text:
    9906.
    MAY BROTHERS INCORPORATED et al. v. SROCHI.
    1. Grounds of the motion for a new trial which are not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.
    2. Exceptions in which it is contended that in the plaintiff’s petition a recovery was sought only for mental pain and suffering, and not for a physical injury, are without merit. The petition shows clearly that she sued on account of an assault and battery, praying for compensation for the injuries inflicted', and, by reason of certain aggravating circumstances, praying also for exemplary damages.
    3. The exception that the judge in charging the jury failed to set forth fully and fairly the contentions of the defendants, and “charged at much length and with greater detail the contentions of the plaintiff,” is without merit. The greater length of his statement of the plaintiff’s contentions does not indicate that undue stress was laid upon or undue prominence given to them.
    4,5. Although the defendant’s answer d'enied the plaintiff’s allegation that in the acts in question the defendant Harry May acted as agent of the defendant corporation, yet as there was no evidence to sustain this denial, and it was shown by the testimony of Harry May that at the time of the alleged acts he was an officer of the corporation and in charge of its place of business, it is not cause for a new trial that the court, in the absence of a request to charge the jury as to the law governing the responsibility of a principal for the acts of an agent, omitted to charge on that subject, or that the court charged on the assumption that the act of Harry May in ordering the plaintiff out of the place of business was an act of the corporation.
    6. Viewed in the. light of the entire charge to the jury, the exception tc a part of it, on the ground that the defendant corporation was operating a private business as distinguished from a public utility, and had a right to order the plaintiff out of its place of business, regardless of her belief or state of mind when she entered the place and regardless of the nature and manner of her questions, is not meritorious.
    7. The rule that grounds of a motion for a new trial which are incomplete and can not be understood without reference to another part of the record are not in proper form for consideration applies to the groun'd' that the court erred in charging as follows: “These are the contentions of the parties. If the plaintiff’s theory is correct, she is entitled to recover.”
    Decided November 8, 1918.
    8. As the defendants were sued as joint tort-feasors, and the evidence showed conclusively that if there was any liability they were liable jointly and not separately, there was no harmful error in the charge of the court as to the form of the verdict.
    Action for damages; from Fulton superior court—Judge Pendleton. May 15, 1918. \
    Mrs. Srochi sued May Brothers Incorporated and Harry May, “an officer, agent, and employee of said corporation,” “as joint tort-feasors.” The petition alleges in substance that the defendants injured and damaged the plaintiff in the sum of'$5,000, by reason of the following facts: The plaintiff left with the defendant corporation two earrings, with direction that two diamonds be taken out of them and placed in a finger-ring, and on a subsequent day went to the defendant’s place of business to get the ring. The defendant corporation, through defendant Harry May, delivered to her a ring which he represented to her to contain the diamonds originally in her earrings, and she paid for it and left the place. On examination of the ring she was not satisfied that the diamonds in it were thpse originally in her earrings, and she-had them examined by a jeweler, who reported that one diamond was defective and that one was smaller than the other. The diamonds in her earrings were not defective and were of the same size. She went back to the defendant’s place of business and asked if it was not possible that the jeweler who had placed the diamonds in the ring had made a mistake and put in the wrong stones. Defendant Harry May immediately grabbed her by her arm, jerked her towards the door, cursed her, and told her to “get out” of there, holding the door open and yelling at her in a loud voice. She was thus ejected from the defendant’s premises forcibly, with insults and curses. This language was used and this conduct occurred in the presence and hearing of third persons, who witnessed her humiliation by reason of this treatment. There was no reasonable cause or provocation for such treatment. “Said assault and battery arose out of and in connection with the business of defendant corporation, which defendant May, as its agent, had authority to transact.” Plaintiff was greatly humiliated, shamed, and mortified, and her feelings deeply hurt by reason of defendant’s unprovoked assault. She “prays for compensation for the injuries and damages wrongfully inflicted upon her by defendants as set forth hereinbefore, and also, by reason of the aggravating circumstances hereinbefore set forth in the acts and intentions of defendants, petitioner prays for punitive or exemplary damages as provided by law.”
    The trial resulted in a verdict in favor of the plaintiff for $500. The defendants made a motion for a new trial, which was overruled, and they excepted.
    Cited in the brief for plaintiffs in error, as to their right to require the plaintiff to leave their place of business: Cooley on
    Torts, Chap. 10, subtitle “Implied licenses;” 17 Ruling Case Law, 566; Breitenbach v. Trowbridge, 64 Mich. 393 (8 Am. State R. 830, 31 N. W. 402); Woodman v. Howell, 45 Ill. 367 (92 Am. Dec. 221).

      Albert E. Mayer, for plaintiffs in error.

      William A. Fuller, Troutman & Troutman, contra.
   Wade, C. J.

The general grounds of the original motion for a new trial, and grounds 1 and. 9 of the amendment to the motion, not being referred to in the briefs of counsel for the plaintiffs in error, will be treated as abandoned.

It is complained in ground 2 of the amendment to the motion for a new trial that the verdict is contrary to law because the plaintiff in her petition seeks to recover only for mental pain and suffering, and not for any physical injury. This exception is without merit, since the petition (paragraphs 10 and 11) shows clearly that the plaintiff sued for an unprovoked assault and battery, praying “compensation for the injuries inflicted,” and, by reason of certain alleged aggravating circumstances, asked for punitive or exemplary damages. See Civil Code (1910), §§ 4422, 4503; Berkner v. Dannenberg, 116 Ga. 954 (43 S. E. 463, 60 L. R. A. 559). This ruling applies also to ground 7, as to the charge of the court.

It is complained that the judge in charging the jury failed to set forth fully and fairly the contention of the defendants, whereas he “charged at. much greater length and with greater detail the contentions of plaintiff.” This exception is likewise without merit. “In the instruction given the court stated the contentions of the parties fairly and with sufficient clearness and fullness. The mere fact that the contentions of the plaintiff were stated at more length than those of the defendant did not indicate that undue stress was laid upon, or undue prominence given to, the former. Millen, &c R. Co. v. Allen, 130 Ga. 656 (61 S. E. 511).” Phinizy v. Bush, 135 Ga. 678 (3) (70 S. E. 243). See also Atlanta Con. St. Ry. Co. v. Bagwell, 107 Ga. 157 (33 S. E. 191).

Error is assigned on the following excerpt from the charge of the.court, as to contentions of the defendants: “They say the diamonds were brought there and that they were employed to change them into a ring, and that they did change them into a ring, and that subsequently the- plaintiff came back and in an offensive manner charged them with intentionally substituting the diamonds, that the diamonds were those that she had left, and that this was maliciously false, and that they ordered her out of their place of business, but did not touch her and did not use any opprobrious language to her.” It is alleged that this was error, because “nowhere in their answer, nor in their testimony, do the defendants set up that defendant Harry May was acting within the scope of his employment, or was acting as agent for defendant May Brothers Inc., when he ordered the plaintiff out of the place of - business of May Brothers Inc.,” and that the court’s statement of contentions was so worded as to convey the meaning that the defendants admitted that the act of Harry May was the act of the defendant corporation. This exception is fully answered by the testimony of Harry May, which shows clearly that he was in the place of business of the defendant corporation, transacting the business of the corporation, and acting within the scope_ of his employment, when the alleged assault and battery was committed. .

The 10th ground assigns error in that “the court nowhere in its charge instructed - the jury as to the law governing principal and agent, nor as to the law governing thé responsibility of a principal for the acts of his agent.” The movants contend that the omission so to charge the jury was error for the reason that the petition alleges that the acts of the defendant Harry May were committed by him as agent of the defendant May Brothers Inc., and that this allegation was expressly denied by the answer. There is no merit in this exception. Although.it is true that the defendants’ answer denied the allegation as to agency, no evidence whatever was submitted to sustain such deniel, but, to the contrary, the only reasonable' and intelligent construction that can be placed on the testimony of the defendant Harry May is that, at the time of the alleged controversy, he was an officer of the defendant corporation, in charge of its place of business, and therefore its lawfully constituted agent to transact the business of the corporation. Under these circumstances it was at least incumbent upon the defendants to request in writing a proper charge upon the subject of agency, before it could be said that an omission to charge was reversible error.

Error is assigned upon the following excerpt from the charge: “If the plaintiff’s contention in the case is correct, and she believed that the diamonds she had left were not the ones that were returned to her, she had a right to go to the defendant’s place of business -and ask them, in a proper manner, if it were possible that a mistake had occurred, and if she went in ,a proper manner and asked them if it were not possible that a mistake had occurred, and did not charge them with intentionally having substituted the diamonds, she had a right to do that; and if she did that and nothing more, they had no right to order her out of the place of business, and had no right to touch her.” The exception taken to this excerpt is that it was erroneous “because defendant, May Brothers Inc. were operating a private business, as distinguished from a public utility, and that they had the right to order plaintiff out of their place of business, regardless of the belief or state of mind of plaintiff when she entered the place of business of May Brothers Inc., and'regardless of the nature and manner of her questions.” This contention is without merit when viewed in connection with the particular facts of the case" and with the entire charge, as the language of the excerpt was followed immediately by instructions that “If they put their hands on her, any physical touch on her, that was an assault and battery, was a physical injury for which she would have a right to recover. If the plaintiff’s contention is not true, and if it be true that she went back and in an offensive manner charged them with intentionally substituting the diamonds and that was not true, that they had not substituted the diamonds, they had a right to order her out of the place of .business, and if she did not go they had a right to use such force-as was necessary to put her out; but if she did not decline to go, they- had no right to touch her or use any force, although she might have been offensive to them. They had no right to use force unless she declined to go after they had ordered her to go. Id: this charge was true and they had made a mistake and substituted the diamonds, they had no right to order her out; she had a right to ask them if they had made a mistake, provided she did it in a proper manner, without any charge that they had intentionally substituted the diamonds.”

Ground 6 of the motion for a new trial complains that the court erred in charging the jury as follows: “Those are the contentions of the parties. If the plaintiff’s theory is correct, she is entitled to recover.” This ground is incomplete and can not be understood, standing alone and without reference to other parts of the charge. A ground which is not complete and understandable without examination of the charge of the court is not in proper form for consideration. Brown v. Smith-Hall Grocery Co., 146 Ga. 157 (4), 160 (91 S. E. 33).

It is complained that the court erred in charging the jury as follows: “If you find for the plaintiff, she would have a right to recover against both the defendants, and if you find that she is not entitled to recover, the form of your verdict would be: ‘We, the jury, find for the defendants;’ ” the error assigned being that where, 'as in this case, there are joint defendants, it is error to charge the jury without qualification that the plaintiff, if she recovers, can recover against doth defendants. This charge, if error at all, was harmless, since the action was against two defendants as joint tort-feasors, and the evidence adduced on the trial shows conclusively that the defendants, if liable, would be liable jointly and not separately. /

Judgment affirmed.

Jenkins and Luke, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    9522.
    SPARKS v. NATIONAL UNION FIRE INSURANCE COMPANY.
    Where a policy of fire insurance covering certain household furniture stated that the property described therein was insured only while contained in a designated building, “and not elsewhere,” and the policy further provided that “no officer, agent, or other representative of this company shall have the power to waive any provision or condition of ■this policy, except such as by the terms of this policy may he the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or he claimed by the insured unless so written or attached,” the agent representing the company when the policy was issued had no power to 'bind the company by subsequently giving parol ■ permission for the removal of the insured property to a place other than that designated in the policy; nor would the mere promise of such an agent, while in possession of the policy, that he would thereafter indorse the removal thereon, be sufficient of itself to change the rule, where the promise was not effectuated and no consent was in fact either written upon the policy or attached to it, as required by its terms.
    Decided November 12, 1918.
    Action on insurance policy; from city court of Thomasville— Judge W. H. Hammond. January 14, 1918.
    This was a suit on an insurance policy covering certain household furniture. The policy states that the property described therein is insured only while contained in the dwelling house situated at 303 N. Dawson St., Thomasville, Ga., “and not elsewhere.” From the plaintiff’s evidence it appears that on January 29th, 1917, the dwelling house described, in which the insured goods were stored, was- partially destroyed by fire, together with a portion of the goods thus insured; that the roof of the house was partially burned, and that in order to protect from rain such of the goods in the house as were not destroyed it was necessary to remove them to a place of safety; and, with the approval of the defendant’s agent, the heavy furniture was removed and placed in a storage house, and the other goods insured were removed to the Stuart Hotel in the same city; that on February 13, 1917, that hotel and goods of the value of $299.75 which .the plaintiff had removed to it were destroyed by ffre; and it is to recover this sum that the present suit was brought. It is alleged that before the goods were removed to the hotel the plaintiff obtained the consent of the defendant, through its duly authorized agent, to the removal, and that tlie plaintiff removed the said property “in pursuance of said parol agreement or contract, relying solely upon the consent of defendant and the contract of defendant.” By amendment, the plaintiff alleged, that the reason the goods were removed was that they were endangered by fire and required removal; that within five days from the date of removal he approached the defendant’s agent, who as such agent had the policy in his possession, and requested that he indorse the removal on the policy in‘writing, and he promised to do so, but he failed to keep the promise; and that the plaintiff thought the indorsement had been made, until the fire, occurred. He testified that within the five-days period provided for by the terms of the policy he went to Mr. Parker, the defendant’s agent, and requested him to indorse in writing upon the policy the removal of the goods from 303 North Dawson Street to the Stuart Hotel, since it was impossible to repair the dwelling house at 303 North Dawson Street within-that time;, that the agent promised to make such written indorsement upon the policy, and that on January 29, 1917, he left the policy with the agent for the purpose of having the agent make.the indorsement thereon, and for the purpose of getting an adjustment of the loss sustained at 303 North Dawson Street. He testified that it was "the general custom at Thomas-ville, Ga., for the .agent of an insurance company to indorse removal on the policy when the holder of the policy moved goods that were insured from one house to another;” that he had at previous times held policies with the defendant, and that its agent, whenever he moved, indorsed the removal on the policy when he carried it to the agent and so instructed him. He further testified : • “I don’t know whether or not the company’s agent, Mr. Parker, had. any authority except what is stated in the policy. I don’t know whether or not the defendant company had any knowledge of Mr. Parker’s custom in such matters, or of any local custom.” He further testified that the loss sustained by reason of the first fire was adjusted by the defendant, but that, on demand for payment of the loss sustained in the second fire, the defendant refused to pay it, stating that the policy had been cancelled, and refunding to him $2.25 as unearned premium.
    One of the conditions of the policy sued upon is as follows:. “If property covered by this policy is' so endangered by fire as to require removal to a place of safety, and is so removed, that part of this policy in excess of property remaining in the origina location shall, for the ensuing five days only, cover the property s removed in the new location. . .” The policy provides also that “This policy is made and accepted subject to the stipulations and conditions- printed on back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy be claimed by the insured unless so written or attached.”
    On the conclusion of the plaintiff’s testimony the' court directed a verdict in favor of the defendant. The plaintiff made a motion for a new trial, upon general grounds only, which was overruled, and to this ruling he excepted.

      P. C. Andrews, for plaintiff.

      C. E. Hay, for defendant.
   Jenkins, J.

(After stating the foregoing facts). It will be seen' by the terms of the policy sued upon that the goods therein named were insured only while contained in the dwelling house situated at 303 North Dawson Street, Thomasville, Georgia, “and not elsewhere,” except that in case of fire, where the goods insured were so endangered as to require removal to a place of safety, the goods thus removed to the new location were covered by the policy for the ensuing five days only. Thus, under the terms of the policy, the plaintiff’s goods which were removed to the Stúart Hotel on January 39, 1917, were protected by the policy for the' ensuing five days only. The-evidence shows, however, that the goods thus removed were destroyed by fire on February 13, 1917, fifteen days after their removal. The plaintiff seeks' to luid the company liable under the alleged parol consent of the agent of the insurer to the removal, and more especially by .his subsequent parol promise to indorse such removal in writing upon the policy. Under the terms of the policy, however, the insured was put upon notice that no agent-bad authority to waive any condition of the policy, except in writing indorsed upon or attached to the policy; and the insured therefore has no right to rely upon and waiver not made in that manner. Simonton v. Liverpool &c. Insurance Co., 51 Ga. 76; Lippman v. Ætna Insurance Co., 108 Ga. 393 (33 S. E. 897, 75 Am. St. E. 63). Furthermore, sections 3404 and 3470 of the Civil Code (1910) provide that a contract of lire insurance, to be binding, must be in writing, and a contract which a statute requires to be in writing can not exist partly in parol and partly in writing, and an agreement to alter such a contract must also be in writing. Athens Mutual Insurance Co. v. Evans, 133 Ga. 703 (64 S. E. 993). Lippman v. Ætna Insurance Co., supra.

While it is true that in the case of Western Assurance Co. v Williams, 94 Ga. 138 (31 S. E. 370), it was held that “The consent of a fire insurance company, given, whether in writing or in parol, by its duly authorized agent, and acted upon by the insured, that the goods insured might be moved into another building without vitiating the policy, is, if sufficiently proved, binding upon the company notwithstanding stipulations in the policy that bio officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached/ ” the Supreme Court was there dealing with the question raised upon the refusal of the lower court to sustain a demurrer to a petition wherein it was alleged that the. waiver was made in writing by a duly authorized agent of the defendant. Mr. Justice Simmons, speaking for the court, said: “Although this clause of the policy excludes any inference that the powers of the agent extend to the waiver of conditions contained in the policy, except in the mode prescribed therein, yet it may be shown that such authority was-in fact granted; and the waiver, whether in writing or parol; when given by a duly authorized agent and acted upon by the insured,- is, if sufficiently proved, binding upon the company, notwithstanding the stipulations above quoted. This clause put the insured upon notice that the agent has no authority to waive a condition of the policy except in writing, attached to the policy, and the insured would have no' right to rely upon any waiver not made in that manner, unless it could be shown that the company did’ in fact authorize the agent to make the waiver otherwise. To establish such authority on the part of the agent, the insured would have to show that it was expressly granted by the company in the given instance, or would have to show some previous course of dealing in similar cases by the agent with the company’s consent, manifested by ratification or otherwise.” The evidence to the plaintiff, in this case fails to show an express grant of such authority by the company in this instance, or any previous course of dealing in similar eases by the agent with the ■ company’s consent, manifested by ratification or otherwise, but, to the contrary, the evidence shows that it was the general custom of the agent at this place to indorse such a removal in writing upon the policy. So far as appears from the report in the cases of City Fire Insurance Co. v. Carrugi, 41 Ga. 660, and Clay v. Phœnix Insurance Co., 97 Ga. 44 (22 S. E. 901), the policies there involved contained no such express limitation upon the authority of the agent as is contained in the policy sued upon in this case, ánd what was there held is therefore not in conflict with the ruling here made. See Lippman v. Ætna Insurance Co., supra, and Johnson v. Ætna Insurance Co., 123 Ga. 404, 409 (51 S. E. 339, 107 Am. St. E. 92).

Counsel for the plaintiff insist that the defendant is estopped from setting up the defense relied on in this case, by reason of the fact that out of the premium paid by the plaintiff the defendant-retained an amount sufficient to include the date on which the loss is alleged to have occurred, when the agent of the defendant had notice that the goods had-in fact been removed. Even if such an amount was retained by the defendant, this would not estop it from setting up this defense. ' It is true that it is a' well-settled principle of law that notice to a duly authorized agent of an insurance company, when given at the time the policy is issued, is notice to the company; and had the policy in this ease been issued by the defendant with notice to its agent, at the time the policy was issued, that the goods thereby insured were not contained in the. house therein specified, and had the company received and retained the premium with such notice to the agent, it would be estopped from setting up such defense; but this is not the case here, and the question of estoppel is not involved. Johnson v. Ætna Insurance Co., supra. The contract of insurance in this case had already been made, and both parties were on notice as to its terms. The insured was bound to know what were the rights of the company, and that none of them could be relinquished save in the manner pointed out-in the policy; and he on his part can not be heard to urge that there was a waiver by the company, unless it was made in the manner required.

Judgment affirmed.

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


author: Luke, J.

text:
    9541.
    Moultrie Packing Company, v. Atlanta Mutual' Association.
    Decided November 11, 1918.
    Affidavit of illegality; from Colquitt superior court—Judge Thomas. January 22, 1918.
    In the briefs of counsel it is stated that the question for decision is whether affidavit of'illegality or an equitable proceeding is the proper remedy. Counsel for plaintiff in error cited: Platen v. Byck, 50 Gg. 245; 20 Cyc. 1199; Bartrom v. Collins Mfg. Co., 69 Ga. 751; Rich v. Kiser, 61 Ga. 370; Mitchell v. Cooper, 73 Ga. 796; Bowen v. Groover, 77 Ga. 196 (9a). Cited contra: Green v. Oliphant, 64 Ga. 566; Tumlin v. O’Bryan, 68 Ga. 65; Harbig v. Freund, 69 Ga. 184; Hood v. Parker, 63 Ga. 510.

      Shipp & Kline, for plaintiff in error.

      P. Q. Bryan, J. L. Dowling, contra.
   Luke, J.

A garnishee who had not answered could not hy affidavit of illegality arrest an execution and set aside a judgment, upon the ground that before its rendition against the garnishee as being in default, the defendant had paid to the attorney for the plaintiff in ft. fa. a part of the claim and had given him a check and' note to cover the balance. • Affidavit of illegality is not the proper remedy in such a ease. Tumlin v. O’Bryan, 68 Ga. 65; Lynch v. Gannon, 57 Ga. 608; Civil Code (1910), § 5311. The court did not err in sustaining the demurrer to the affidavit of illegality.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9544.
    Hillside Cotton Mills v. Ellis.
   Jenkins, J.

1. A public highway may be created in four ways: (1) by a legislative enactment; (2) by formal proceeding of the county authorities establishing it; (3) by prescription; (4) by dedication. Where dedication is relied on, it may be either express or implied. Where the dedication is implied, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift, and such presumption arises where there is proof of such use for a period of seven years, accompanied by evidence of such acquiescence on the part of the owner as would manifest his intention to make the gift. Healey v. Atlanta, 125 Ga. 736 (54 S. E. 749) ; Johnson v. State, 1 Ga. App. 195 ( 58 S. E. 265). Where the dedication is express, as where the owner of the soil either gives it by direct language or performs some such act as laying it out as a street and devoting it to the exclusive use of the public, and the same is so used for such a length of time that the public accommodation or private rights would be materially affected by an interruption of the enjoyment, the dedication becomes effectual, even though such period of seven years has not elapsed. Davis v. State, 9 Ga. App. 430 (71 S. E. 603).

2. Dedication, however, be it express or be it implied, and even though it be accompanied by general and continued adverse use'by'the traveling public, will never become sufficient, under the rule obtaining in this State, to impress upon the road the character of being a public one, and thus impose upon the county authorities the duties and responsibilities incident thereto; but before a road', no matter in what manner it may have been dedicated to the public, shall become a public highway, there must be some act on the part of the duly constituted county authorities which will amount to an acceptance of it as such on their part. Such acceptance need not necessarily be directly made. It may itself be implied. Work and maintenance of such a road as a public highway by the legally constituted authorities is the most usual method of manifesting their acceptance; but the exercise of other dominion over it, or the. assertion of claim thereto by such authorities may amount to such recognition of the dedication as to indicate acceptance. Penick v. County of Morgan, 131 Ga. 385 (62 S. E. 300); McCoy v. Central Railway Co., 131 Ga. 378 (62 S. E. 297).

3. Plaintiff’s petition, both as originally filed, and as amended, is a claim for damages based upon the obstruction by defendant of a section of public road, “forming a part of the highways of said county,” “accepted by the public and used by the public as a public thoroughfare and highway” for a period of thirteen months. No claim is made for the interruption of rights had in a private way. In response to the defendant’s special demurrer pointing out that the petition failed to show when, how, and by what authority the alleged public road was accepted by the public, the plaintiff amended her declaration by setting up that the road “was accepted by the public by use by the public.” Held: (a) The allegation thus made by the amendment not only fails to show acceptance of the road as a public highway, but negatives such an acceptance. (6) Under the claim as made, and the theory on which the plaintiff relied for recovery, it is unnecessary to determine whether or not the facts indicated might, under proper allegations, present a cause of action in favor of the plaintiff by virtue of her rights in an easement or private way. Healey v. Atlanta, supra.

Decided November 12, 1918.

Action for damages; from Troup superior court—Judge Terrell. January 15, 1918.

Hatton Lovejoy, for plaintiff in error.

Boyd A. Lovvorn, Henry Reeves, E. A. Jones, contra.

4. The action for damages contains only one count, and a lump sum is claimed; first, because the defendant had closed an alleged public highway adjoining plaintiff’s land, and destroyed the ingress and egress to and from plaintiff’s property; and second, because the defendant had, in opening a highway about one hundred yards south of the plaintiff’s property, mad'e a fill across a small stream, whereby the flow of water in the stream was stopped, thus causing the same to back upon and overflow the property of the plaintiff, thereby permanently destroying such property for building purposes. Held: While “All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined” (Civil Code of 1910, § 5521), the petition was nevertheless subject to a special demurrer on the ground that there was an attempt to join two separate and distinct causes of action in one and the same count. Gainesville v. Dahlonega Electric Ry. Co. v. Austin, 122 Ga. 823 (50 S. E. 983); Colquitt v. Georgia Railway & Power Co., 146 Ga. 249 (91 S. E. 70); Harris v. Wilcox, 7 Ga. App. 121 (66 S. E. 380).

Judgment reversed.

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


text:
    9568.
    Case Threshing Machine Company v. Binns.
   Jenkins, J.

1. It appearing, from the evidence, that the witness for the defendant did. not himself sell to the plaintiff the items attempted to be set off and shown in the itemized statement attached to his interrogatories, that he had no personal knowledge of such items, and that his only knowledge of the correctness of the account was derived from the books of the company alone, the correctness of the account was not sufficiently proved, and the court did not err in excluding the itemized statement. Dougan v. Dunham, 115 Ga. 1012 (42 S. E. 390) ; Swift v. Oglesby, 8 Ga. App. 540 (70 S. B. 97).

2. The only living subscribing witness to the contract introduced by the defendant not having been produced, the mere statement of counsel for the defendant, not under oath, that the witness was no longer in the employ of the defendant, and that he did not know where to look for him, was not a sufficient showing that the witness was inaccessible, and the court did not err in refusing to admit the contract in evidence. Dunaway v. Virginia-Carolina Chemical Co., 142 Ga. 383 (82 S. E. 1071).

Decided November 12, 1918.

Complaint; from city court of Washington—Judge Wynne. February 8, 1918.

W. A. Slaton, for plaintiff in error.

Colley & Colley, contra.

3. Ordinarily an agent to sell earns his commission only when he finds a customer ready, able, and willing to buy on the terms stipulated by the principal (Civil Code of 1910, § 3587; Harvil v. Wilson, 11 Ga. App. 156 (74 S. E. 845) ; but the principal can not, with knowledge of the negotiations between the purchaser and the agent, and while such negotiations are still pending, defeat the right of the agent to recover such commission by interfering with and himself completing the sale of which the agent was the procuring cause. Doonan v. Ives, 73 Ga. 295; Gresham v. Connally, 114 Ga. 906 ( 41 S. E. 42) ; Hill v. Wheeler, 2 Ga. App, 349 (58 S. E. 502) ; Graves v. Hunnicutt, 8 Ga. App. 99 (68 S. E. 558).

4. There was sufficient evidence to authorize the jury to find that the plaintiff was the procuring cause of the sales on which he claimed commissions, although the sales were actually consummated by the defendant company itself, acting through its other agents, while negotiations between the purchaser and the plaintiff were still pending; and' the evidence authorized the verdict against the defendant, and the court did not err in overruling the motion for a new trial.

■Judgment affirmed.

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


text:
    9597.
    WHITERS v. MALLORY STEAMSHIP COMPANY.
    1. A servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and' does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary, prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes an act of negligence, but the servant, acting under the duty and obligation thus resting upon him, proceeds to execute the command, and is injured as a consequence, the master is liable in damages to the servant for the injuries so sustained. Moore v. Dublin Cotton Mills, 127 Ga. 609, 616 (56 S. E. 839, 10 L. R. A. (N. S.) 772).
    2. Whenever the vice-principal of the master enters upon the discharge of duties which relate solely to the ordinary work and functions of a servant, lie will be presumed to have assumed the status of a servant, and when he is thus acting in the capacity of a mere fellow-servant the master is not liable for his acts of negligence whereby another servant is injured (Studevant v. Blue Springs Lumber Co., 16 Ga. App,
      668 (3), 85 S. E.'977). If, however, one who is in fact a vice-principal of the master gives what ordinarily would amount to nothing more than a usual and customary work .signal, but in such manner as expressly to indicate with all reasonable clearness that he is then and there assuming to speak, not in the capacity of a fellow-servant, but as the representative of the master, and that with his authority he is engaged in giving a command, then the mere fact that the nature and character of the order may in effect actually correspond with what would ordinarily amount to nothing more than a work signal if issued by a servant, or by one speaking merely as such, would not prevent the order thus given by the vice-principal from having the full force and authority of a command.
    Decided November 12, 1918.
    3. In this case it was a question for the jury to determine whether the vice-principal,- if he in fact was such, in giving the order complained of, was merely performing the ordinary work and duties of a servant, or whether, under the particular facts and circumstances sworn to, he was then and there assuming and purporting to act with the authority of the master, and as his representative was giving the order as a positive command.
    Action for damages; from city court of Brunswick—Judge Krauss. November 14, 1917.

      C. B. Conyers, A. D. Gale, for plaintiff.

      Bennet, Twitty & Reese, for defendant.
   Jenkins, J.

Plaintiff was employed by the defendant as a laborer in "loading its ship. From the evidence introduced by plaintiff it appears that the gang of which he was a member was working on the main or between deck of the ship, and had finished loading cross-ties into the hold of hatch number one, which was a hole in the deck, about twelve or fourteen feet long by eight or ten feet wide, and through which the cargo is lowered into the hold. After the loading of the cargo is completed, it is necessary to cover the hatch, and this is done by first putting in place a piece of iron called the strong-back. Hatch covers are then placed over the hatch, -supported by the strong-back. The covering of the hatch is a part of the work of the gang engaged in the loading. The loading is done by a hoisting engine which is on the deck above the main .or between deck, and the hoisting engine is so situated on the upper deck that the man operating it can not see through the hatch, thus making it necessary to have a man called the “stage-runner” to stand upon the upper deck, whose duty it is to transmit signals from the gang below to the man operating the hoisting engine, both the engineman and the- stage-runner being members of the gang at that hatch. . The placing of the strong-back in position is done by the hoisting engine, a chain and hook running from the engine down through the hatch, which is hooked into the strong-back to place it in position, and when the covering of the hatch is completed the chain is unhooked, and upon a signal to “go. ahead,” given by a member of the gang, the chain and hook are drawn up by the hoisting engine.

• On the occasion in question, while plaintiff and a colaborer were engaged in placing the hatch covers; the signal or order from the gang at the hatch to the stage-runner was given by Bill Bowman, who was not a member of - the gang, but was assistant stevedore, of outside foreman, and foreman over three hatches, including the one at which the plaintiff was engaged. Although it was a disputed issue as-to whether or not Bowman was a vice-principal of the defendant company, still it is conceded by the defendant that the evidence was sufficient to have authorized a finding that he was. When the hoisting engineman, in response to the signal given by Bowman, started his engine; the hook caught in the strong-back, jerking it and the hatch covers out of place, «and throwing plaintiff and his colaborer into the hold below, whereby he alleges he was injured. The plaintiff himself testified that “ It was the business of anybody belonging to that gang to give the signal to go ahead to the man that was running the stage. . . . I-have given the signal to go ahead myself;” and this "fact was substantiated by the testimony of other witnesses. Ferguson, a witness in behalf of the plaintiff, who was “gang-header” or sub-foreman over the gang of which plaintiff was a member, and who was under Bill Bowman, testified as follows: “Bill Bowman came up there and told them to go ahead on it because he was rushing the work. When Bill holloaed ‘go ahead’ I halloaed»fhold’, and the donlceyman didn’t go ahead; and Bill said, 'Didn’t I tell you to go ahead on it/ and when he said that the donkeyman went ahead and these boys were trying to get off then' and both of them went into the hatch.” This testimony of the witness Ferguson was denied, however, by Bill Bowman, when sworn as a witness for the defendant. Upon the conclusion of the evidence, the court below directed a verdict in' favor of the defendant. The plaintiff excepted to this ruling.

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

Judgment reversed.

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


author: Wade, C. J.

text:
    9606.
    Peavy v. The Cosmopolitan Life Insurance Co.
    Decided November 12, 1918.
    Complaint; from Ben Hill superior court—Judge Crum. February 9, 1918.

      Eldridge Cutts, J. W. Haygood, for plaintiff in error.

      Otis H. Elkins, Little, Powell, Smith & Goldstein, contra.
   Wade, C. J.

1. There is no substantial merit in any of the various 'special grounds of motion for a new trial.

2. In all essential particulars the instant case is controlled by the fully considered decision of this court in the case of Cosmopolitan Life Ins. , Co. v. Sheats, 20 Ga. App. 622 (93 S. E. 507).

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

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9704.
    Richards v. Dorsey, Governor.
    Decided November 12, 1918.
    Condemnation under liquor law; from city court of Madison—• Judge Anderson. April 9, 1918.

      E. H. George, for plaintiff in error.

      A. G. Foster, solicitor, contra.
   Luke, J.

A careful examination of the record in this case fails to disclose evidence sufficient to authorize the judgment rendered by the trial judge, who by agreement heard the case without' the aid of a jury. The proof failed to §how that the automobile seized was at the time of seizure, as alleged in the petition to condemn, transporting intoxicating liquors. (Ga. L. 1917, Ex. Sess. 16.) It is not necessary to decide the question raised as to whether the proceeding to condemn was commenced within the time provided by the act und'er which it was instituted. For the reason that the evidence did not authorize it, the judgment of the trial court is

Reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9708.
    Swain v. Graves, ordinary, for use, etc.
   Luke, J.

1. Where suit was brought for the breach of a' bond given under section 379 of the Renal Code of 19Í0, to stop a prosecution for seduction, the condition of which was as follows: “Now should the said Charlie J. Swain provide for the said. Dollie Sumner and her child, now Dollie Swain, and maintain her and her child in meat and drink and Clothing and other necessities of life in a manner suitable to her circumstances during and for • the period of five years from the date of this hond, then this obligation to be void; otherwise of full force and effect,” proof that the mother of 'the child had by her labor accumulated some little property would not relieve the defendant from his obligation to keep and maintain the mother and child as provided by the bond.

Decided November 12, 1918.

Action upon bond; from Tift superior court—Judge Eve. March 6, 1918.

J. P. Knight, for plaintiff in .error.

R. D. Smith, contra.

2. The charge of the court was full and fair, and was not subject to the criticism that the contentions of the defendant were not fully submitted to the jury. The general grounds of the motion for a new trial and the exception to the failure of the judge to charge more fully the contentions of the defendant were without merit. The evidence fully authorized the verdict, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9780.
    Wisenbaker, et al. v. Arnett.
    Decided November 12, 1918.
    Complaint; from city court of Valdosta-—Judge Cranford. April 12, 1918.

      O. M. Smith, for plaintiffs. F. S. Harrell, for defendant.
   Luke, J.

1. Where a judge gives in charge to the jury the general prin-

ciples of law applicable to an issue in the case, a party who desires more specific and concrete instructions as to his contentions should make a request therefor in writing; and where the court has correctly instructed the jury as to the law applicable to the issues involved in the ease, failure to affirmatively, state the contentions of the parties as shown by the pléadings is not cause for a new trial. See Charleston & Western Carolina Ry. Co. v. Duckworth, 7 Ga. App. 350 (2) (66 S. E. 1018); Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (2, 3) (58 S. E. 769).

2. The court did not err upon the question of the admissibility of the evidence as complained of in the motion for a new trial. See Lawson v. Prosser, 146 Ga. 421 (91 S. E. 469).

3. The charge of the court, when considered' as a whole, was full and fair; the evidence authorized the verdict, which the trial judge, in the exercise of his discretion, approved. All assignments of error have been carefully examined, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenlcins, J:, concur.


text:
    9790.
    ALFRED STRUCK COMPANY v. SLICER.
    Decided November 12, 1918.
    The petition, as finally amended' was not subject to the demurrer attacking it on the ground that it showed on its face a complete accord and satisfaction.
    Rule against attorney; from Fulton superior court—Judge Bell. April 4, 1918.
    The petition as finally amended was as follows:
    “The petition of Alfred Struck Company, a corporation, respectfully shows:
    “1. J. S. Slicer, of said county, was, on and for some years prior to May 19th, 1910, and continues still to be, an attorney at law and a member of the bar of this court. -
    “2. On and prior to said day your petitioner had an account and claim amounting to approximately eleven thousand dollars principal, besides interest, for labor and materials furnished by petitioner in and for the construction of the Forsyth Building in the City of Atlanta, for security of which petitioner had a material-man’s lien, on the building and real estate improved, under the laws of said State in such cases made.
    “3. On or about said 19th day of May, 1910, your petitioner’s secretary, H. L. Weinedel, being in said city for the purpose of taking measures to protect petitioner in respect of the premises, called upon said J. S. Slicer, as such attorney, with a view, if they agreed, of employing him to look after the business.
    “4. The claim being for a large amount, petitioner was determined not to place it in the hands of a lawyer, without a firm and explicit agreement in advance as to what he should charge for'his services. And, after stating his case, petitioner’s said secretary, Weinedel, asked said J-. S. Slicer to state what fees or commissions he would charge petitioner if they placed the claim in his hands; and he, Mr. Slicer, in answer thereto stated that he would represent petitioner upon the following named terms: (1) That he
    would file petitioner’s claim of lien for a' fee of ten dollars, which, if no further service was required, would be all he would charge; (2) that if the claim was not then paid voluntarily by the debtor to petitioner, and his services were necessary in collecting it, and he succeeded in effecting the collection without suit, his fee in that event would be five per cent, of the amount collected; and (3) that if the claim was not collected without litigation, but went to suit, in that event his fee would be ten per .cent, of the amount collected by suit.
    “5. Said Mr. Weinedel then and there accepted Mr. Slicer’s proposal and they agreed that petitioner’s claim would be placed in his hands upon the terms above set forth, and, in pursuance of said agreement, on or about the 6th day of June, 1910, sent the papers in the case to said J. S. Slicer. He filed and had recorded petitioner’s claim of lien in the clerk’s office of this court. The matter went into litigation.
    “6. On March 7, 1913, said J. S. Slicer wrote that he had collected $3,511.40 on account of said claim, ánd, in remitting petitioner therefor, deducted' $700.00' as for his fee. Hpon receipt of said Slicer’s letter and check the next day, March 8, 1913, petitioner immediately returned the check to Mr. Slicer and called his attention to the fact that, under the contract between them, he was not entitled to deduct more than ten per cent, of the collection. On March 13 thereafter Mr. Slicer returned said check and wrote asking petitioner to use the check ■ pending the settlement of the question if he should not be allowed more than ten per cent., said Slicer having written petitioner that the litigation had proven to be a very tedious and lengthy one and that the amount he was now asking was a very small fee, considering the service that he claimed to have rendered. Your petitioner thereupon used the check, but with the distinct understanding that it did not thereby accede to said Slicer’s contention for a larger fee, but insisting that he live up to the contract made when the claim was placed in his. hands.
    “7. On or about April 28, 1914, said J. S. Slicer told your petitioner’s said.secretary, Mr. Weinedel, who was then, in Atlanta again, that'he had associated the law firm of Moore & Pomeroy in the case, but did not intimate to him that any additional fees would be required of petitioner by reason thereof.
    “8. Thereafter, on March 8, 1916, petitioner received a letter from said Moore & Pomeroy [a copy of which is attached], stating that they- had collected the sum of eighty-eight hundred and eighty-nine dollars and twelve cents ($8,889.12) in full and final settlement of the balance due on petitioner’s claim, and inclosing a check for $6,666.56, the difference of $2,222.56 being deducted, the letter stated, as attorney’s fees. Upon receipt of this letter and check petitioner wrote immediately to said J. S. Slicer, protesting against the overcharge and insisting that he refund and pay over to petitioner the sums deducted in excess of the contract fee of ten per cent. And after some correspondence, said J. S. Slicer wrote petitioner under date of March 23, 1916, denying the contract and refusing to make any restitution. By the direction of said defendant, petitioner’s said money was paid by the defendants in the ease to Mr. Hudson Moore, of the firm of Moore & Pomeroy, and taken by him to the Atlanta National Bank, where, with $6,666.56 thereof, Mr. Moore purchased a New York exchange payable to petitioner, which, as stated, . . was sent to petitioner by the defendant, and the balance, $2,222.56, was divided by Messrs. Slicer and Moore equally between themselves.
    “9. Petitioner shows that said Slicer withholds moneys belonging to petitioner, collected upon said claim, amounting to sixteen hundred and eighty-two dollars and ninety-one cents ($1,682.91), wrongfully, in violation of his duty of an attorney at law.
    “Wherefore petitioner prays the rule and order of this court, calling upon said J. S. Slicer to pay over to your petitioner the said sum of sixteen hundred and eighty-two dollars and ninety-one cents ($1,682.91), with interest thereon from March 23, 1916, at the rate of twenty per cent, per annum, or show good cause, if any he can, to the contrary.
    “Owens Johnson, petitioner’s attorney.”
    The defendant demurred on the ground that the petition set forth no cause of action. The court sustained the demurrer and dismissed the petition, on the idea that the petition showed that there was a complete accord and satisfaction. To this judgment the defendant excepted.

      Owens Johnson, E. M. & G. F. Mitichell, for plaintiff.

      King & Spalding, for defendant.
   Luke, J.

The petition does not show on its face that there had been a complete ( accord and satisfaction, and therefore it was error for the trial judge to sustain a demurrer attacking it on this ground. An accord and satisfaction is a contract, and consequently must be based on a valid consideration. Richmond &c. R. Co. v. Walker, 92 Ga. 485 (17 S. E. 604); Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623); Armour v. Ross, 110 Ga. 403 (3 5 S. E. 787). There was no consideration for the alleged accord and satisfaction in the instant case. Bouvier’s Law Dictionary (vol. 1, p. 103) defines accord and satisfaction as an agreement between two parties to give and accept something in satisfaction of a' right of action which one has against the other, which when performed is a bar to all actions on this account. The same authority, dealing with the same subject, declares: “It must be advantageous to the creditor, and he must receive an actual benefit therefrom which he would not otherwise have had. . . Restoring to the plaintiff his chattels or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries.” These statements are supported by abundant authority, and are, we think, a clear, succinct, and correct enunciation of the principle applicable to the petition under consideration, and clearly show that there was no accord and satisfaction. So also Bouvier’s Law Dictionary declares (p. 107) : “Accord and satisfaction, when completed, has two effects: it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor in satisfaction.” [Italics ours.] This statement very strongly emphasizes the essential element that the thing which the creditor receives must belong to the debtor. The contrary is distinctly alleged in the petition under review. Where one claims a debt against another, the correctness of which is disputed, and the debtor sends a check or other medium of payment to the creditor, 'with the statement that the payment is in full settlement of the claim, the creditor cannot accept and use this payment and after-wards maintain a suit for the balance. In such a case the debtor has given something which belongs to him, upon the condition that the creditor accept it in full settlement of the claim. It will be recalled that in the case at bar the defendant did not part with anything which belonged to him. The money sent to and accepted and used by the plaintiff was the plaintiff’s own property. This statement is sufficient of itself to show that the doctrine of accord and satisfaction did not apply in this case. As illustrative of the fallacy of the defendant’s contention that the petition showed on its face that there was a complete accord and satisfaction, plaintiff’s counsel in his brief states the following hypothetical case, which we deem entirely apropos: A enters into a bind ing contract with B, whereby the former is to shoe a team of four horses entrusted to him at the cost of $2 per head, and the latter returns only three of the horses, saying,.'“I agreed to shoe these four horses for $2 a head, or $8 altogether, but I find that it is worth one fourth .of the team of four horses. I have therefore taken one of the horses, and here are the other three. Notwithstanding I had a firm contract with you to do the work for $8, and you entrusted 'these horses to me under that contract, still I am 'going to charge you one horse.” We cannot'bring ourselves to the conclusion that by accepting the three horses, which were his property, B would be barred from thereafter instituting suit to recover the horse held by A as payment for shoeing all four horses, when the latter was under contract to do the entire work for $8.

The decision in the case of Ryan v. Publishing Co., 16 Ga. App. 83 (84 S. E. 834), is relied upon by the defendant, who contends that it Controls the instant case. That case though somewhat akin to this case, is nevertheless clearly distinguishable on its facts, the all-important distinction being that in the Ryan case the relation of-debtor and creditor existed, whereas in this case no such relation is sliown. See also Roberts v. Bank of Eufaula, 20 Ga. App. 226 (3) (92 S. E. 1015). We therefore reiterate that the trial judge erred in sustaining the demurrer and dismissing the guit.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


text:
    9795.
    Prince, sheriff et al. v. Wood, ordinary.
   Wade, C. J.

1. The contention as to bar by election of a different remedy is without merit. “The plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them.” Civil Code, § 5522. “A , rule absolute against the sheriff, ordering liim to pay over money, is neither, an extinguishment of his official 'security, nor a bar to a suit against his sureties. It is but one of several remedies which the injured party may use successively, until he obtains- satisfaction.” Crawford v. Word, 7 Ga. 445. See, on this subject generally, Board of Education v. Day, 128 Ga. 156 (57 S. E. 359).

2. Likewise the grounds of the demurrers raising the point that the action was barred by the statute of limitations are without merit. The - bond sued on was under sea], and the limitation on such instruments is twenty years. Civil Code, § 4359. “The action, having been instituted within 20 years from the alleged breach of the bond, was not barred by the statute of limitations. Harris v. Black, 143 Ga. 497 (5), 502 (85 S. E. 742).” Slaton v. Morrison, 144 Ga. 471 (2) (87 S. E. 390). ’ , .

Decided November 12, 1918.

Action upon bond; from Laurens superior court—Judge Kent. April 22, 1918. .

John S. Adams, Hal B. Wimberly, for plaintiffs in error.

Ira S. Chappell, contra.

3. The'other grounds of the demurrers, being wholly without merit; need not be more specifically passed' upon.

4. No reversible error is shown by the assignment -of error to the effect that in admitting in evidence the bond sued on the court erred because there was neither proof of its execution nor proof of the authority ■ of the attorney in fact who executed it on behalf of the bonding company. There was no plea of non est factum by the -defendants or either of them. Such a- plea, being a dilatory plea, must be under oath and filed at the first term. Moreover, the defendants’ answers admitted the execution of the bond.

5. The bond sued on and the rule absolute, having been properly admitted in evidence, were conclusive against the sheriff and showed prima facie liability on the part of the surety. . This shifted the onus to the defendants, and while the surety would be permitted to prove -anything ab initio which the sheriff (the principal) could have relied upon (Crawford v. Word, supra), they could not attack the validity of the process under which the sheriff' raised the fund in controversy, since the latter could not do this himself,—they could not prove that which he could not prove. Wilkinson v. Bennett, 56 Ga. 290; Walden v. County of Lee, 60 Ga. 296; Waits v. Colquitt, 66 Ga. 492; Mason v. Commissioners, 104 Ga. 35, 45 (30 S. E. 513).

6. Sheriff’s sales in Georgia are for cash; and therefore neither the sheriff nor his surety could raise the point that he never collected the money derived from such a sale. Phillips v. Behn, 19 Ga. 298; Jones v. Thacker, 61 Ga. 329; McLendon v. Harrell, 67 Ga. 440, 443.

7. There being no issue of fact to submit to a jury, the trial judge did' not err in directing a verdict for the plaintiff.

.Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9892.
    Galion Iron Works Company v. Marion County.
   Wade, C. J.

1. By article 7, section 7, paragraph 1, of the constitution of Georgia (Civil Code, § 6563) it is declared that no county or municipal corporation shall incur any new debt, except for -a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per cent, of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof, at an election for that purpose,- to be held as may be prescribed by law.

Decided November 12, 1918.

Complaint; from Marion superior court—Judge Howard. April 24, 1918.

The alleged debt was for culvert pipe used on roads.

W. D. Crawford, for plaintiff. G. P. Munro, for defendant.

2. The petition in this case shows that the contract under which the account in controversy arose was entered into by the County of Marion and a private corporation on April 27, 1911, and by the terms of the agreement the debt was to become due and payable on March 27, 1912. The debt which it was thus sought to create is inhibited by the provisions of the constitution referred to above. Renfroe v. Atlanta, 140 Ga. 81 (78 S. E. 449, 45 L. R. A. (N. S.) 1173) ; City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 711 (32 S. E. 907). Payment being by the terms of the agreement deferred for a period of eleven months and it being made to mature after the end of the then-current fiscal year, and' it not being alleged that any special provision for the payment of such indebtedness had been piade at the time of the attempted creation of the debt, the petition was subject to the demurrer based upon that ground, and therefore the court did not err in sustaining the demurrer- and dismissing the petition. Gaines v. Dyer, 128 Ga. 586 (7) (58 S. E. 175); Town of Wadley v. Lancaster, 124 Ga. 354 (52 S. E. 335); Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244) ; McCord v. Jackson, 135 Ga. 176 (69 S. E. 23) ; Renfroe v. Atlanta, supra; Town of Whigham v. Gulf Refining Co., 20 Ga. App. 427 (93 S. E. 238).

3. The attempt to create a debt being null and void', an allegation to the effect that the county commissioners ratified the claim by giving subsequent orders was wholly insufficient to make the demand legal. The claim being illegal, a subsequent ratification could not make it legal. Dorsett v. Garrard, 85 Ga. 734 (3) (11 S. E. 708). “What a municipal corporation was without power to do its officers could not make lawful by ratification.” Toum of Wadley v. Lancaster, supra.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Harwell, J. Broyles, P. J.,

text:
    9474.
    McDonald v. The State.
    1. The excerpts from the charge of the court, complained of in the 1st and 4th special grounds of the motion for a new trial, are subject to the criticism that they are argumentative; and those complained of in the 2d and 3d special grounds are not accurate statements of the law.
    2. The admission of certain testimony as complained of in the 6th, 7th and 15th special grounds of the motion, if erroneous, was not such harmful error as requires the grant of a new trial.
    3. The 8th special ground of the motion for new trial takes exception to the admission of certain testimony offered by the State, over the defendant’s objection. It does not appear, however, from the question or the answer, to what person the testimony had reference; and it being necessary to refer to other portions of the record in order to understand it, this ground can not be considered.
    Decided November 16, 1918.

      4. No error appears in the rulings of the court on the admission of testimony as complained of in the 9th, 10th, 11th, 12th, 13th, and 14th special grounds of the motion for a new trial.
    5. It was harmful error, under the facts of this case, to admit, over the timely objection of the defendant, testimony showing the good character of the deceased.
    6. Under the facts as disclosed by the record, the court erred' in failing to give in charge to thfe jury the law of involuntary manslaughter in the commission of an unlawful act.
    Conviction of manslaughter; from Fulton superior court—Judge Hill. December 5, 1917.
    The defendant was indicted for murder and was found guilty of voluntary manslaughter. He was charged with killing a China-man named Jung. He filed'a motion for a new trial upon a number of grounds. In the 1st, 2d, 3d,’ and 4th special grounds exception is taken to the following excerpts from the charge of the court:
    1. “Murder is the unlawful killing of a human being in the peace of the State by a person of sound memory and discretion, with malice aforethought, either express or implied. Murder is not the killing of a citizen of Georgia; murder is not the killing of a citizen of France, or a citizen of England, or citizen of- Germany. Murder is the killing of a human being in the peace of the State. If the jury should permit any feeling to get into that box-against the dead man because of his nationality, it would be not only a dishonor to the high duty which you are called upon to perform, but would be an injustice to the dead man and an insult to the flag of your country. Every man who comes into Georgia, wherever he comes from, whoever he is, is entitled to protection by the laws of Georgia, and every man who comes into the State of Georgia, wherever he comes from, and commits a crime ■ in the State of Georgia, is subject to.be punished by the laws of the State of Georgia; and if he happens to be a native of a State of this Union who kills a Chinaman in the State of Georgia, if the jury, under the evidence and the law, believe the Chinaman was a human being and was in the peace of the State, and was killed by a per-' son of sound memory and discretion, with malice aforethought, it would be the sacred and sworn obligation of the jury to convict that man of murder.”

      2. “He (the defendant) is'presumed, and every man is presumed, to intend not only the. natural and probable consequences of his act, hut the possible consequences of his unlawful act.”
    3. “If a man use a deadly weapon in such manner as would naturally and probably or possibly produce death, he cannot be heard to say that he did not intend to kill, if he does in fact kill.”
    4. “Now, gentlemen, is hatred of a man a delusion? The court ~ leaves you to say. Is hatred of a race a delusion ? Is that a fact? Is that an imaginary thing? Is that something that does not exist? To be a delusion, it must be an imaginary fact, affect the mind of the man alone. Is hatred that sort of delusion,— hatred of a man, hatred of. a race, or fear of a man, a fear of a race ? If you believe it is, and this man had that sort of delusion, and it was in control of his.will and his intelligence and his mind and his memory, took possession of him, and it was his delusion, and not his criminal intent that caused him to commit this crime, if you believe that, or have a reasonable doubt about it (I will even put it that strong), the court thinks you should give the benefit of the doubt to the defendant.”
    ,A number of grounds of the motion for a new trial complain of rulings in the admission of testimony. These are dealt with in the headnotes and in the opinion.

      Colquitt & Conyers, Jerome Simmons, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Harwell, J.

(After stating the foregoing facts). The 5th special ground of the motion for a new trial is as follows: “Because the court erred, as movant avers, in failing, and declining to submit to the jury the question of whether or not the defendant was guilty of involuntary manslaughter in the' commission of an unlawful act, and in failing and declining to instruct the jury as to the law upon this subject. "It is stated as a matter of fact that a written request was presented on behalf of the defendant for this charge, which request was submittted before the beginning of the general charge.” The evidence shows that the defendant and the deceased, a Chinaman named Jung, had some dispute about a concession at the Southeastern Fair which was being operated by the Chinaman. They had some words,' and the defendant turned and was leaving the Chinaman’s concession when the Chinaman made some remark. The defendant turned back and asked, “What' did you say?” The Chinaman, at first made no answer, and when the defendant repeated the question he replied: “Too many bosses,” or “too much boss, I won’t move out, too much boss,” whereupon the defendant struck the deceased with his fist, and then quickly drew from his pocket a “billy” and struck the Chinaman one blow with it, felling him; and almost immediately got down beside the injured man and attempted to revive him. The- defendant in his statement said: '“Then he [the deceased] said he never saw such a place in his life, there were too many bosses, and he became very much enraged and excited, and then he struck at me with this, and I knocked the lick off with my arm; then he struck me again, it stunned me right smart, struck me along here somewhere (indicating) ; then I hit him, and then I started immediately, went to work on him to revive him. I had no idea I had hurt him. . . He hit me with this. When I left I took that with me, and if I had wanted to kill that Chinaman I could have shot him. I had a gun on my person. I am required to carry a gun in my line of business. ... I want to tell you I had no idea about hurting him, only keeping.him from injuring me. . . I want you to know I had no intention in the world .of injuring this Chinaman in any shape, form, or fashion. I was simply trying to protect myself from this dangerous weapon. If I had wanted to have hurt him, I could have shot him,—if I had wanted to have killed him. I was scared and never thought of hurting him in any way.”

In Taylor v. State, 108 Ga. 384, 390 (34 S. E. 2.), where the weapon used was “a piece of wood”, the Supreme Court said: “It was not affirmatively shown that the “piece of wood” was a weapon likely to produce death, and the mere fact that death resulted from its use did not necessarily make the killing murder. . . ‘There can be no involuntary manslaughter where the intention is to kill. If there is any evidence to cause a .doubt, even though slight, (as to the intention to kill, the court should give in uharge the law of-involuntary manslaughter.’ Of course a prisoner’s statement, if believed by the jury, may constitute the basis of such a-doubt, as well as the sworn evidence.” Jackson v. State, 76 Ga. 473, was cited. In Chapman v. State, 120 Ga. 855, 857 (48 S. E. 350), where the weapon used was “a brick, thrown at the deceased,” the-court said: “The evidence is silent as to the size and weight of the brick, and as to whether it was a deadly weapon, or was used in such a manner as that the ordinary consequences of the act would have produced death. . . The defendant disclaimed any intention to take the life of the deceased. . . And if the brick was hastily picked up and thrown with no intention of killing the deceased, and the evidence failed to disclose that the brick was either a deadly weapon or was thrown in such a manner as ordinarily would have produced death, the homicide would be involuntary.” In Jordan v. State, 124 Ga. 780, 781 (53 S. E. 331), where the weapon used was a “rock”, the court said: “If there was no intent to kill the accused was not guilty of murder, unless the killing happened in the commission of an unlawful act which in its consequences naturally tended to destroy the life of a human being.....In determining whether the killing happened as the result of an act naturally tending in its consequences to destroy the life of a human being, much will depend upon the size and character of the rock. On this vital point the evidence, at its best, is vague, uncertain, and unsatisfactory. . . . Where all the circumstances are such as to preclude the idea of deliberation, and where the weapon used is one caught up hastily, a killing resulting from -the use of such a weapon is not generally murder, but only involuntary manslaughter;” citing Ray v. State, 15 Ga. 223; Henry v. State, 33 Ga. 441; Crawford v. State, 90 Ga. 709 (17 S. E. 628, 35 Am. St. R. 242); Taylor v. State, supra. In Kelly v. State, 145 Ga. 212 (88 S. E. 823), where the weapon used was the. “limb of a tree”, the court said: “Under the evidence, . . A it was for the jury to say whether the implement with which the blow was inflicted was a weapon likely to produce death when employed in the manner in which it was shown to have been used; and while the jury would have been authorized to find that it was such a weapon, the evidence was not of such a character as to demand a finding that the implement was a weapon likely to produce death and that the blow was struck with intent to kill. The evidence would have authorized a verdict of involuntary manslaughter in the commission of an unlawful act. . . '. It was erroneous, therefore, to omit to charge the law of involuntary manslaughter.” In that case a witness testified that the stick used was fifty-eight inches long and eight and one half or nine inches in circumference. See also Farmer v. State, 112 Ga. 80 (37 S. E. 120), where the weapon used-was “a thick, dark-colored beer-bottle,” thrown at the deceased and broken when it struck his head, and Dorsey v. State, 126 Ga. 633 (55 S. E. 479), where the weapon used was the large end of a billiard cue—about four feet long and an inch or more in diameter at the large end. In both of these cases the Supreme Court reversed the trial court -for failure to instruct the jury upon the law of involuntary manslaughter. In Cain v. State, 7 Ga. App. 24 (65 S. E. 1069) the court said: “If the theory of manslaughter is raised by the defendant’s statement alone, a charge on the law of manslaughter would be proper; and if timely requested, a refusal to so change would be error.” See also Lyman v. State, 89 Ga. 337 (15 S. E. 467); Joiner v. State, 129 Ga. 295 (58 S. E. 859); Anderson v. State, 130 Ga. 364 (60 S. E. 863).

The evidence in the instant case failed to disclose that the “billy” with which the deceased was struck was either a deadly weapon or was used in such a manner as would ordinarily have produced death. It does appear that the weapon was hastily drawn and the blow quickly delivered, and that almost immediately the defendant got down on the ground, or floor, in an effort to revive the unconscious man. The defendant disclaimed any intention to take the life of the deceased.

Under the facts as shown by the record, and the authorities cited, we think that thq court should have charged the jury upon the subject of involuntary' manslaughter in the commission of an unlawful act, and the failure to do so was erroneous.

Several of the grounds of the motion for a new trial complain of the admission, over objection of the defendant duly made, of the testimony of a number of witnesses showing the good character for peaceableness of the deceased Chinaman. The State insisted that this evidence was admissible because the defendant—so the State claims—had put the deceased’s character in issue. We can not agree with this contention of the State. The defendant did not put in issue the character of the deceased. In the defendant’s statement at the trial, in order to support his defense of delusional insanity, he said that since he had a difficulty with two Chinamen in Mississippi, he had always been afraid of them—the Chinese people; that he had always known they were treacherous, and had never allowed them on the fair grounds in his career in Mississippi. It would seem from the language used in Crawley v. State, 137 Ga. 777 (74 S. E. 537), by Mr. Justice Beck, that a defendant in his statement can put in issue the character of the deceased, so as to authorize the introduction by the State of evidence of good character of the deceased. It will be noted, however, that in the Crawley case the defendant, by evidence offered, put in. issue the character of the deceased, so that in that ease the evidence was admissible regardless of the defendant’s statement. However, in the instant case it is not necessary to determine that question. There is nothing in the defendant’s statement in this case which puts in issue the character of the deceased. His statement that on account of the previous difficulty he had had with two Chinamen in Mississippi, he was afraid of the Chinese race, ' and that they were treacherous as a race, we do not think is sufficient for this purpose. • Neither does the statement of the defendant that the deceased was making an attack on him at the time that, he struck the deceased justify the introduction' of this evidence of good character. “We do not think that proof of an attack by the deceased upon the defendant at the time of the homicide is sufficient to warrant proof of his peaceable character.” Worley v. State, 138 Ga. 336 (75 S. E. 340). Neither does the testimony of Stripling, one of the State’s witnesses, to the effect that after the difficulty between the defendant and the deceased the defendant said that the deceased was a dangerous Chinaman and that he was afraid of him, authorize the introduction of this evidence as to good character. This was evidence offered by the State. It certainly would not be seriously contended that the State can offer evidence of the deceased’s character for violence by a statement made by the defendant, and thus lay the foundation for the introduction of evidence of good character for peaceableness in rebuttal.

Beluctant as we are to disturb the verdict of the jury, the defendant is entitled to a fair and impartial trial according to the forms of the law. The admission of this illegal testimony, delivered by a number of prominent and influential citizens, was unquestionably harmful to the defendant.

In connection with these grounds of the motion it is stated that one of the counsel assisting in the prosecution stated in open court, in the hearing of the jury, that he had fifty or one hundred more witnesses who would swear exactly the same thing, that is, as to the good character for peaceableness of the-deceased. It does not appear, however, that this improper remark, made in the presence of the jury, was heard by the court, or the attention of the court was called to it.

Because of the errors hereinbefore pointed out a new trial is necessary. The other rulings stated in the headnotes require no elaboration. The assignment of error upon the refusal of a continuance, and the general grounds of the motion for a new trial, are not passed upon.

Judgment reversed.

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

Broyles, P. J.,

concurring specially.

I concur with my associates that, under the facts of the case, including the statement of the accused, the court committed reversible error in refusing to instruct- the jury upon the law of involuntary manslaughter, a timely written request therefor having been presented. I am, however, not at all sure that the admission of the testimony as to the good character of the deceased Chinaman for peaceableness was erroneous, under all the peculiar and particular facts of this case. In his statement to the jury the defendant asserted' that on a former occasion in California, while asleep, he had been sandbagged by a couple of Chinamen and left in an unconscious condition; that afterwards, on the State Fair grounds in Mississippi, he was badly beaten over the head with some kind of a weapon by two Chinamen, and “I have been always afraid of them—'the Chinese people. I have always known they were treacherous, and I have never allowed them on the fair grounds in my career in Mississippi. . . . Last year, or year before last, I was associated with this fair (of the Southeastern Fair Association of Atlanta), and I absolutely refused Chinese concessions, on account of my fear [of] being thrown with them. . . Since my trouble in California I have.always been afraid of the Chinese race. I know them and have heard of them, and in my condition—This fellow [the deceased Chinaman], he used Chinese language I could not understand, and it appeared to me that he was trying to injure me with this weapon” (a two or three-pronged iron instrument used in cooking ice-cream cones). The defendant in his statement further said that without any'provocation on his (the defendant’s) part, the deceased, on the occasion of the fatal difficulty, “became very much enraged and excited, and then he struck at me with this [the cooking-iron], and I knocked the lick off with my arm, then' lie struck me again, .it stunned me right smart, struck me along here somewhere (indicating),, then I hit'him.”' According to the statement of the defendant .(and the jury had the right to believe it in preference to the sworn testimony), when'properly construed as a whole, the Chinese race was a treacherous and dangerous race of people, and the deceased was no exception in this respect, but was himself a violent and dangerous man. Moreover, in addition to these averments in the defendant’s statement, the secretary of the Southeastern Fair Association (who was the employer of the defendant) testified that on the afternoon of the fatal difficulty, and shortly after it liad occurred, the defendant told him that the deceased was “a dangerous Chinaman”, tliat he was “a very bad, dangerous fellow.” This evidence went to the jury without any objection from the State or the defendant, and on cross-examination by the defendant’s counsel the witness was questioned further about this statement of the defendant as to the deceased being a dangerous man. It is true that this witness was introduced by tbe State. It is also true that ordinarily the State can not prove the bad character of the deceased for violence,-and thus lay tbe foundation for proving his good character. But it must be remembered that in this instance the witness for the State did not himself testify that the deceased was a dangerous man, but testified that the defendant had so stated to him. Further, it does not appear from the record that the witness was asked by the State’s counsel as to what the defendant said about the dangerous character of the deceased, but the fair inference from the evidence is that the witness .(who was introduced in rebuttal, after the defendant had made his statement about being afraid of Chinamen, and that on account of this fear he had always refused concessions to Chinese on fair grounds) was asked merely if, when he instructed the defendant to draw up the contract between the Fair Association and the'deceased Chinaman for a concession on the fair grounds, the defendant had objected to this concession being granted, on account of his fear of the deceased. Under all these particular circumstances, the evidence as to_ the dangerous and violent character of the deceased having gone to the jury, I am not prepared to hold that it was error to allow the State to introduce witnesses to rebut this testimony by showing his good character for peaceableness.

As to the remaining special grounds of the motion for a new trial: Some of them are so incomplete as to require reference to other portions of-the record, and, under repeated rulings of this court and of the Supreme Court, can not be considered; the others, in my opinion, show no reversible error.


author: Bloodworth, J.

text:
    9526.
    SOUTHERN EXPRESS COMPANY v. THE STATE.
    Decided November 16, 1918.
    1. The second count of the accusation in this ease alleged all the facts necessary to charge a complete crime under section 1 of the 'act of November 15, 1915 (Ga. Laws, 1915, Ex. Session, p. 90), and the demurrer thereto was properly overruled.
    2. Although it may not be necessary, in an accusation based upon the above-mentioned section, to name the agent of the express company who delivered the liquor, yet when the name is alleged it becomes “descriptive of the identity of that which is legally essential to the claim or charge,” and' can not be rejected as surplusage, but must be proved as alleged.
    3. Where an accusation under the above-mentioned act names the agent delivering the second shipment of liquor, and the accused defends upon the idea that the person named in the accusation did not make the second delivery, but that it was made by another, and submits proof to sustain this contention, it is error for the court to ignore this theory of the defendant and refuse to give him the benefit thereof in the charge to the jury.
    Indictment for carrying intoxicating liquor; from Dade superior court—Judge Tarver. January 9, 1918.
    An indictment containing two counts was preferred against the Southern Express Company and W. J. Lloyd. On demurrer the first count was stricken. The second count is as follows: “In the name and behalf of the citizens of Georgia, further. charge and accuse Southern Express Company, a corporation, and W. J. Lloyd, with the offense of misdemeanor, for that the said Southern Express Company and W. J. Lloyd, on the 3d day of June, in the year nineteen hundred and sixteen, in the county aforesaid, did then and there unlawfully and with force and arms, the Southern Express Company being engaged as a common carrier of freight for hire and the said W. J. Lloyd being the agent of said company at Morganville, Georgia, did then and there ship and transport and .deliver to one Jim Hamler forty-eight (48) pints of malt liquors which had been shipped and transported from Chattanooga, Tennessee, by the Southern Express Company, when said malt liquors were intended to be used by the said Jim Hamler in violation of the prohibition laws of Georgia, in- that said Jim Hamler then and there intended to receive, and possess said liquors on said date when he had already within a period of thirty days, to wit, on May 5, 1916, he had received and possessed two quarts of spirituous liquors, and also on May 20, 1916, he had received and possessed and accepted delivery of forty-eight pints of malt liquors, all of which had been shipped and transported by the Southern Express Company from Chattanooga, Tennessee, and from without the State of Georgia, said W. J. Lloyd and the agent of said company at Morganville, Georgia, being the agent' who delivered the forty-eight pints of malt liquors on May 20, 1916, and the forty-eight pints of malt liquors on June 3, 1916, and each delivery-being made at Morganville office, and the defendants then and there knew and should have known on June 3, 1916, when they made last delivery of liquors, that Jim Hamler had already received all the liquors allowed him by law for that period, and that said delivery on June 3, 1916, was then and there unlawful, contrary to the laws of said State, the good order, peace and dignity thereof.” The -demurrer, as far as applicable to the second count, is as follows: “1. Because no offense is therein charged. 2. Because it is not alleged . . that the liquors therein mentioned were delivered to the said Jim Hamler without first taking the affidavit from the said Jim Hamler, the consignee, as provided -by section 7 of the act approved November 17, 1915. The offense is to these defendants having committed if the liquors therein mentioned were delivered to the consignee without first requiring the consignee to make the affidavit provided by law. . 4. It is not alleged, as it should be alleged, that affidavits were made by the said Jim Hamler, and that the affidavits disclosed that the delivery of the liquors-would cause the said Jim Hamler, the consignee, to receive and possess within the thirty-day period liquors of a quantity forbidden by law, and the delivery of the liquors, because of this, was not made, and that delivery of said liquors was not withheld as provided by law, but were delivered after the making of the said affidavit, or in the absence of affidavits provided by law said liquors were delivered.” The demurrer was overruled as to the second count, exceptions pendente lite were filed, and the case proceeded to trial, and resulted in a verdict against, the Southern Express Company.

      Robert C. & Philip H. Alston, Maddox, McCamy & Shumate, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The judge did not.err in overruling the demurrer to the second count of the indictment, which is quoted above. If all that is alleged therein is admitted as true, the defendant would not be guiltless. This count is based upon the first section of the act of November 15,1915 (Ga. Laws 1915, Extraordinary Session, p. 90) which is as follows: “Be it enacted by the General Assembly of Georgia, and it is hereby enacted by the authority of the same’, that it shall be unlawful for any railroad company, express company, or other common carrier, or any officer, agent or employee thereof, or any other person or corporation, to ship or to transprt' into or to deliver in this State, in any manner or by any means whatsoever, any spirituous, vinous, malted, fermented or other intoxicating liquors, of any kind from any other State, Territory or District of the United States, or place non-contiguous thereto, subject to the jurisdiction of the United States, or from any foreign country, to any person, firm or corporation within the territory of this State, when the said spirituous, vinous, malted, fermented or other intoxicating liquors, or any of them, are intended by the person interested therein to be received, possessed, sold or in any manner used either in the original package or otherwise, iii violation of any law of this State now in force, or of this act¿ or that may be hereafter enacted in this State, .or take effect therein.” Under the provisions of this section it is a misdemeanor (the penalty for the violation thereof being provided for in section 29 of the act) for any common carrier to deliver any of the liquors named therein when they “are intended by the person interested -therein to be received, possessed, sold or in any manner used either m the original package or otherwise, in violation of any law of this State now in force, or of this act, or that may be hereafter enacted in this State, or take effect therein.” See Hendry v. State, 147 Ga. 260 (2), 263 (93 S. E. 413). This act provides in section 16 that . “it shall -be unlawful for any person to receive, accept delivery of, possess or have in possession at one time, or within any period of thirty consecutive days, whether in one or more places, or whether in original packages, or otherwise, (1) more than one gallon of vinous liquor, or (2) more than six gallons (48 pints) of malted liquors or fermented liquors' such as beer, lager beer, ale, porter or other similar fermented or intoxicating or spirituous liquors either in bottles or other receptacles, or (3) more than two quarts of spirituous liquors or other intoxicating liquors, or other prohibited liquors beyond those named in subdivisions one and two, above.” It will thus be seen that for any person to have in his possession at any one time more than the amount of liquor -prescribed by section 16 is a violation of the law, a violation of “this act.” Hendry v. State, supra. See also Krachen v. State, 147 Ga. 198 (93 S. E. 198). It is therefore apparent that the allegations in the second count of the indictment made out a complete and legal charge. They show that the defendant did all of those acts which under the statute it is necessary to do to complete the crime.

The acts of delivery of liquors made crimes by the first and seventh sections of the act are entirely different and distinct. Section 1 makes the delivery of liquors unlawful when they are intended to be “received, possessed, sold, or in any manner used” in violation of law. Section 7, among other things, makes the delivery of liquors unlawful whether they are to be used for a lawful or unlawful purpose, “unless and until the consignee shall, before delivery, make an affidavit setting forth the name of the carrier or persons making such delivery, the place of delivery, the amount and kind of liquor to be received, the total amount and kind of such liquors received" or possessed by him during the thirty days last past and that the affiant is over the age of twenty-one years and is of temperate habits with the details mentioned in the form below.” Of course, if the liquors were delivered for a lawful purpose, and section 7 was complied with, this, if properly pleaded, would be a good defense to an indictment under section 1 of the act, if the defendant did not know, or by the exercise of ordinary diligence could not have discovered that the affidavit was false.

A necessary and essentiál element of the crime charged by the second count of the indictment is the delivery of intoxicating liquors within thirty consecutive days after a former delivery of such liquors. The indictment would be incomplete unless such delivery was alleged. Even though it might not have been neeessary in this count to have alleged the name of the agent who acted for the express company in delivering the liquor, yet when so alleged the name “is descriptive of the identity of that which is legally essential to the claim or charge” and can not be rejected as surplusage, but must be proved as alleged. “Bishop says Tf the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other1 Bishop’s C. P. secs. 234, 235. If the prosecutor state the offense with unnecessary particularity, he will be bound by that statement, and must prove it as laid: United States v. Brown, 3 McLean R., 233 [Fed. Cas. 14666]; Rex v. Dawlin, 5 T. R., 311.” Fulford v. State, 50 Ga. 593. See Pines v. State, 15 Ga. App. 348 (2) (83 S. E. 198); Caswell v. State, 5 Ga. App. 487 (63 S. E. 566); Crenshaw v. State, 64 Ga. 449; Berry v. State, 92 Ga. 48 (17 S. E. 1006); Woodson v. State, 114 Ga. 848 (40 S. E. 1013); Gully v. State, 116 Ga. 527, 530, 531 (42 S. E. 790); McLendon v. State, 121 Ga. 158 (48 S. E. 902). Of course, the rule discussed above would not apply “if any unnecessary averments, disconnected with the circumstances which constituted the stated crime,” be alleged. Such unnecessary averments need not be proved, but may be rejected as surplusage.

The indictment in this case charges that both deliveries of liquor were made by Lloyd. The defendant insists that this is not true, and supports its contention with evidence that the second delivery was made by one Highfield. Under these facts it was error for the court to ignore the contention of the defendant and to charge the jury that “the State insists that on June 3, 1916, the Southern Express Company, at its agency in Morganville in this county, delivered to one Jim Hamler 48 pints of malt liquors, and that at the time it delivered this malt liquor to Jim Hamler the agent or employee of the Southern Express Company making the delivery knew, or in the exercise of reasonable diligence ought to have known, that the same was intended by the said Jim Hamler to bé seized and possessed in violation of the laws of this State, in that he had within thirty days, on May 20th, 1916, received a similar shipment amounting to 48 pints of malt- liquors, and that for these reasons the Southern Express Company is guilty of a misdemeanor.” Especially was it error so to charge after the judge had said to counsel, in the presence of the jury, at the conclusion of the evidence: “I shall charge the jury if the deliveries made by the Southern Express Company, or any agent of the Southern Express Company, and at the time of the delivery the agent of the company knew or in the exercise of ordinary diligence ought to have known that he intended to possess it in violation of the prohibition laws of this State, that your client would be guilty irrespective of the allegation in the bill of indictment, so far as the allegations of the indictment that the deliveries were made by Lloyd are concerned.. I hold, if the deliveries were made by any agent of the Southern Express Company, if not made by Lloyd, subject to the conditions I have stated, it would be in violation of the laws as contained in this act.” Eor the error in the charge, pointed out above, the judgment must be

Reversed.

Broyles, P. J., and Harwell, J., concur.