, and therefore supported the indictment.

The excerpts from the charge of the court, if error, were harmless.


source: Caselaw Access Project

author: Bkoyles, P. J. Stephens, J.

license: Public Domain

text:
    10561.
    Strickland v. The State.
   Bkoyles, P. J.

1. In this case a verdict and judgment were rendered, but no motion for a new trial was made. The burden, therefore, is upon the plaintiff in error to show that the alleged errors of omission in the charge of the court, complained of in the bill of exceptions, were necessarily controlling upon the verdict and judgment. Civil Code (1910), § 6144.

2. The conviction of the defendant did not depend wholly upon circumstantial evidence, and therefore the court did not err, in the absence of a timely and appropriate written request, in failing to charge the law of circumstantial evidence.

3. The second assignment of. error, based upon the failure of the court to charge a certain theory, in the light of the qualifying note of the trial judge and of the entire charge, is without merit.

4. The court did not err in failing to charge, in the absence of a timely and appropriate written request, that if the defendant unlawfully pointed and snapped a pistol at the prosecutor, but in doing so did not intend to kill him, the jury would not be -warranted in convicting him of assault with intent to murder, but would be warranted in convicting him of pointing a pistol at another, which is a misdemeanor. The judge correctly charged the law of assault with intent to murder, including of course the specific intent to kill, and the jury, by returning a verdict of assault with intent to murder, necessarily found that the defendant had such intent. Furthermore, the theory that the defendant, in assaulting the prosecutor with a deadly weapon, did not intend to kill him, was raised solely by the defendant's statement; and it is well-settled law that under such circumstances the judge is not required to charge upon this theory, unless a request therefor has been presented.

Decided July 23, 1919.

Indictment for assault with intent to murder; from Early superior court-—Judge Worrill. April 16, 1919.

A. II. Gray, L. M. Bambo, for plaintiff in error.

B. T. Oasiellow, solicitor-general, B. B. Arnold, contra.

5. Under the immediately preceding ruling and the facts of the case, the court did not err, in the absence of a timely and appropriate written request, in failing to charge at all upon the oifense of pointing a pistol at another.

6. The court did not err, in the absence of a timely and appropriate written request, in failing to charge the jury that if they believed the defendant pointed the pistol and snapped it at the prosecutor in self-defense he should bo acquitted. The theory of self-defense, if raised at all, was raised solely by the defendant’s statement, and it is well-settled law that under such circumstances the court is not required to instruct the jury thereon, in the absence of a timely and appropriate written request to do so.

7. No motion for a new trial having been made in this case, the question as to the sufficiency of the evidence to support the verdict can not be passed upon. Mackin v. Blalock, 133 Ga. 550 (4) (66 S. E. 265, 134 Am. St. R. 220).

Judgment affirmed.

Bloodworth, •/., concurs. Stephens, J., concurs specially.

Stephens, J.

I concur in the judgment of affirmance upon all of the grounds, but cannot agree to all of the reasoning in paragraph four.


author: Broyles, P. J.

text:
    10596.
    Parker v. The State.
    Decided July 23, 1919.
    Indictment for misdemeanor; from Glascock superior court— Judge Walker. April 18, 1919.

      E. B. Bogers, for plaintiff in error.

      B. 0. Norman, solicitor-general, contra.
   Broyles, P. J.

Conceding, but not deciding, that the lard-can found in the defendant’s house was an apparatus for the distilling and manufacturing of whisky, within the meaning- of section 22 of the act of the General Assembly approved March 28, 1917 (Acts 1917, Ex. Sess., p. 18), the undisputed evidence showed that the lard-can had been brought to the house and left there in the defendant’s absence, and had been there only a few hours when found by the officers, and that although the defendant was present in the house when it was found, he had not been told and did not know of its presence. It follows that his conviction was unauthorized, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Stephens, J.

text:
    10383.
    BYERS v. THE STATE.
    The alleged newly discovered evidence in this case does not require a new trial.
    Decided July 23, 1919.
    Indictment for manufacture of intoxicating liquor; from Putnam superior court—Judge Park. .February 11, 1919.

      E. C. Jenkins, S. T. Wingfield, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Stephens, J.

The only ground of tbe motion for a new trial tliat is insisted upon in the brief of counsel for the plaintiff in error relates to alleged newly discovered evidence. The record shows that this alleged newly discovered evidence is that of witnesses who testified against the plaintiff in error in the investigation before a United States Commissioner in the presence of the plaintiff in error, and therefore can in no sense be “newly discovered evidence.” The mere fact that the defendant “did not know of its relevancy and importance” will not avail him. Fleming v. State, 31 Ga. App. 188 (93 S. E. 1012); Adams v. State, 22 Ga. App. 252 (3) (95 S. E. 877); Rachels v. State, 22 Ga. App. 649 (96 S. E. 1045). In his- affidavit attached to the motion for a new trial it is not stated that he “did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910), § 6086. Hence this ground of the motion should not be considered by this court. Moreover, this alleged newly discovered evidence is merely impeaching in its nature, and “it is a sound and well-settled rule that a new trial will not be granted on the ground of newly discovered testimony, if the only object of the evidence be to impeach the character or credit of a witness. Where one has been convicted of a crime, on false testimony, and witnesses have subsequently been discovered who can prove that testimony false, it is better that redress should be sought in executive clemency than that the court by granting a new trial should violate a general rule essential to the pure and certain administration of justice.” Levining v. State, 13 Ga. 513 (1-2).

Judgment affirmed.

Brpyles, P. J., and Bloodworth, J., concur.


text:
    10581.
    O’Neal v. The State.
    Decided July 23, 1919.
    Certiorari; from Fulton superior court—Judge Bell. March 20, 1919.
    Julius O’Neal was convicted in the criminal court of Atlanta under an accusation which charged him with receiving stolen goods, described as six pillow slips, one sheet, nineteen towels, and one hair brush, the property of the Pullman Company. The defendant demurred on the ground that the description of the goods was too vague and indefinite and not sufficient to put him on notice of what articles were received, so as to prepare his defense.
   Broyles, P. J.

1. The court did not err in overruling the demurrer to the accusation.

2. It is never error to refuse to direct a verdict.

3. The court did not err in admitting the testimony of witnesses, for the State (as complained of in the 7th paragraph of the petition for certiorari) that the articles found in the defendant’s house were the property of the Pullman Company.

4. The charge of the court sufficiently instructed the jury upon the law of simple larceny, and upon the subject of reasonable doubt.

5. Upon the trial of one for knowingly receiving stolen goods, where the indictment charges that the principal thief is unknown to the grand jury, so that he can not be caught and convicted, it is not necessary for the State to show that the theft occurred in the county of the trial. It is sufficient if it be shown that the “knowingly receiving” was done in that county. Licette v. State, 75 Ga. 253.

[a) Since August 1, 1918, it is not even necessary to show that the property was stolen in this State. Ga. L. 1918, p. 272. Under this ruling the trial judge did not err in charging as complained of in the 11th paragraph of the petition for certiorari.

6. Under the facts of the case the other special assignments of error in ■ the petition for certiorari are without any substantial merit.

7. It is well settled that the corpus delicti can be proved by circumstantial evidence. In this case the evidence, although circumstantial, was sufficient to authorize the jury to find that the property of the Pullman Company found in the defendant’s possession had been stolen from the company by certain Pullman-car porters who roomed in the defendant’s house, that the defendant “knowingly received this stolen property in Pulton county, Georgia, and that the offense was not barred by the statute of limitations.

(a) Moreover, the point that the venue was not proved by the evidence was not raised in the trial court, or in the petition for certiorari, except by a motion to direct a verdict for the defendant on that and other grounds, which motion was refused by the court. As stated above, a refusal to direct a verdict is never error; and when this court holds (as it must) that the exception to the refusal to direct a verdict is without merit, the grounds upon which the motion to direct a verdict were made necessarily fall with the exception. As the question of venue was not otherwise raised in the case, that question can not be considered by this court. Park’s Penal Code, § 792 (a).

8. The judge of the superior court did err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

From the evidence it appeared that the defendant conducted a rooming house in the city of Atlanta, on Mechanics street, near the store-house of the Pullman Company and near a side-tracli at the Terminal Station where ears of that company were placed. Some of the rooms in his rooming house were rented to Pullman-car porters. Officers searching the house found in the defendant’s room six pillow slips, one sheet, nineteen towels, and one hair brush, which were exhibited to the jury; and they “found nearly every room in the house either entirely or partially fitted out with sheets, towels, and pillow slips similar to these . . in size, texture, and appearance, and with ‘Pullman’ stamped or printed on them in large letters.” The officers found “in the other rooms four heavy fiannel Pullman blankets, with the word ‘Pullman’ stamped or printed in numerous places on each blanket.” They then went to the place where the defendant worked, and when they asked him what was his name, he replied that it was Brown; they searched the place “for Julius,” and when they learned he was the man they had talked to he had left the place. The officers went to a laundry patronized by the defendant and found there many sheets, towels, and pillow cases which were being laundered for him. For two or three months before this time large quantities of sheets, ■towels, pillow cases, and other goods of the Pullman Company, used in its cars, “had been missing through theft” from its storeroom at the Terminal Station and from its cars at Mechanics street, in Atlanta. The company does not sell or give away such articles, but destroys them when they are worn out. It was testified that the principal thief was unknown.

An employee of the Pullman Company testified that “the property brought into court was the property of the Pullman Company,” and that he knew this “on account of the size, shape, color, character of goods, and the distinctive name and mark of ‘Pullman’ in large printed letters on them.” The employee in charge of the storehouse mentioned above testified that the goods mentioned were the property of the Pullman Company, and he believed they were stolen from that company in Atlanta, Fulton county, Georgia. One of the assignments of error is that the court erred in admitting the testimony of these two witnesses as to the ownership of the property, over the objection that it was a mere conclusion or opinion.

Lowndes Calhoun, for plaintiff in error.

John A. Boylcin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, E. C. Hill, contra.


author: Bloodwokth, J.

text:
    10111.
    Pendley v. Paga Mining Company.
    Decided August 7, 1919.
    Action for damages; from Bartow superior court—Judge Tarver. July 19, 1918.

      Colquitt & Conyers, A. W. Fite, for plaintiff.

      Neel & Neel, for defendant.
   Bloodwokth, J.

The nonsuit in this case was properly granted.

Judgment affirmed.

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


author: Bloodworti-i, J.

text:
    10129.
    Pendley v. Cohutta Banking Company.
    Decided August 7, 1919.
    Añidavit of illegality; from Murray superior court—Judge Tarver. August 13, 1918.

      W. E. Mann, for plaintiff.

      C. N. King, W. C. Marlin, F. K. McCutchen, contra.
   Bloodworti-i, J.

The court did not err in directing a verdict for the defendant in error.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    10139.
    THE PILGRIM HEALTH AND LIFE INSURANCE COMPANY et al. v. McINTOSH.
    Although a correct statement of a principle of law was made in the request to charge, that “where agency is shown by proof of the relative situation of the parties, the agency is established no further than is necessary for the discharge of the duties ordinarily belonging to it,” there was no issue as to the authority of the agent who acted in behalf of the defendant corporation in the alleged malicious prosecution for which it was sued in this ease. The court therefore did not err in refusing to charge as requested.
    The verdict against the defendant was authorized, and no error of law appears from the motion for a new trial.
    Decided August 7, 1919
    Action for malicious prosecution; from Chatham superior court —Judge Meldrim. September 17, 1918.

      George W. Owens, for. plaintiff in error. Shelby Myriclc, contra.
   Bloodworth, J.

The 1st, 2d, and 5th grounds of the amendment to the motion for a new trial are but amplifications of the general grounds. There is no merit in the 4th ground.

The storm center of the case is around the 3d ground, which c'omplains of the refusal of the court to give certain requested instructions to the jury. In the order overruling the motion for a new trial the judge said in reference to this request: “The question on this motion is this: Did the court err in refusing to give the request set out in the third ground of the amended motion for new trial ? As an abstract proposition the statement, that ‘Where agency is shown by proof of the relative situation of the parties, the agency is established no further than is nceessary for the discharge of the duties ordinarily belonging to it/ is correct. In fact it is an excerpt from the decision in Wikle v. L. & N. Railroad Co., 116 Ga. 309 [42 S. E. 525]. I refused to give it, because I decided it to be inapplicable to the case as made, and calculated to mislead. It is elementary law that corporations are liable for the acts of their servants while such servants are engaged in the business of their principal. In the instant case the life-insurance company was a corporation. Singfield, a witness for the defense, testified that ‘he was the manager of the defendant company at Savannah, and instructed Perry to swear out the warrant.’ Perry, a witness for the defense, testified that he was ‘bookkeeper1 for the company, and, ‘under instructions from Singfield, swore out the warrant against McIntosh.’ ‘Singfield is the manager for the company for the Savannah district, and was in charge of the Savannah office/ The foundation of the warrant against the plaintiff was the wrongful conversion by him, as an employee of the company, of money belonging to the company, which had been entrusted to him. Singfield, as manager, instructed Perry, the bookkeeper, to take out the warrant against McIntosh. Singfield was engaged, when he gave this instruction, in the business of his principal. ‘The term “manager,” as applied to a private corporation, indicates one who has the general direction and control of the affairs, . . implies agency, control, and presumptively authority to bind the corporation.’ [American Investment Co. v. Cable Co.] 4 Ga. App. 106 [60 S. E. 1037]. No issue was raised in the pleading, evidence, or argument as to the authority of Singfield. There was no denial that he was the manager for the Savannah district. The legal presumption is that he, as manager, had the authority to bind the company. There was not the slightest suggestion that he did not have the authority. I take it to be true that the court should not give in charge abstract principles of law, unless they are adjusted to one or more issues in the ease. There was no issue to which the request was adapted.” We agree with the learned judge in the conclusion reached by him in reference to this request to charge.

The motion for a new trial points out no error of law, the trial judge sustained the verdict, and we sustain him.

Judgment affirmed.

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


text:
    10162.
    MELVIN, administrator, v. ASKEW.
    1. A new trial is not required because of error in using the word “are” instead of “were,” in the charge of the court to the effect that in the affidavit of illegality it was contended that the superior court of Calhoun county, from which issued the execution attacked by the affidavit, did not have jurisdiction of the defendants against whom it issued as principals, for the reason that they “are” residents of Laurens county, and not of Calhoun county. This error was a mere slip of the tongue which could not have misled the jury, in view of other instructions and of the fact that they had with them the affidavit of illegality itself.
    2. The instructions on the law of domicile, taken from the Civil Code (1910), § 2182, were not cause for a new trial on the ground that they were not applicable to the facts of the ease.
    3. There was no error in the instruction that if there was any evidence that the defendants had registered and voted in Calhoun county, this would, be a circumstance that the jury might consider in determining as to the domicile of the defendants.
    4. The requests to charge on the subject of domicile were, so far as correct and applicable, sufficiently covered by the charge given.
    5. The ground as to the admitting of evidence that the defendants said they had voted in a certain election “down here” is incomplete; and other evidence in practically the same language was admitted without objection. ' (

      0. Refusal to exclude testimony set out in ground 12 was not error for the reason assigned.
    7. It was proper to exclude testimony that the witness “would believe” certain other persons if they swore to a certain fact.
    8. There is some evidence to support the verdict.
    Decided August 7, 1919.
    Affidavit of illegality; from Calhoun superior court—Judge Harrell. September 7, 1918.

      W. I. Geer, for plaintiff in error. B. B. Askew, Pope & Bennet, contra.
   Bloodworth, J.

An attachment was levied and an affidavit of illegality filed containing a number of grounds. When this case was before the Supreme Court (See 144 Ga. 349 (87 S. E. 278), where the facts are set out) that court said (p. 353); “There were twenty-four grounds of the affidavit of illegality. Some contained repetition in various forms of the matters above discussed. Some included in one ground reference to several matters. None of them were meritorious except in so far as they attacked the judgment for want of jurisdiction in Calhoun superior court to render it. All the rest of the allegations, except those relative to the subject of jurisdiction, should be stricken (including the plea filed after judgment); and direction is given accordingly.” The issue raised by the ground of illegality not eliminated by the Supreme Court was submitted to a jury, the verdict was adverse to the illegality, a motion for a new trial was filed and overruled, and the movant excepted.

The first ground of the amendment to the motion for a new trial complains that the judge erred in stating the contentions of defendant and telling the jury that the execution was proceeding illegally “for the reason that the superior court of Calhoun county, from which said execution was issued, did not have jurisdiction of the defendants E. E. Stone and L. Y. Stone, against whom said execution issued as principals, for the reason that said defendants nor either of them are residents of Calhoun county, Georgia,, but that they are residents of Dublin, Laurens county, Georgia;” whereas the affidavit of illegality alleged that the defendants at the time of the institution of the suit, the levy of the attachment, were residents of Laurens county, Georgia (italics ours). The use of word “are” by the judge in the above quotation from the charge was only a slip of the tongue, and could not have misled the jury. They had out with them the pleadings, which showed the contentions of the parties. “Verbal inaccuracies in the charge, not calculated to mislead or obscure the meaning of the court, will not require a new trial.” Savannah, Augusta & Northern Ry. Co. v. Williams, 133 Ga. 679 (2) (66 S. E. 942); Cochran v. State, 9 Ga. App. 824 (2) (72 S. E. 281). Besides, the judge charged the jury: “I charge you further that you may take into consideration all the facts and circumstances in this case, to determine where their domicile was at the time this suit was brought,” and “on the other hand, if you should believe from the evidence in the case that E. E. Stone and L. V. Stone did not reside in Calhoun county at the time this suit was instituted or brought, but that they resided in Laurens county or at some other place, then and in that event you will find in favor of the defendants.”

Under the facts of this case it was not error harmful to the plaintiff in error for the judge to give in charge to the jury that portion of section 2182 of the Civil Code of 1910 of which complaint is made in ground 2 of the amendment to the motion for a new trial.

Error is assigned on the following instruction: “If you believe there is any evidence in this case as to their having registered in Calhoun county, Georgia (and it is contended by the plaintiff in this ease that they did register and that they voted in this county), —if there is any evidence of their having voted and registered in this county, I charge you that would be a circumstance that the jury might consider as to determining the domicile of the defendants.” In this we see no error.

The principles embraced in the requests to charge contained in grounds 4 to 10, inclusive, of the motion for a new trial, so far as correct, pertinent, and applicable, were sufficiently covered by the charge given.

Even if the evidence complained of in the 11th ground of the motion for a now trial, that the defendants stated that they voted in a certain election “down here,” was improperly admitted, the error was not of sufficient gravity to require the grant of a new trial. Evidence in practically the same language from another witness was admitted without objection, and there was no denial by the defendant of the correctness of the statement. Besides, every ground of a motion for a new trial must be complete within itself and without reference to other parts of the record; and it would be necessary to refer to the evidence to ascertain where “down here” is, and the year in which the election referred to took place.

The court did not err in refusing to exclude the testimony complained of in ground 12 of the motion for new trial, for the reasons alleged.

The 13th and 14th grounds of the motion for a new trial are without merit. It is not for a witness to say whether or not other witnesses testified truthfully or falsely; that is for the jury to determine.

There is some evidence to support the verdict, which has the approval of the trial judge, no error of law is pointed out, and the judgment is

Affirmed.

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


text:
    10199, 10200.
    Burns, survivor, v. Long et al., admr’s; and vice versa.

    Decided August 7, 1919.
    Complaint; from Carroll superior court—-Judge Terrell. September 30, 1918.

      S. Holderness, Leon Hood, for plaintiff in error.

      Buford Boyhin, S. O. Boylcin, M. B. Robinson, contra.
   Bloodworth, J.

No error requiring the grant of a new trial was committed in any of the rulings on the rejection of evidence as complained of in the amendment to the motion for new trial, in grounds 1, 2, and 3; or in failing to instruct as complained of in ground 4; or in charging the jury as complained of in ground 5. On questions of fact the jurors are the final arbiters. The trial judge approved their finding in this case, and this court will not interfere.

Judgment affirmed, on main bill of emcep lions; eross-bill dismissed.

Broyles, P. J., and Stephens, J., coneur.


author: Bboyi.es, P. J.

text:
    10609.
    Towler v. The State.
   Bboyi.es, P. J.

1. This court can not consider exceptions to the refusal of the trial judge to comply with a written request to charge, unless it is made to appear that it was tendered to the court before the jury retired to consider the case. Seaboard Air Line Ry. v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383). In the instant case it is not shown that the written request to charge was so tendered.

Decided August 7, 1919.

Conviction of assult with intent to rape; from Gwinnett superior court—Judge Cobb. May 3, 1919.

G. F. Kelley, W. L. Nix, for plaintiff in error.

W. O. Bean, solicitor-general, N. L. Hutchins, contra.

2. The venue can be established by circumstantial as well as direct evidence. Dumas v. State, 62 Ga. 59 (4).

3. Evidence as to the venue, though slight, is sufficient where there is no conflicting evidence. Johnson v. State, 62 Ga. 300 (1), 301; Porter v. State, 76 Ga. 658 (2), 660. In the instant case, under the above rulings, the evidence as to the venue was sufficient.

4. The intent with which an act is done is peculiarly a question of fact for determination by the jury, and although a finding by the jury that the accused had the intent to commit the crime charged may be supported by evidence which is exceedingly weak and unsatisfactory, the verdict will not be set aside on that ground. Johnson v. State, 9 Ga. App. 409 (3) (71 S. E. 507). In the instant case the evidence as to whether the defendant had the intent to commit an assult with intent to rape, or had the intent to commit fornication merely, is weak and not altogether satisfactory, but under the ruling just cited, and especially when the tender years of the little girl involved are considered, the verdict, having been approved by the trial judge, will not be set aside.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Wade, C. J.

text:
    9080.
    Georgia Southern & Florida Railway Co. v. Corry.
   Wade, C. J.

This ease (22 Ga. App. 424, 96 S. E. 335) was carried by writ of certiorari to the Supreme Court, and that court made the following rulings:

“A railway company over whose road a passenger-train, including a sleeping-car, is operated is liable for damages which are the proximate results of negligence on the part of the employees in charge of the sleeping-car in failing to notify a passenger occupant thereof of the train’s arrival at his destination. This is ti’ue though the company may not own the sleeping-car or the train, since those having them in charge become its agents and employees as to duties due such passenger, while the train is being operated over its road. Where the passenger in the sleeping-car had no notice of the train’s arrival at his destination, he being ignorant of this fact by reason of the darkness of the night, and the train, together with the sleeping-car occupied by him, at that place, in accordance with its regular course and schedule, but without his knowledge, switched from the line of road over which he held passage onto the line of road of another and different company, and after being transported for some twenty miles over its road he was required by its conductor and the conductor of the sleeping-car to leave the train during the night, iñ freezing weather, at a small station where he was unable to secure accommodation, by reason whereof he contracted an illness which caused him much physical pain and mental anguish, held: (a) The company over whose line he held passage and traveled to his destination was not liable in damages for his illness, for the reason that it was not the proximate result of such company’s negligence in failing to notify him of arrival at his destination. (6) There were no aggravating circumstances in failing to give notice of arrival at the destination, so as to authorize a recovery of exemplary or punitive damages, (c) Nor were damages for loss of time and expense incurred by reason of being carried, without notice, beyond the destination recoverable, when not specially sued for, nor the amounts claimed therefor specially set forth, (d) The petition set forth cause for recovery of nominal damages.” Eor full opinion of the Supreme Court see 149 Ga. 295 (99 S. E. 881).

Decided August 13, 1919.

Action for damages; from city court of Tifton—Judge Price. July 16, 1917.

J. B. Hall, Guyton Parles, 0. J. Bloch, B. D. Smith, for plaintiff in error.

J. S. Bídgdill, B. G. Williford, contra.

Under the latter ruling the petition set forth faets which authorized a recovery of only nominal damages on account of the alleged negligence of the defendant company in failing to notify the plaintiff of the approach of the train to his destination; and the ruling of this court on this question having been reversed in so far as it relates to damages other than nominal, the judgment originally entered by the Court of Appeals is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part, and reversed, in part.

Jenkins and Luke, JJ., concur.


text:
    10086.
    Rogers v. Murray.
    Decided September 18, 1919.
   Stephens, J.

1. There was evidence sufficient to authorize the jury to find that the defendant was negligent in setting out the fire on a very windy day in close proximity to the plaintiff’s property, and in failing to adequately protect or guard the fire so as to prevent its spread to the plaintiff’s property, and that such negligence on the part of the defendant was the proximate cause of the destruction of the plaintiff’s property. The verdict, having the approval of the trial judge, will not be disturbed.

2. The special assignments of error are but amplifications of the general assignments.

Judgment affirmed.

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

Action for damages; from city court of Oglethorpe—Judge Greer. July 29, 1918.

J. J. Bull & Son, for plaintiff in error.

John B. Guerry, contra.


text:
    10103.
    Downs v. Berryman.
    Decided September 18, 1919.
    Trover; from Madison superior court—Judge Hodges. July 22, 1918.

      B. T. Moseley, Erwin, Ruclcer & Nix, for plaintiff.

      Alexander & Johnson, contra.
   Stephens, J.

1. In an action of trover where the plaintiff elects to take a money verdict, a nonsuit is properly awarded where there is no proof of the value of the property. Moats v. Farks, 17 Ga. App. 778 (18 S. E. 685), and eases there cited. The defendant in such action, by the giving of a replevy bond, which is required by law to be in “double the amount sworn to” by the plaintiff as the value of the property in the latter’s application for bail, does not admit the value of the property, and such bond is not prima facie evidence of such value.

2. The agreed price of property as stated in a contract of sale is not evidence of the value of the property in a trover suit against one who was not a party to the contract of sale.

Judgment affirmed..

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


text:
    10106.
    Swift Manufacturing Company v. Cunningham.
   Bloodworth, J.

1. The court did not err in any of its rulings on the pleadings.

2. There is no error in any of the excerpts from the charge of which complaint is made that would require the grant of a new trial.

3. As far as legal and pertinent, the principles embraced in the requests to charge were sufficiently covered by the charge given.

4. Ground 13 of the motion points out no error that would require the grant of a new trial.

5. Granting, but not conceding, that the court erred in rejecting the evidence of C. A. Sweet, as complained of in the last ground of the motion for a new trial, this error is not of sufficient materiality to require this court to set aside the verdict, as practically the same evidence, without objection, went to the jury from this same witness and from witnesses Glass, J. M. Hancock, Bugg, and Jinriglit. In addition a model of the machine and pictures thereof were introduced in evidence, and were with the jury during the consideration of the case.

Decided September 18, 1919.

Action for damages; from Muscogee superior court—-Judge Howard. August 29, 1918.

Battle & Hollis, for plaintiff in error.

T. H. Shanlcs, contra.

6. There is evidence to support the verdict, and the judgment is

Affirmed.

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


text:
    10160.
    Alexander v. Atlantic Coast Line Railroad Company
    Decided September 18, 1919.
    Action for damages; from Charlton superior court—Judge Summerall. September 13, 1918.
    The injuries sued for were alleged to have been received when, in descending from the cab of a locomotive on which he was at work qualifying himself as an engineer, the plaintiff struck with his foot a lump of coal on a step of the locomotive and slipped, striking his leg against the step and then against the exposed end of a. cross-tie. It was alleged that the injuries were due entirely to fault and negligence of the railroad company, (1) because it did not furnish to him a suitable and proper step upon which to descend from the locomotive; (2) because the ties and road-bed where he was injured were unsafe and dangerous to persons rightfully on the premises of the company; and (3) because the company did not furnish to him a safe and suitable place in which to perform the duties required of him.
    The petition as amended alleged, in substance: On July 2,1912, W. J. Pamplin, a master mechanic of the said railroad company, gave petitioner written authority to ride upon its engine for the purpose of qualifying as a main-line engineer and learning the road over which petitioner was to run as such engineer. The said written authority was as follows: “Engineer Atlantic Coast Line R. R. Co., Engineers Savannah District. Permit bearer, Mr. P. Z. Alexander, to ride on your engine for the purpose of qualifying for main-line engineer. Yery truly yours, W. J. Pamplin, Master Mechanic, Waycross/ Ga., July 2, 1912.” For the purpose of so learning the line of said railroad company, on July 6, 1912, petitioner was riding engine No. 212, pulling train No. 33 of the Atlantic Coast Line Railroad Company, bound for Jacksonville, and while so riding the engine, when in the town of Folkston, Charlton county, Georgia, the engineer then and there in charge of the engine, whose orders it was his duty to obey, instructed him to fill the main-rod cup with oil. Under the universal custom of the defendant company the engineer in charge of the engine is the supreme authority upon the engine. It is likewise the universal custom observed by the defendant company that when an engineer is riding an engine for the purpose of learning the road, he is under the direction and control of the engineer in charge of the engine, and it is his cftity to obey the said engineer’s orders. Refusal to do so will terminate the employment of the engineer thus learning the road. Petitioner, in order to carry out the engineer’s instructions, took the necessary implements and started down the steps of the engine. The railroad 'company had permitted a large lump of coal, approximately six inches in diameter, to become lodged on the step leading from the cab of the engine, rendering the step dangerous, defective, and a menace to the employees of the company. The road-bed where the engine was then standing was likewise in a dangerous, unsafe, improper, and defective condition, for the reason that dirt had been dug out from between the ties of the road-bed by employees of the railroad company, so that the ends and sides of the ties were uncovered and projected above the ground for a distance of approximately eight inches. The track could have been rendered safe and suitable for the employees of the company by having the spaces between the ties filled with dirt so that the ends of the ties would be approximately flush and level with the ground. In descending from the engine petitioner seized with his hand the grab-iron on the engine and tender, provided for that purpose, and, with his back outward, proceeded to step down from the cab-flooring to the steps, between the cab and the tank on the right-hand side of the engine, thus intending to reach the ground. This was the usual and ordinary way to alight from the cab. On one arm he had a bucket of grease and on the other arm a bucket of water; in one hand he had a monkey-wrench; he was using his free hand and the hand holding the monkey-wrench in holding to the grab-iron on the side of the cab and tender, to assist him in descending. The lump of coal was on the first of two steps making up a set of steps. In stepping from the cab his foot struck the lump of coal on the step, with the result that he was caused to miss his footing and slip to the ground, striking the inside of his right thigh against the step of the engine, and the muscle of the calf of his right leg against the said cross-tie, and inflicting upon him serious injury (described). It was alleged that he was in his proper place, carrying out the orders of his superior, acting in the interest and behalf of the company, and in the exercise of ordinary and reasonable care, did not know of the dangers mentioned above, did not have equal means with the defendant of discovering them, and could not in the exercise of ordinary care have discovered them, and was free from fault; and that his injuries were due entirely to negligence of the defendant, as set out at the beginning of this report.
   Stephens, J.

The petition, construed most strongly against the pleader, failed to set out a cause of action, and the court did not err in dismissing it on general demurrer.

Judgment affirmed.

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

The defendant demurred to the petition specially and generally; the court overruled the special grounds and sustained the general demurrer and dismissed the petition; and the plaintiff excepted. In the brief of counsel for the defendant it is contended that under the allegations of the petition the plaintiff must be treated as a mere volunteer or a licensee, and not as an employee of the railroad company; that it does not appear that he was on the engine as an apprentice or to learn the duties of an engineer, or that the master mechanic had authority to employ him or to permit him to ride on the engine; that the presence of the coal on the step of the engine and the condition of the road-bed did not constitute negligence as to the plaintiff; that his means of knowing of the coal on the step were equal to or better than those of the defendant; that he assumed the risk; that relatively to him the defendant was not under a duty to keep a level road-bed; that the alleged negligence was not the proximate cause of the injury; and that the case falls within the principle of mere accident.

Oliver & Oliver, for plaintiff,

cited: Ga. Railroad v. Hunter, 9 Ga. App. 383; So. Ry. Co. v. Puckett, 16 Ga. App. 551; Fenelon v. So. Ry. Co., 143 Ga. 26; Choctaw &c R. Co. v. Tennessee, 191 U. S. 334 (48 L. ed. 201).

Bennet, Twitty & Reese, Wilson & Bennet, for defendant,

cited: Civil Code (1910), §§ 3476, 3131; 1 Labatt, M. & S., 9, 16-17, 46; Wadley So. Ry. Co. v. Durden, 142 Ga. 361; Cen. of Ga. Ry. Co. v. Mullins, 7 Ga. App. 381; Naylor v. Chickamauga Quarry &c. Co., 19 Ga. App. 714; Bird v. Savannah Electric Co., 16 Ga. App. 453; Stewart v. S. A. L. Ry., 115 Ga. 624; Lee v. Cen. R. Co., 86 Ga. 231; East Tenn. &c. Ry. Co. v. Reynolds, 93 Ga. 570; Harriman v. Chicago &c. R. Co., 50 L. R. A. (N. S.) 552; Black, Accident Cases, sec. 8; Nelson v. So. Ry. Co. (N. C.), 86 S. E. 1036, and cit.; 3 Labatt, M. & S. (2d ed.), sec. 919; Virginia &c. Co. v. Kiser, 105 Va. 695; Persinger v. Alleghany &c. Co., 102. Va. 350.— Ga. R. v. Hunter, So. Ry. Co. v. Puckett, and Fenelon v. So. Ry. Co., supra, distinguished.


text:
    10163.
    Whatley, administrator, v. Mitchell.
    Decided September 18, 1919.
    Trover; from city court of Monroe—Judge Stone. September 19, 1918.

      R. L. & H. Q. Cox, for plaintiff in error.

      B. W. Roberts, contra.
   Stephens, J.

1. While delivery is essential to a valid gift of personalty, actual manual delivery is not required. The mere fact that the donee of personalty allows possession of the property to remain with the donor, will not necessarily defeat the gift. Accordingly, where the evidence shows that a grandfather, whose grandchild lived in the house with him, had stated that he had given to such grandchild a certain heifer, and the heifer continued to remain on the premises and in the lot of the donor where both the donor and the donee resided, the donee and his wife working for the donor, such evidence is sufficient to authorize the inference that the subject-matter of the alleged gift was delivered to the donee, aaid that the donor parted with his title and relinquished all dominion and ownership over the property, thereby constituting a valid gift.

2. For the reasons above stated the exception to the-charge of the court contained in the sole special ground of the motion for a new trial is without merit.

Judgment affirmed.

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


text:
    10166.
    Carey, next friend, etc., v. Amicable Life Insurance Co.
   Stephens, J.

1. Where a life-insurance policy provides that, “upon failure to pay a premium on or before the date when due, or any note [italics ours] or other obligation given therefor, this policy shall thereupon cease without any action or notice by the company, and all right shall be forfeited to the company, except as herein provided,” the policy becomes forfeited by failure to pay upon maturity a note given in payment of a premium. Stephenson v. Empire Life Insurance Co., 139 Ga. 82 (76 S. E. 592).

Decided September 18, 1919.

Action on insurance policy; from city court of Americus—Judge Harper. October 5, 1918.

Hixon & Pace, for plaintiff.

Ellis, Webb & Ellis, contra.

(a) Under the allegations of the petition in a suit brought by the beneficiaries of a life-insurance policy to recover for the death of- the insured, which occurred on the 25th day of May] 1915, it being alleged that the insurance had paid the first premium, and in full payment of the second annual premium due the 21st day of February, 1914, paid to the insurance company a certain sum of money in part payment thereof and gave to the company a promissory note for the balance, maturing November 1, 1914, and received in return the company’s official receipt, and that before the maturity of the note the insurance company did, for a valuable consideration, extend the date of maturity of such note until February 21, 1915, upon which latter date the note was not paid, and there being no allegation of any tender to the company, or effort by the insured to make payment of the amount due on the note at or before the last-mentioned date, the policy of insurance became forfeited. That the insurance company, through its authorized agent, did, before such note became due, fraudulently procure from the insured a surrender of the policy was no excuse for a failure upon the part of the insured to afterwards pay such note at maturity.

2. The petition set out no cause of action and was properly dismissed on demurrer.

Judgment affirmed.

Broyles, P. J., and Blood-worth, J., concur.


text:
    10177.
    Western and Atlantic Railroad Company v. Jarrett.
   Stephens, J.

1. The trial judge, having fully and fairly instructed the jury upon the law relative to a reduction in damages by reason of contributory negligence on the part of plaintiff, did not err in failing to again instruct the jury in this connection when charging upon plaintiff’s right to recover for pain and suffering.

2. The charge of the court fully and fairly submitted all the issues to the jury and is not subject to any of the exceptions.

3. The evidence authorized the verdict, and no error of law was committed.

See, in this connection, Western & Atlantic R. Co. v. Jarrett, 22 Ga. App. 313 (96 S. E. 17), a suit by the same plaintiff, growing out of the same transaction.

Decided September 18, 1919.

Action for damages; from Bartow superior court—Judge Tarver. September 7, 1918.

Tye, Peeples & Tye, Neel, Finley & Neel, for plaintiff in error.

Atkinson & Born, J. B. Whitaker, contra.

Judgment affirmed.

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


text:
    10187.
    Adams v. Elbert County.
    Decided September 18, 1919.
    Action for damages; from city court of Elberton—Judge Tutt. October 12, 1918.
    The action was for injury to the plaintiff from a fall when an automobile in which he was riding struck the guard-rail of a bridge of the defendant county, and the rail, which was alleged to be rotten and unsafe, gave way and the automobile was precipitated from the bridge. The verdict was for the defendant.
    The extract from the charge to which exception was taken is as follows: “If you believe from the evidence in this case that the automobile in which the plaintiff was riding at the time that he alleges he was injured was being driven and operated by a person under the age of sixteen years, and if you further believe that the plaintiff knew that the said driver was under the age of sixteen years, then I charge you that any negligence of the driver on the occasion under investigation would be imputed to the plaintiff; and if you believe, from the evidence, that the injuries of the plaintiff, if any, were caused by the negligence of the driver, or by the failure of such driver to exercise ordinary care, or that the injuries of the plaintiff could have been avoided by the exercise of ordinary care on the part of the part of the plaintiff or the driver of said car, then the plaintiff can not recover.” It is alleged that this is error because it precludes recovery if the plaintiff knew that the driver was under sixteen years of age; because it fails to submit to the jury the question whether the plaintiff was negligent or not in entering the car driven by a person under the age of sixteen years; because the negligence of the driver is not imputable to 'the plaintiff, it not appearing that he exercised or was under any duty to exercise control over the driver’s actions, and because the question whether he was under such duty was not submitted to the jury.
   Bloodworth, J.

1. When considered in connection with the entire charge of the court and in the light of the evidence, there is no error harmful to the plaintiff in the excerpt from the charge of which complaint is made in the motion for a new trial.

2. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Cook v. McMurria, 19 Ga. App. 491 (91 S. E. 785); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).

3. There is some evidence to support the .verdict, and the judgment is

Affirmed.

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

J. T. Sisk, for plaintiff. Z. B. Rogers, for defendant.


text:
    10197.
    Central of Georgia Railway Company v. Scrivens.
   Stephens, J.

1. In a suit against a connecting carrier in interstate commerce, to recover for damage to goods received by it from a preceding carrier and delivered by the connecting carrier at the point of destination in a damaged condition, proof that the goods were delivered in a good condition to the initial carrier raises a presumption that they were received in a good condition by the connecting carrier. There is nothing in the acts of Congress, including the Carmack amendment of June 29, 1906, c. 3591 (34 Stat. 595, U. S. Comp. St. §§ 8604, 8604 aa), fixing the liability of interstate carriers for goods damaged in transit, which relieves a connecting carrier of this presumption.

2. The presumption that goods delivered in good condition to the initial carrier were in good condition when received by the connecting carrier is not conclusive as a matter of law, but may be rebutted by proof. In the absence of competent evidence rebutting this presumption and showing that the goods were not in good condition when received by the connecting carrier, the evidence is sufficient, where there is proof of the other material allegations in the plaintiS’s petition to support a verdict against the connecting carrier. Capital City Oil Co. v. Central of Ga. Ry. Co., 16 Ga. App. 750 (86 S. E. 57).

(a) Where the only evidence introduced.in rebuttal of this presumption was that of the baggage-master of the connecting carrier, who testified that the goods were received by it from the preceding carrier in bad condition, and that he knew this only from his records, the jury had a right to conclude that the witness was testifying to a conclusion merely, and had no actual personal knowledge of the circumstances. In view of the presumption it cannot be said that as a matter of law this evidence was conclusive of tlie fact that the carrier had received the goods in a bad condition. Nashville, Chattanooga & St. Louis Ry. v. Truitt Co., 17 Ga. App. 236, 240 (86 S. E. 421).

Decided September 18, 1919.

Action for damages; from city court of Americus—Judge Harper. November 2, 1918.

B. T. Ilawkins, Yeomans & Wilkinson, for plaintiff in error.

Hixon & Pace, contra.

3. The charge of the court as a whole instructed the jury the the defendant carrier would not be liable unless the goods were damaged while in the defendant’s possession, and that the presumption as to receipt of the goods in good condition by the defendant was one of fact and subject to rebuttal. This was fairly submitted to the jury. The charge of the court was not erroneous for any reason assigned, and the evidence authorized the verdict.

Judgment affirmed.

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


text:
    10204.
    HARMONY GROVE TELEPHONE CO. v. POTTS.
    1. Objection to interrogatories, on the ground that no entry showing their reception in due course of mail by the postmaster is on the envelope containing them, is properly overruled, in the absence of timely written exception and notice as provided for in the Civil Code (1910), § 5904, where it does not appear that the interrogatories were not in the clerk’s office twenty-four hours prior to the 'trial.
    2. Extraordinary diligence is not required of the bailee under a contract of hire; and on the trial of an action against such a bailee by the bailor it .was error to give in charge to the jury the code definition of such diligence.
    3. On the trial of an action for damages against the hirer of a mule which it was alleged was taken sick while in his possession and was worked, mistreated, and neglected by him until it died, it was error to charge the jury that “in cases of loss the presumption of law is against the bailee, and no excuse avails him unless it was occasioned by the act of God;” and that “in order for a bailee to avail himself of this defense,—the act of God,-—he must establish not only that the act of God occasioned the loss, but that his own negligence did not contribute thereto.” These instructions were taken from code-sections applicable to railroad companies as common carriers and to other like carriers, and were not applicable to the facts of this case. The illness from which the mule dred was not in a legal sense an “act of God.”
    Decided September 18, 1919.
    Action for damages; from city court of Jefferson—Judge Mahaffey. September 10, 1918.

      The verdict was against the defendant; its motion for a new-trial was overruled, and it excepted.

      B. L. J. & S. J. Smith Jr., E. M. & Q. F. Mitchell, for plaintiff in error.

      J. S. Ayers, contra.
   Bloodworth, J.

During the trial objection was made to the opening of certain interrogatories and to the reading of the same to the jury, on the ground that “there was no entry upon said envelope as required by law, showing that the postmaster at Jefferson, Georgia, had received said interrogatories by due course of mail.” The court properly overruled the objection. The record does not show that the interrogatories had been in the clerk’s office less than 34 hours prior to the trial, or that the exception to the execution and return was made in writing and notice given to the opposite party before the case was submitted to the jury. Civil Code of 1910, § 5904; Rogers v. Truett, 73 Ga. 386 (1-a); Roper v. Roberts, 143 Ga. 138 (84 S. E. 553).

Where suit was brought to recover damages from one to whom a mule was hired, the petition alleging that the mule was taken sick while in the possession of the hirer, and that knowing this fact he “continued to work said mule, mistreated, and neglected it until the mule died,” it was error requiring the grant of a new trial for the court to charge the jury on extraordinary diligence (as defined by the Civil Code (1910), § 3473), as follows: “Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. The absence of such diligence is termed slight neglect.” In Evans v. Nail, 1 Ga. App. 45 (57 S. E. 1031), Chief Judge Hill said: “The contract of hire being one of mutual benefit, the hirer is bound only for ordinary diligence, and is responsible only for ordinary negligence. Civil Code [1895], § 3907 [1910, § 3480]; Mayor &c. of Columbus v. Howard, 6 Ga 313. The judge should have confined his instructions on the subject of negligence to- that degree of care which by law was applicable to the ease.”

It was also error to charge: “In eases of loss the presumption of law is against the bailee, and no excuse avails him unless it was occasioned by the act of God. In order for a bailee to avail himself of this defense,—the act of God,—he must establish not only that the act of God occasioned the loss, but that his own negligence did not contribute thereto.” This charge is composed of parts of sections 2712 and 2713 of the Code of 1910, which apply to railroads as common carriers and to other like carriers, and is not applicable to the facts of this case, and was likely to confuse and mislead the jury. The illness from which the mule died was not in a legal sense “the act of God.” In Central Line of Boats v. Lowe, 50 Ga. 509, Judge McCay said (p. 511) : “There is, doubtless, a distinction between an act of God and an unavoidable accident. The former covers only natural accidents, such as lightning, earthquakes, tempests, and the like, and not accidents arising from the negligence or act of man.” See also Cannon v. Hunt, 113 Ga. 509 (38 S. E. 983).

The remaining grounds of the motion for a new trial are of such character that it is not necessary to pass upon them. Indeed, most of them are not discussed in the brief of plaintiff in error.

Judgment reversed.

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


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

text:
    10531.
    BAZEMORE v. STEPHENSON.
    Such a “wilful and malicious injury” as would constitute an exception to the liabilities discharged in bankruptcy under section 17a (2) of the bankruptcy act of July 1, 1898, is not shown by the evidence in this case as to the collision between the automobile driven by the defendant and the automobile in which the plaintiff was riding; and it was proper to direct a verdict sustaining the defendant’s plea of discharge in bankruptcy.
    Decided September 18, 1919.
    Action for damages; from city court of Atlanta—Judge Reid. March 22,1919.
    Stephenson and another were sued for damages on account of a collision between an automobile which he was driving and an automobile in which the plaintiff was riding. The petition as amended alleged that the acts complained of were done wrongfully and intentionally. Stephenson pleaded, among other things, that after the filing of this suit he filed a petition in voluntary bankruptcy, in which the plaintiff in this case was duly scheduled as a creditor, and that a discharge in bankruptcy was granted to him as to the alleged liability to the plaintiff. At the trial the court, on the conclusion of the evidence, directed a verdict in favor of Stephenson, on the ground that his discharge in bankruptcy was a discharge from all liability that might have arisen in this ease. The plaintiff, in his motion for a new trial, the refusal of which is assigned as error, contended that the discharge in bankruptcy was not a discharge from the liability charged in this case, for the reason that section it of the 'bankruptcy act excludes from the benefits of a discharge liabilities for “wilful and malicious injuries to the person or property of another;” and that the evidence in this case showed a wilful and malicious injury.

      Mayson &■ Johnson, for plaintiff.

      Little, Poioell, Smith & Goldstein, for defendant.
   Broyles, P. J.

The sole question in this case is whether the evidence authorized a finding by the jury that the defendant wilfully and intentionally drove his automobile against the automobile in which the plaintiff was riding, so as to constitute such a malicious tort as would come within subdivision sec. 17 a (2) of the bankruptcy act of July 1, 1898 (30 Stat. 550, U.. S. Comp. St. § 9601). The records fails to disclose any evidence which would have authorized such a finding. The plaintiff himself testified in effect that he did not know and could not say that the defendant deliberately or intentionally did so. The court, therefore, did not err in directing a verdict for the defendant. See, in this connection, Collier on Bankruptcy (11th ed.), 402, 441; Tinker v. Coldwell, 193 U. S. 473, 481 (24 Sup. Ct. 505, 48 L. ed. 758); 11 Am. B. R. 568).

Judgment affirmed.

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

Stephens, J.,

dissenting. If there is any evidence to authorize the inference that the defendant wilfully and intentionally drove his automobile into the automobile in which the plaintiff was riding, there would then be an issue of fact for determination by the jury, and the direction of a verdict by the trial judge was error. There is evidence in this case that the two automobiles were approaching each other along a public road; that the defendant held his course and failed to turn out, although there was ample room in the road for him to do so and a suitable road-bed to his right for his ear to pass over; that the defendant was driving the larger car{ and that the defendant, after the collision, continued on without stopping. Without reference to the rest of the evidence, this it would seem is sufficient to authorize the inference that the defendant was acting wilfully and intentionally. “Assault and battery may be committed by striking another with an automobile intentionally, or by driving the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety. Dennard v. State, 14 Ga. App. 485 (81 S. E. 378). And see Gallery v. State, 92 Ga. 464 (2) (17 S. E. 863); Collier v. State, 39 Ga. 31, 34 [99 Am. D. 449]. The same is true where, under like circumstances, the automobile is driven against another vehicle in-which persons are riding, whereby the collision occasions bruises, blows, and similar physical injuries to persons in the vehicle so struck.” Tift v. State, 17 Ga. App. 663 (88 S. E. 41), and authorities there cited. In the Dennard case, supra, it was said: “A reckless disregard of human life may be the equivalent of a specific intent to kill; and whether it existed . . was a question for the jury.”

That the plaintiff in this ease was unable to^say that the defendant deliberately and intentionally drove into him does not eliminate the issue as raised by the other testimony in the case.


author: Brovles, P. 'J.

text:
    10534.
    Simms v. Massengale Advertising Agency.
    Decided September 18, 1919,
   Brovles, P. 'J.

1. The court did not err in admitting in evidence the testimony of an officer of the plaintiff advertising agency, that credit for the account sued on was given to the defendant and not to the milling company of which the defendant was vice-president. Reynolds v. Simpson, 74 Ga. 454 (1), 460.

2. It does not appear, from the evidence, that there were two separate and distinct transactions, or “orders,” between the plaintiff and the defendant, but it appeared that the defendant guaranteed the payment of a single contract for newspaper advertising, and later, by mutual consent, there was merely a substitution of certain newspapers for those originally named in the order. The doctrine, therefore, that where a plaintiff mingles items upon which he is entitled to recover with items upon which he is not entitled to recover, and does not furnish to the jury means to separate them, a verdict and judgment in his favor is contrary to law, is not applicable in this case.

3. The defendant paid a part of the account, and the verdict for the balance was authorized by the evidence.

Judgment affirmed.

Bloodworth and Stephens, JJ., concuf.

Complaint; from Fulton superior court—Judge Ellis. January 9,1919.

Little, Powell, Smith & Goldstein, for plaintiff in error.

Rosser, Slaton, Phillips & Hopkins, contra.


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

text:
    10537.
    WOODARD v. STAMOS & STRATOS.
    The sole issue raised by the dispossessory warrant and the counter-affidavit was whether the defendant was holding the premises over and beyond the term of his lease; and no valid defense was presented by his testimony as to an oral promise to give him a new lease, which was never executed. The court did not err in directing a verdict for the plaintiffs. ¿

    Decided September 18, 1919.
    Eviction; from Laurens superior court—Judge Kent. April 5, 1919.

      R. Earl Camp, for plaintiff in error.
   Broyles, P. J.

1. The sole issue raised by the dispossessory warrant and the counter-affidavit was whether the defendant was holding the premsies over and beyond the term of his lease. • On this issue the evidence demanded a finding in favor of the plaintiffs, and the court did not err in directing a verdict for them.

2. The lease under which the defendant held the property expired on January 1, 1919. -The evidence does not authorize a finding that a new lease-contract was made by the parties, but shows merely that in September, 1918, one of the two members of the plaintiff partnership verbally promised the defendant that if the defendant would surrender part of the property, he would give him a three-year lease after the expiration of the then-exasting lease; and that on the strength of this promise and the reduction of his rent l)y $15 per month the defendant relinquished a part of the property to the partnership. Conceding that this partner had a right to make such a lease on behalf of the partnership (which right, however, was expressly denied by the undisputed testimony of the other partner), the evidence clearly showed that no actual lease-contract was made, but a mere promise to contract at a future date. See, in this connection, Steininger v. Williams, 63 Ga. 476 (3). The defendant himself testified as follows; “I did not continue to use the store under the agreement to lease for three years, but remained there under the old lease from Sheehan, expiring January 1, 19.19; and in giving back the keys and surrendering the corner I was operating under the lease expiring January 1, 1919.” Under this ruling the motion for a new trial is without merit.

Judgment affirmed.

Bloodworih, J., concurs.' Stephens, J., dissents.

Stephens, J.,

dissenting. I am of the opinion that the surrender by the tenant of a part of the rented premises before the expiration of his lease, in consideration of the verbal agreement of his landlord to lease to him the remaining part of the premises occupied by him and not surrendered, for a period of three years from the date of the expiration of the old lease, and the acceptance by the landlord of such surrender and the actual taking over by him of the part of the premises surrendered by the tenant, constituted a complete contract at the-time, to commence in the future, and was not a mere promise to contract at a future date. Steininger v. Williams, 63 Ga. 475 (1). While this perhaps constituted such a part performance as would take the contract out of the operation of the statute of frauds, yet, being a parol agreement respecting the renting of lands for a period longer than one year, it became, under section 3693 of the Civil Code, a tenancy at will, to commence on January 1, 1919. The tenant could on that date,— the date of the issuance of the warrant to disposses him,—while in possession as a tenant at will, be dispossessed as a tenant holding over. It was error, therefore, to direct a verdict in favor of the, landlord.


text:
    10540.
    Davis v. Potts.
   Broyles, P. J.

I. The defendant’s plea having admitted the execution of the note sued on and the right of possession thereof in the plaintiff, and the defendant, prior to the introduction of any evidence, having demanded the opening and conclusion, the' court erred in denying him this right and allowing the plaintiff first to introduce his evidence. However, this error does not require a new trial, since upon the eonelusion of the plaintiff’s evidence the court reversed its ruling and gave the defendant the opening and conclusion of the argument.

2. The error in submitting to the jury the question of attorney’s fees was cured by the plaintiff’s writing off from the judgment, upon direction of the court, the amount found for attorney’s fees.

Decided September 18, 1919.

Complaint; from city court of Newnan—Judge Post. April 7, 1919.

J. Q. Newman, Stanford Arnold, for plaintiff in error.

Garland M. Jones, contra.

3. Tlie court did not err in refusing to direct a verdict for the defendant. It has been repeatedly held by this conrt and the Supreme Court that the refusal to direct a verdict is never error.

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

Judgment affirmed.

Bloodioorth and Stephens, JJ., eoneur.


text:
    10627.
    Winship v. The State.
    Decided September 18, 1919.
    Accusation of operating automobile while under'the influence of intoxicating liquor; from city court of Macon—Judge G-uerry. May 13, 1919.

      Roland Ellis, O. A. Glawson, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, P. J.

1. The excerpts from the charge of the court, complained of in the first two special grounds of the motion for a new trial, when considered in connection with the entire charge and the facts of the ease, are not erroneous.

2. In the light of the notes of the judge, qualifying his approval of the remaining special grounds of the motion for a new trial, the other assignments of error are without merit.

3. The verdict was authorized by the evidence, and, having been approved by the judge, this court is without authority to set it aside.

Judgment affirmed.

Bloodioorth and Stephens, JJ., eoneur.


text:
    10127.
    Barber v. Atlantic Coast Line Railroad Co.
    Decided September 19, 1919.
    Action for damages; from Grady superior court—Judge Harrell. September 7, 1918.

      W. T. Crawford, W. V. Custer, Bell & Weathers, for plaintiff.

      Pope & Bennet, W. J. Willie, A. P. Cain, for defendant.
   Stephens, J.

1. None of the excerpts from the charge excepted to, when considered in the light of the entire charge and the facts of the case, contains material error.

2. The verdict was authorized by the evidence.

Judgment affirmed.

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


text:
    10134.
    Jones, administrator, et al. v. McMillan.
    Decided September 19, 1919.
    Complaint; from Habersham superior court—Judge J. B. Jones. August 24, 1918.
    J. H. Hicks sued J. W. McMillan for the amount of a due bill alleged to have been made to him by the defendant. McMillan filed an answer, setting up a defense, and in the second paragraph of the answer it is stated that “defendant admits the execution and delivery of said due bill, and that plaintiff is the legal holder thereof, and defendant assumes the burden of proving his defense.” A trial of the case resulted in a verdict and judgment in favor of the plaintiff, a new trial was granted to the defendant, and, the plaintiff having died, his administrator and his widow and his daughter Blanch were substituted as plaintiffs. The defendant filed at a subsequent term of the court an amendment as follows: “And now conies the defendant, and by leave of the court amends his answer and plea in the above-stated case, and by way of amendment strikes paragraph No. 2 of his original answer wherein it is alleged that plaintiff is the legal holder of the due bill sued on. 2. Further answering and for further plea defendant says that plaintiff J. H. Hicks was not the holder or owner of said due bill at the time it was sued on, but same was owned by T. G. Spencer, same having been by said J. B. Hicks sold and endorsed over to said Spencer, and the said Spencer is holding defendant responsible to' him on said due bill.” The amendment was followed by an affidavit of the defendant that “at the time of filing his original answer and plea in the above-stated case ho did not omit the new facts and defense set out in the amended plea and. answer above for the purpose of delay, and the above amendment is not now offered for delay.” The plaintiff demurred on the following grounds: (1) There is no valid defense set forth in said amended plea. (2) The allegations in paragraph 1 of the amended plea are wholly inconsistent with and contradictory to the original plea. (3) The amended plea is not sworn to as required by law. (4) The allegations in paragraph 2 of the amended plea do not set forth any valid reason for the defendant to inquire into the title to the due bill sued on. (5) Paragraph 2 does not set forth any valid reason why the inquiring into the title of the due bill would protect the defendant or let in any defense which he seeks to make. (6) The amended plea does not set forth how T. G. Spencer is holding the defendant responsible for said due bill. (7,) The amended plea does not show by what authority or right the said Spencer holds or claims title to the due bill. (8) The amended plea does not allege why the defendant could not have known or did not know that Spencer claimed to own the due bill at the time the original plea was filed. (9) It is not alleged how Spencer is asserting his rights to the due bill against the defendant, or why a trial of this case will not be a bar to any suit by Spencer. The court overruled the demurrer, and the plaintiff filed exceptions pendente lite, assigning error on this ruling. At the subsequent trial "the pleadings were read to the jury,” and "the plaintiff then put in evidence the year’s support proceedings taken out by Mrs. Lula D. Hicks as widow of J. II. Hicks for herself and minor daughter, Blanch Hicks, and the return of the appraisers . setting apart as a portion of the year’s support the debt represented by the due bill sued on in this case and the judgment based thereon, valued at $100, which year’s support was by the court of ordinary duly approved and admitted to record.” The plaintiffs then rested their case, and the court, on motion of the defendant, granted a nonsuit. In the final bill of exceptions the plaintiffs assign error on their exceptions pendente lite and say that “the court erred in allowing said amendment and overruling said demurrer on all the grounds thereto made at the time said amendment was offered and before it was allowed and filed, as fully appears in the exceptions pendente lite'of record.” Also: “To the granting of the non-suit of the plaintiff’s case' . . the plaintiffs then and -there excepted and now except and assign said ruling and judgment, nonsuiting said case as error.”
   Stephens, J.

1. The motion to dismiss the hill of exceptions, upon the ground that the assignments of error therein are not properly made, is without merit, and is therefore denied.

2. The plea of the defendant as amended set forth no legal defense to the plaintiff’s suit, and the court erred in not sustaining the demurrer interposed, and in not striking the entire plea.

3. Tlie error in the ruling upon the demurrer rendered the further proceedings nugatory.

Judgment reversed.

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

J. 0. Edwards & Sons, for plaintiffs,

cited: Civil Code (1910), §§ 4290, 5660, 5775; 100 Ga. 439, 141; 97 Ga. 775; 16 Ga. App. 385; 16 Ga. App. 262; 15 Ga. App. 719 (5); 111 Ga. 143; 89 Ga. 602; 108 Ga. 140, 141; 108 Ga. 494; 4 Ga. App. 775; 140 Ga. 321 (2).

McMillan & Erwin, for defendant,

cited: 101 Ga. 296; 132 Get. 630; 109 Ga. 255; 114 Ga. 627; 135 Ga. 544.


text:
    10140.
    King et al. v. Rodgers et al.

    Decided September 19, 1919.
    Complaint; from Muscogee superior court—Judge Terrell presiding. September 25, 1918.

      Ilalcher & Ilalcher, for plaintiffs in error.

      J. E. Chapman, A. W. Cozart, contra.
   Stephens, J.

1. The court did not err in overruling the exceptions of law to the auditor’s report.

2. The court erred in directing a verdict against the defendant upon the 1st, 2d, 4th, 5th, 6th, and 7th exceptions of facts to the auditor’s report, and in thereafter refusing to grant a new trial.

Judgment reversed.

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


text:
    10165.
    Webb et al. v. Slaton, Governor.
    Decided September 19, 1919.
    Action on bond; from Brooks superior court—Judge Tboinas. September 14, 1918.

      Éennet & Harrell, Branch & Snow, for plaintiffs in error.

      C. E. Hay, solicitor-general, E. E. Wilcox, contra.
   Bloodworth, J.

1. Complaint is made that the court erred in admitting certain documentary evidence. This evidence is not set out either literally or in substance in the motion for a new trial, or attached thereto as an exhibit. Under the repeated and uniform rulings of this court and the Supreme Court, such ground of a motion for a new trial cannot be considered. Walton v. Busby, 147 Ga. 487 (94 S. E. 562); Smith v. Leverett, 22 Ga. App. 290 (2) (96 S. E. 8).

2. The court did not err in any of its rulings on the pleadings, nor in the charge of which complaint is made, nor in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    10181.
    Silver v. Collier.
    Decided September 19, 1919.
    Distraint; from city court of Zebulon—Judge Dupree. August 31, 1918.
    Collier sued out a distress warrant to recover from Silver the-rent of a store; and the defendant filed a counter-affidavit in which he claimed damages on account of alleged negligence on the part of the plaintiff in allowing water to run from pipes opening in an office belonging to the plaintiff over the store rented to the defendant. There was testimony as to damage to goods in the store from water which came from the pipes mentioned, and as to the opening of spigots to drain the pipes, and orders by the plaintiff to open them for that purpose, etc. The trial resulted in a verdict against the defendant for the full amount of the plaintiff’s claim.

      J. M. Smith, for plaintiff in error. J. B. Davis, contra.
   Stephens, J.

Under the facts of this case it was error for the trial judge to instruct the jury that if the landlord kept the store in good repair he would he entitled to recover.

Judgment reversed.

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


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

text:
    10201, 10202.
    SOUTHERN EXPRESS COMPANY v. CHERO-COLA BOTTLING COMPANY; and vice versa.

    1. Alleged error of the judge in erasing at the appearance term a docket entry of default and substituting an entry of "plea filed” was not a sufficient ground for a motion at a subsequent term to strike the defendant’s plea. A plaintiff’s remedy for such error is either to except to the striking of the first entry or to file a direct proceeding to vacate or reform the second entry.
    2. The court erred in admitting in evidence, over the objections of the defendant, the two letters set forth in the bill of exceptions.
    3. With these letters eliminated, the evidence did not demand a finding for the plaintiff, and the court erred in directing a verdict for that party.
    Decided September 19, 1919.
    Rehearing denied October 1, 1919.
    (Certiorari granted by the Supreme Court.)
    Action for damages; from city court of Carrollton—Judge Beall. September 13, 1918.
    The Chero-Cola Bottling Company sued the Southern Express Company for $141 because of damage to certain “Seldon Car” engine cylinders which the plaintiff alleged were delivered to the express company by the Southern Auto & Equipment Company for shipment and shipped to Horton’s' Garage, Carrollton, Georgia, and were damaged while in the defendant’s possession. The defendant in its plea denied the material allegations of the plaintiff’s petition. The action was brought to the March term, 1918, of the city court of Carrollton, and the defendant’s plea was filed at that term, after an entry of default had been made and erased by the judge. The plaintiff filed at the next term of the court (June 5, 1918) a motion to strike the plea, on the ground that the entry of default was a final judgment and could not be set aside and marked out in the manner stated and a plea filed thereafter. When the case came up for trial the judge heard evidence on the motion to strike the plea, and overruled the motion; and in exceptions pendente lite and in a cross-bill of exceptions the plaintiff assigns error on this ruling. On the trial the judge, at the conclusion of the evidence, directed a verdict in favor of the plaintiff, for the amount sued for. The defendant brought the case to this court on exceptions to that judgment and to the admission of certain letters and other testimony.
    The evidence at the trial consisted of testimony of R. A. Jolley, “manager and owner of the plaintiff company,” testimony of W. M. Meadors, who stated that he was “the local agent for the Southern Express Company,” a notice of the plaintiff’s claim, dated December 24, 1917, and the two letters referred to in the decision, one dated February 27, 1918, addressed “Mr. R. H. May,” to which no signature appears, and the other dated March 7, 1918, addressed “Claim Agent Rankin,” and signed “R. H. May, D. General Agent.” Nothing further as to May or Rankin is disclosed by the evidence as set out in the bill of exceptions, but the judge, at the close of his certificate to the bill of exceptions, said: “The letter referred to on page 3 hereof and the way-bill on page 4 both show that R. H. May was Gen. Agt. of Dft. Co.” The notice of claim addressed to the express company and signed by the plaintiff’s attorney referred to the express company’s “way-bill 479 shipped from Atlanta, Ga., by the Southern Auto & Equipment Company to Horton’s Garage” on October 1, 1917. The letter addressed to May was as follows: “Feb. 27, 1918. Mr. R. H. May: Shipper states that shipment left them in good condition. Copy receipt attached. Original receipt $100.00 valuation, and this marked over to $150.00.” The letter to Eankin was as follows:
    “Atlanta, Ga., March 7, 1918.
    “Shipment: Horton’s Garage, Carrollton, Ga., from Southern Auto and Equipment Company, Atlanta, Ga., W/B 479, Oct. 1, 1917.

      "On Way Bill Personal.

    “Claim Agent Eankin.
    “Attached is copy of receipt showing that this shipment was signed for under a declared valuation in the amount of $158.00. Hpon conferring with the Southern Auto & Equipment Company to-day, I am informed that the cylinder blocks were sent to them to be rebored and oversized pistons to be put in. After this work was done the shipment was repacked and returned in good condition. From what I can learn the shipment after it was repaired was practically as good as new, and was worth something like $150.00.
    “E. H. May, D. General Agent.”
    The letters were produced by the defendant in response to notice from the plaintiff. Before their introduction Jolley testified: “I am manager and owner of the plaintiff company. I received some cylinders belonging to the Seldon car of plaintiff; they were shipped to Horton’s Garage from the Southern Auto & Equipment Company, of Atlanta, Ga. They were delivered to me by the defendant company broken, and absolutely worthless except for junk. They were of the value of $141.25. . . They have not paid me for the cylinders. The papers that the defendant has here were sent here to Mr. Meadors; he came to talk the matter over with me. . . He had the file of letters in there from the defendant company; that they had received the claim, had taken the matter up in Atlanta, investigated it with the Southern Auto & Equipment Company, that the cylinders were delivered to the Southern Express Company in good order.” The defendant objected to the testimony as to what was said by Meadors^ on the ground that it was hearsay, and was not relevant and binding as admissions against the defendant; that the evidence did not disclose that Meadors was an agent of the defendant, or, if it did, that he was “such an agent as his admission would amount to an admission by the defendant.” The letter to May was then introduced by the plaintiff over the defendant’s objection that it was not shown what the subject-matter of the letter was, or by whom it was written, or who R. H. May was, and that it was inadmissible because it undertook to show the statement of the shipper and was merely hearsay. The letter signed “R. pi. May, D. General Agent,” was introduced by the plaintiff, over objections to the same effect as those made to the other letter and to Jolley’s testimony. Jolley then testified further as to the condition of the cylinders. Meadors testified for the defendant that he was its local agent and received “this shipment” and delivered it to Mr. Jolley; that it was crated in a plank crate, the planks of which were about as far apart as his hand, that there was no evidence of the crate having had a fall, that he “did not notice this abrasion when it came,” and that he made “an O. IC. delivery,” and it was accepted without exception.
    The certiorari granted by the Supreme Court to review the decision of the Court of Appeals in this case was applied for by the plaintiff, on the ground that the case was controlled by the decision in the case of Albany Pine Producís Go. v. Hercules Manur faciuring Go., 123 Ga. 270, and that the decision in this case did not conform to the ruling in that case.

      Robert 0. & Philip H. Alston, 8. Holderness, for Southern Express Company. Boykin & Boykin, contra.
   Stephens, J.

Upon the call of the appearance docket an entry was made thereon by the trial judge, “In default April 27, 1918.” Later in the day a plea was filed, the attorney for the plaintiff notified thereof, and the entry of “in default” erased by the trial judge, and an entry made by him, “Plea filed April 27th, 1918.” Entries made by the judge on the docket are a part of the proceedings in the case. Brady v. Little, 21 Ga. 132 (4), 135 (4). At the trial term a motion was made to strike the plea because at the time it was filed the case was in default and the judge had erred in striking the entry “in default” and marking “plea filed.” While sections 5654 and 5656 of the Civil Code of 1910 provide a way in which defaults may be opened, yet where the method provided by these sections is not followed and the default is set aside and a new entry made, what is the remedy of the plaintiff? He must either except to the erroneous striking of the first entry, or he must file a direct proceeding to “vacate or reform” the second entry. To the judgment erasing “in default” there was no exception. The motion to strike the plea was not a “direct proceeding to vacate or reform” the entry of “plea filed.” “Entries appropriately made upon the dockets of the superior courts during the pendency of causes, by judges presiding therein, are presumed to represent, truthfully the incidents occurring in the course of litigation; and so long as such entries stand unchallenged by direct proceedings to vacate or reform them, they are not open to collateral explanation or attack.” Thornton v. Perry, 101 Ga. 608 (29 S. E. 24); Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Saffold v. Banks, 69 Ga. 290 (5-a); Smith v. Merchants &c. Bank, 22 Ga. App. 505 (96 S. E. 342). The practice in the city court of Carrollton is the stare as in the superior courts of this State. Ga. L. 1897, p. 438, §§ 13, 17. The only entry on the docket at the trial term being that of “plea filed,” and there being no direct proceedings to vacate or reform this entry, the judge properly refused to strike the plea. In addition it will be noticed that both entries above discussed were made on the same day, and our Supreme Court has said: “At all events a case is not in default unless so entered on the docket by the judge-; and where the entry is marked off or defaced by the judge on the day the appearance docket is called, such marred entry should not have the effect of an Tn default’ judgment. The presumption is that the case was not in default, but that the entry was heedlessly made by the judge through mistake, and that he disfigured the entry with his pen in order to correct his mistake.” Albany Pine Products Co. v. Hercules Mfg. Co., supra.

The court erred in admitting, over the defendant’s objections, the two letters set forth in the bill of exceptions.

The evidence, with the letters above eliminated, did not demand a finding for the plaintiff, and the court erred in directing a verdict for that party.

Judgment on the main bill of exceptions reven-scd; on the cross-bill affb'med.

Bloodworth, J., concurs. Broyles, P. J., dissents.

Broyles, P. J.,

dissenting. At the trial term, upon the hearing of the motion to strike the defendant’s plea from the files of the court, the undisputed evidence, which was admitted without objection, showed'the following facts: The case was returnable to tire March term, 1918, of the city court of Carrollton. When the ease was called, on the day which had been previously fixed for the call of the appearance docket for that term, no plea had been filed by the defendant, and the clerk of the court so announced to the presiding judge. The judge thereupon made the following entry on the docket of the court, to wit: “In default April 27, 1918.” On the same day, but subsequently to the entering of the default judgment and the closing of the docket, the defendant ■ was allowed by the court to file a plea, and the court thereupon scratched out the words “in default,” upon the docket, and marked thereon, “Plea filed April 27, 1918.” While it was not shown in so many words, the undisputed evidence clearly demanded the inference that in opening the default there was no attempt to comply with the provisions of sections 5654 and 5656 of the- Civil Code of 1910. In my opinion the court "erred in overruling the motion to strike the plea. See, in this connection, Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Coker v. Lipscomb, 17 Ga. App. 506 (87 S. E. 704); Longalife Paint Co. v. Williams, 20 Ga. App. 524 (93 S. E. 154). Park’s Ann. Code, §§ 5653, 5654, 5655, 5656, 5661. Under the facts stated above I do not think that this view of the case is contrary to the rule laid down in Saffold v. Banks, Thornton v. Perry, and Smith v. Merchants &c. Bank (cited in the majority opinion), to the effect that entries made by the trial judge upon the docket can not be challenged except by a direct proceeding to vacate or reform them. While the motion in the instant case, to strike the defendant’s plea from the files of the court, may not have constituted, in a narrow and technical sense, a direct proceeding to vacate or reform the entry upon the court’s docket, it amounted in substance and effect to the same thing. In Albany Pine Products Co. v. Hercules Mfg. Co., supra, as in the instant case, the motion was to strike the defendant’s plea, and the facts there were almost identical with those here, except that the evidence in that case did not affirmatively show that the plea was not filed before the enh-y of default was entered upon the doclcet, while in this case that controlling fact was affirmatively shown by the undisputed evidence. In that case the headnote is as follows: “Where it appears that an entry was made by the judge on the docket of ‘in default,’ and it also appears that on the same day the judge defaced the entry by passing his pen through it, in the absence of proof to the con trary such, mutilate# entry will be treated as the correction of an inadvertence, and not as an ‘in default’ judgment” (italics mine). From this headnote and the opinion in that case it clearly appears that if the evidence had affirmatively shown that the plea was not filed until after the judgment of default had been entered on the docket, the “mutilated entry” of '“in default” would have been held to be an “in default judgment,” and woul'd not have been “treated as the correction of an inadvertence.”

The refusal of the court to grant the motion to strike the defendant’s plea deprived the plaintiff of a substantial right, and rendered the further proceedings in the case nugatory. In my opinion the judgment on the cross-bill of exceptions should be reversed, and the main bill of exceptions dismissed.


author: Bloodworth, J. Broyues, P. J.,

text:
    10268.
    McCRACKIN et al. v. THE STATE.
    Decided September 19, 1919.
    Indictment for murder; from Colquitt superior court—Judge Thomas. November 30, 1918.

      'James Humphreys, B. B. Oox, for plaintiff in error.

      C. B. Hay, solicitor-general, contra.
   Bloodworth, J.

1. The accused was trjed for murder and convicted of voluntary manslaughter. Under the facts of the case, as shown by the record, a new trial is demanded because the court erred in charging the jury on voluntary manslaughter. See Coleman v. State, 121 Ga. 594 (49 S. E. 716); Robinson v. State, 109 Ga. 506 (34 S. E. 1017).

2. As the case is to be .tried again, it is unnecessary to pass upon the other assignments of error.

Judgment reversed.

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

Broyues, P. J.,

dissenting. In my opinion the law of voluntary manslaughter was involved in this ease. Some of the evidence for the State showed a voluntary and unlawful homicide. Other evidence for the State showed that the homicide was committed with malice. The evidence for the State, as a whole, established a ease of murder. Parts of the defendants’ statements merely showed that the killing was without malice, either express or implied. Other parts of the statements showed' that the killing was justifiable. The statements, as a whole, showed a case of justifiable homicide. The jury, in a criminal case, however, can believe a part, or parts, of the defendant’s statement and reject other parts. They can also believe a part of the statement”'in preference to the sworn testimony of the State, and reject that part of the State’s evidence which is in conflict with that part of the statement. So, in this case, the jury were authorized to believe that part of the State’s evidence which showed that the killing was voluntary and unlawful, and to reject that part which showed malice, and which was in conflict with those portions of the defendants’ statements' which showed no malice. They also had the power to accept as true those portions of the defendants’ statements which showed that the killing was done without malice, and to reject those portions of the defendants’ statements which showed that the killing was done without malice, and to reject those portions of the statements which showed justifiable homicide. It follows that the jury were authorized, by so combining portions of the State’s evidence and portions of the defendants’ statements, in finding that the homicide was voluntary and unlawful, but without any malice, either express or implied—and every such homicide is voluntary manslaughter. The statements of the defendants showed that an actual unprovoked assault, with a deadly weapon, was made upon them by the deceased immediately preceding the killing. This was sufficient to authorize an inference by the jury ’that the unprovoked assault upon the defendants by the deceased had so suddenly aroused their passion that the killing was the result thereof, and that there was no deliberation or malice upon their part. The court, therefore, did not err in instructing the jury upon the law of voluntary manslaughter.