author: Bloodworth, J. Luke, J.,

text:
    10764.
    SUMMERLIN v. THE STATE.
    Decided July 29, 1920.
    1. (a.) Primarily testimony as to an offer by one accused of crime to submit to arrest is not admissible in his behalf, it being in the nature of a self-serving declaration; and while such testimony has been held admissible in rebuttal where evidence as to the flight of the accused has been introduced on the part of the prosecution as tending to show conscious guilt, evidence that after the indictment against him was found, about two months after the date of the alleged crime, the accused went to the sheriff and surrendered himself would not rebut evidence tending to show flight just after the alleged crime and during the period preceding the return of the indictment. (6) A ground of a motion for a new trial excepting to the exclusion of testimony but not showing why it was excluded and not stating why its exclusion was error is not in proper form for consideration.
    2. As to the contention that the unintentional killing of a pregnant woman by the use of instruments with the intent to produce a miscarriage or abortion, under the state of facts alleged in the second count of the indictment, is not involuntary manslaughter in the commission of an unlawful act, but constitutes the crime defined in section 81 of the Penal Code (1910) as assault with intent to murder, the ease is controlled by the ruling of the Supreme Court on this count (see Summerlin v. State, ante, 565; 150 Ga. 173, 103 S. E. 461).
    3. 4, 7. The instructions by the court on the law as to principals in the second degree and as to what constitutes constructive presence are not subject to the exceptions taken; nor did the court err in using the language of the statute (Penal Code, § 82) as to the different means of producing an abortion besides that alleged to have been used in this case; and there is no merit in the exceptions to the refusal or failure to give certain instructions. The material issues in the case were covered by the charge of the court.
    5. Exceptions abandoned in the brief of counsel for the plaintiff in error will not be considered.
    6. The charge of the court as to the presumption of innocence is not subject to the exceptions taken.
    8. There was sufficient evidence to authorize the conviction of the accused.
    Conviction of involuntary manslaughter; from Clarke superior court — Judge Cobb. June 21, 1919.
    Application for certiorari was denied by the Supreme Court. Under an indictment in three counts, charging respectively (1) murder, (2) involuntary manslaughter in the commission of an unlawful act, and (3) assault with intent to murder, alleged to have been committed upon a pregnant woman by the use of instruments with the intent to produce a miscarriage and abortion, Summerlin was found guilty upon the second count, and found not guilty upon each of the other counts. The second count is set out in the opinion in Summerlin v. State, ante, 566, in which the court passed upon Summerlin’s exceptions to the overruling of a motion to arrest the judgment. The overruling of his motion for a new trial is complained of in a separate bill of exceptions. The order refusing a new trial was “based upon two reasons: 1st. The motion and amendment are nullities, as they seek to set aside only a portion of a single verdict, and this can not be done by motion for new trial; such a motion sets aside the entire verdict; a verdict is not separable in a case like the present. 2d. Bach and every ground of the motion and amendment is without merit.”
    1. The first ground dealt with in the following opinion is set out in full in the dissenting opinion (p. 573).
    2. Upon the ground that the facts alleged in the second count do not constitute the crime of involuntary manslaughter in the commission of an unlawful act, but constitute the crime defined in section 81 of the Penal Code as assault with intent to murder, it is alleged (ground 13) that the court erred in charging the jury on involuntary manslaughter. The admission of testimony as to dying declarations was objected to on the ground that the gravamen of the offenses charged in the second and third counts is abortion, and in such a case the declarations of the woman are. not competent evidence (grounds 5, 6, 7). The court instructed the jury that this evidence could be considered only with reference to-the second count.
    3. In ground 8 exception is taken to the refusal to give requested instructions to the jury to the effect that the mere performance of an operation by another person than the accused, to produce an abortion, in a room which was a part of the office of the accused, was not sufficient to authorize his conviction as principal in the first or the second degree; and that, it not being alleged that he was an accessory before the fact, and there being no evidence that he was present aiding and abetting the act, or kept watch or guard at a convenient distance, he could not be convicted as an accessory before the fact. In ground 11 exception is taken to the refusal to give requested instructions, relating to the second count, to the effect that to convict, the allegation that the death was caused by the use of the instruments must be proved, and the child must have been quick. In ground 12 it is alleged that the court erred in refusing to charge that “a room wherein an abortion may be or has been committed is not evidence of the guilt of the owner of the room of the abortion committed therein, if there be no other evidence of the participation of the owner of said room in the perpetration of the alleged abortion. ”
    4. In ground 15 it is complained that the court failed to charge that the accused could not be convicted under the second count without proof of the allegation as to the operation not having been advised by two physicians to be necessary to save the life of the woman. Ground 9 complains of the charge on the law of principals in the first and second degrees, as relating to the second count of the indictment. The charge referred to is in the language of the Penal Code (1910), § 42, down to the words “constructive presence,” and'adds a definition of that term as follows: “By a constructive presence is meant such a state of facts as to the place at which the alleged principal was, and his relation to the offense, as that a jury would be authorized to find that although actually not present at the very place that the alleged crime was committed, he was in legal • contemplation present at the commission of the offense. ” It is alleged that the court erred in so charging, because there was no competent evidence to connect the defendant with the commission of the crime as principal in the second degree, and, further, because the court failed to explain the meaning of “legal contemplation,” and failed to give the meaning of “constructive presence” as given in the code' section quoted from (§ 42), as follows: “there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, and 'another keeps watch or guard at some convenient distance.” In ground 17 instructions in the language of section 82 of the Penal Code (1910), as to the unlawful use of instruments or other means to produce a miscarriage or abortion, are complained of on the ground that the court should not have charged as to other means than instruments, since no other means than instruments were alleged in the indictment.
    6. The instructions as to the presumption of innocence, set out in division 6 of the opinion of the court, are complained of on the ground that the judge failed to instruct the jury that this presumption is in the nature of evidence in behalf of the accused, and goes with him throughout his entire trial until overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt.
    7. In ground 16 it is alleged that the 'court erred “in not charging the jury upon the law as relating to the direct cause of the death of the deceased under the second count;” because the evidence showed that a named doctor other than the accused performed several operations on the deceased, which could have caused her death instead of the operation alleged to have been performed by the accused; and it is contended that the court should have charged that if the jury had a reasonable doubt as to which of the operations caused the death, it was their duty to acquit the accused.

      William M. Howard, Green & Michael, Wolver M. Smith, John B. Gamble, for plaintiff in error.

      W. O. Dean, solicitor-general, T. W. Rucker, Stephen G. Upson, contra.
   Bloodworth, J.

One of the grounds of the motion for a new trial alleges error as follows: “Because the court refused to allow the witness W. E. Jackson, sheriff of Clarke county, while on the stand as a witness for the State, to -answer the following question propounded to him by movant’s counsel, to wit: Q. ‘When and how did he (Dr. M. T. Summerlin) come into your, custody as sheriff and jailer of this county? Movant then and there insisted and stated to the court that if the witness was permitted to answer said question, he would testify that, ’after the presentment was found against the defendant M. T. Summerlin, he, M. T. Summerlin, presented himself to W. E. Jackson, as sheriff of said county, and voluntarily surrendered himself to W. E. Jackson as sheriff of said county, after said presentment was found against him.” In Dixon v. State, 12 Ga. App. 17 (3) (76 S. E. 794), it is said that “while, primarily, testimony that one accused of crime voluntarily submitted himself to arrest is inadmissible, as being of the same nature as a self-serving declaration, still, where testimony has been introduced on the part' of the prosecution, tending to show flight, as evidence of conscious guilt, it is competent for the accused to rebut it by evidence showing that, so far from attempting to escape, he notified the sheriff of his desire to submit himself to custody,” This exception to the general rule does not apply to the instant case. In this ease the indictment, which was returned at the April term (fixed by law for the second Monday), alleges that the offense was committed on the 20th day of February. Evidence that after the presentment was found, which was about two months subsequent to the date of the alleged crime, the accused presented himself to the sheriff and voluntarily surrendered, would not rebut the evidence tending to show flight just after the commission of the alleged crime and during the period preceding the return of the indictment. In addition to the above, this ground of the motion is “too indefinite to raise any question for consideration by this court, as it does not show what were the objections sustained by the court, nor wherein the court erred in sustaining them and in excluding the evidence,” but shows only the reason urged why its introduction was proper. See, in this connection, Central of Ga. Ry. Co. v. Jaques, 23 Ga. App. 396 (2) (98 S. E. 357); Steed v. Cruse, 70 Ga. 168 (4).

In the case of Summerlin v. State, 150 Ga. 173 (103 S. E. 461), the Supreme Court decided that the facts alleged in the second count of the indictment in this case constituted the offense of involuntary manslaughter in the commission of an unlawful act. See also ante, 565 (103 S. E. 830). Under that ruling the judge did not err in admitting the evidence of which complaint is made in grounds 5, 6, and 7 of the motion for a new trial. For the same reason the court did not err in charging as complained of in ground 13.

The court did not err in refusing to give to the jury the requested instructions set out in grounds 8, 11, and 12 of the motion for a new trial.

When all the facts and circumstances of the case are considered, and in the light of the charge as given, the judge did not err in not charging as set out in ground 15 of the motion for a new trial, nor in charging as complained bf in grounds 9 and 17.

In the brief of counsel for the plaintiff in error ground 10 of the motion for a new trial is specifically abandoned.

The judge charged the jury that “the law presumes every person to be innocent of crime until his guilt has been established in the manner prescribed by law, and this presumption remains with a man throughout his trial, until it is overcome' by evidence which satisfies the mind and the conscience of the jury of the guilt of the accused of the crime charged in the indictment, or, if there are one or more counts in the indictment, of one or more of the counts Of the crimes charged in the several counts. 77 This excerpt from the charge is not erroneous when read in the light of the entire charge. See Mauldin v. State, 23 Ga. App. 537 (99 S. E. 50), and cit. Nor is this portion of the charge rendered erroneous because the judge in connection therewith failed to charge that “the presumption of innocence remains with a man, in the nature of evidence in his behalf, throughout his entire trial, until it is overcome by evidence which satisfies the mind and the conscience of the jury of the guilt of the accused of the crime charged in the indictment beyond a reasonable doubt."

Ground 16 of the motion for a new trial is without merit. The charge as given covers all the material issues in the ease, and if the plaintiff in error desired a more specific charge “upon the law as relating to the direct cause of the death of the deceased under the second count,” he should have made a written request therefor as provided by § 1087 of the Penal Code and § 6084 of the Civil Code of 1910.

In addition to the other testimony on this line, a witness for the State, testifying as to the dying declaration of the person alleged to have been killed, testified: “ She said Dr. Summerlin was the cause of it, — said they performed an operation on her, and I asked her who ‘they was, and she said Dr. Summerlin and Dr. Waters; the operation was performed in Dr. Summerlin’s office; they made her swear she would not tell it. There is evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., concurs.

Luke, J.,

dissenting. 1. I do not agree with the majority view of the court as announced in the first division of the decision. The ground there referred to, just as presented in the motion and argued to this court, is as follows: “ Because the court refused to allow the witness W. E. Jackson, sheriff of Clarke county, while on the stand as a witness for the State, to answer the following question propounded to him by movant’s counsel, to wit: Q. When and how did he (Dr. M. T. Summerlin) come into your custody as sheriff and jailer of this county?’ Movant then and there insisted and stated to the court that if the witness was permitted to answer said question, he would testify that, after the presentment was found against the defendant M. T. Summerlin, he, M. T. Summerlin, presented himself to W. E. Jackson, as sheriff of said county, and voluntarily surrendered himself to W. E. Jackson as sheriff of said county, after said presentment was found against him. The judge, being then and there informed as to what the answer of the witness would be if he had been allowed to testify in response to said question, and having refused to ■permit the witness to answer said question, committed error, in that the State had endeavored to prove by the witness Jackson that the defendant M. T. Summerlin had not been in Athens for some time, and that the defendant had been away for some time, for the purpose of showing flight, as evidence of his conscious guilt; and the State likewise introduced testimony from various other witnesses seeking to show flight, as evidence of his conscious guilt; the defendant was entitled to establish, as an explanation and in. rebuttal to said testimony, that he voluntarily surrendered himself to the sheriff of said county when he learned that said presentment had been found and returned into court against him. The testimony introduced by the State upon the subject of flight is as follows: Epson Harper testified for the State as to the flight of the defendant, as follows: ‘I have charge of the Southern Mutual Building.’ Q. ‘Since the first day of March I will ask you whether or not Dr. Summerlin has been there?’ (Southern Mutual Building.) A. ‘I don’t know, sir. I couldn’t tell you, to save my life, what date it was.’ Q. ‘You remember the day he was said to have fainted on the elevator?’ A. ‘I remember the.day, but not the date.’ Q. ‘Have you seen him there since that time?’ A. ‘I don’t think I have. I am not sure. I have talked to him over the telephone. ’ Chief of police Henry Beussee testified for the State as to flight of the defendant, as follows: Q. ‘I mean from the first day of March on through April?’ A. ‘I don’t remember seeing him.’ Q. ‘Didn’t see him in town during that time?’ A. ‘I don’t remember seeing him after the day he was lying on the floor sick.’ Dr. A. C. Holliday testified for the State as to flight of the defendant, 'as follows: Q. ‘What day of the month was it when you had that conversation with him?’ A. ‘That was the first day of March this year.’’ Q. ‘Has Dr. Summerlin been back to his office, of your knowledge, since that time?’ A ‘No, sir.’ Q. ‘Has he been in Athens -since that time, if you know it?’ A. ‘I don’t know. I haven’t seen him, — not of my knowledge.’ Walter E. Jackson, sheriff of Clarke county, testified as a witness for the State, as to the flight of the defendant (after the aforesaid witness had testified), as follows: Q. ‘You know whether he has been in Athens since the 20th day of February,— I mean the 1st day of March?’ A. ‘First day of March?’ Q. ‘Yes.’ A. ‘No, sir. I don’t know what time he left, but he has been away some time.'’ Movant then and there excepted, and here and now excepts and assigns as error the ruling of the court in refusing to permit the defendant to prove by the witness W. E. Jackson that he (M. T. Summerlin) voluntarily returned to Athens, Georgia, and surrendered to the sheriff of Clarke county, Georgia, W. E. Jackson, so soon as he was aware of said presentment-having been returned against him, as an explanation and in rebuttal of said evidence of his having fled from the crime as charged against him. ”

This court said in Dixon v. State, 12 Ga. App. 17 (3) (76 S. E. 794) : “ While, primarily, testimony that one accused of crime voluntarily submitted himself to arrest is inadmissible, 'as being of the same nature as a self-serving declaration, still, where testimony has been introduced on the part of the prosecution, tending to show flight, as evidence of conscious guilt, it is competent for the accused to rebut it by evidence showing that, so far from attempting to escape, he notified the sheriff of his desire to submit himself to custody.” Aside from this decision as a precedent, it is manifestly unfair, in my opinion, for the State to be permitted to introduce evidence of flight and reap its advantages without allowing the defendant to rebut it. Especially in this instance is it unfair, because the very witness that was testifying and giving evidence tending to show flight was, upon cross-examination, instructed by the court not to answer a question from the defendant’s counsel the answer to which, the court was advised, would tend to rebut the evidence of conscious guilt by reason of a circumstantial- proof of flight. The court disarmed the defendant of a weapon which in all fairness he had a right to use for the purpose of explaining his conduct.

In my opinion the cases of Central of Georgia Ry. Co. v. Jaques, and Stead v. Cruse, cited in the decision, are not controlling authority as to the ground of the motion for a new trial here discussed. In my opinion it was not necessary in this particular instance for the movant to show in his motion for a new trial upon what ground the court refused to allow him to ask the witness, on cross-examination, the question, and elicit the answer which his motion shows he would have gotten. In addition to what I have said I think the defendant was entitled to ask this question upon cross-examination, under the broad right to make a thorough and sifting examination.

2, 3. I do not agree with the rulings announced in the third and fourth divisions of the decision. I think the requests to charge were pertinent, and, from a most careful examination of the charge of the court as a whole, I do not think the requests were in substance given. It was necessary, in my opinion, for the court to deal specifically and fully with the questions raised by the timely written requests.

8. In addition to what I have said, I do not think that the evidence in this case supported the verdict. The defendant was convicted of the offense of involuntary manslaughter in the commission of an unlawful act. The very best evidence and the only evidence which connected the defendant with the commission of the crime yras the dying declarations of the deceased which' were testified to by one of the doctors who was with her shortly before her death. Her death was occasioned by an abortion. Her dying declaration was that Dr. Summerlin, the defendant in this case, was the father of the child, and that Dr. Waters produced the abortion in Dr. Summerlin’s office. The deceased, in her dying declaration, did not say that Dr. Summerlin, this defendant, advised the abortion or aided in it, or had anything to do with it. There was no other evidence which connected this defendant with the crime charged. This court said, in Butler v. State, 11 Ga. App. 815 (76 S. E. 368) : “Mere proof of presence by the accused, when the criminal act was committed by another, and of subsequent flight, does not, in the absence of evidence showing that the accused advised or abetted the commission of the crime, authorize his conviction.” The Supreme Court said, in Futch v. State, 137 Ga. 76 (3a) (72 S. E. 911) : “Mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of a crime by a defendant sought to be held responsible for the homicide as aiding and abetting the actual perpetrator, unless such defendant participated in the felonious design of the person killing.” In the case which we have here for review there is not one word of evidence which connects this defendant with the killing of the deceased. The nearest approach we have to it is that another person in the office of this defendant committed the crime, with not one word of evidence that the defendant knew that the crime was being committed, or counselled it or advised it. For this reason I do not think the verdict was authorized by the evidence.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    10800.
    WATERS v. THE STATE.
    Decided July 29, 1920.
    1. Under the ruling of the Supreme Court in Summerlin v. State, 150 Ga. 173 (103 S. E. 41), the court did not err in overruling the demurrer to the presentment.
    2. The court did not err in denying the defendant’s motion to require the State to elect upon which count of the presentment it would place the defendant on trial, or in allowing the State to try the defendant under all three of the counts.
    3. Where a paper which is capable of influencing the jury on the side of the prevailing party goes to the jury by accident and is read by them, the verdict will be set aside.
    4. None of the other special grounds of the motion for a new trial shows reversible error.
    Conviction of involuntary manslaughter; from Clarke superior court—Judge Cobb. June 21, 1919.

      W. M. Howard, Green & Michael, W. M. Smith, John B. Gamble, for plaintiff in error.

      W. O. Dean, solicitor-general, T. W. Rucker, S. C. Upson, contra.
   Broyles, C. J.

The 3d headnote alone needs elaboration. The 7th special ground of the motion for a new trial is as follows: “ Because the verdict of the jury in the ease of The State vs. M. T. Summerlin, who was jointly indicted with movant, was allowed to be carried out by the jury trying movant and kept by said jury while considering movant’s case. The verdict of the jury in the said case of the State vs. M. T. Summerlin was as follows: ‘1. We, the jury, find the defendant M. T. Summerlin not guilty of the ofíense of murder, as under the 1st count. 2. We, the jury, find the defendant M. T. Summerlin guilty of involuntary manslaughter in the commission of an unlawful act, as under the second count. 3. We, the jury, find the defendant M. T. Summerlin not guilty of assault with intent to murder, as under the third count. May 16th, 1919. B. T. Goodwin Sr., Foreman. ’ Said verdict was not written on the presentment, but was written on a separate sheet of paper which was pinned to said presentment. On the trial of movant said verdict was detached by counsel for movant and delivered to the clerk of said court, and, just before the charge of the court, the solicitor-general asked counsel for movant, in open court, if they wanted the verdict in the case of The State vs. M. T. Summerlin to go out with the jury with the presentment. Counsel for movant then and there and in open court objected to said verdict being sent out with the jury, but in some manner, unknown to movant or his counsel, said verdict did go out with said jury, and this without the knowledge or consent and over the objection in open court of movant. That the verdict of the jury finding guilty M. T. Summerlin, who was a joint defendant in said presentment with movant, was allowed to go out with the jury trying movant was error and highly prejudicial to movant, for the reason that said verdict had no bearing on the guilt or innocence of movant; and that the same was highly prejudicial to movant is shown hy the fact that the jury trying movant made a faithful copy of said verdict, even to the unnecessary details of copying the following letters and figures at the heading of the same: ‘Ent. 45-585,’ the same being the notation that the clerk of the court had made on the verdict in said Summerlin case, showing that said verdict had been entered in minute book 45, page 585; the verdict rendered in movant’s case being an exact copy as to each count of the verdict in the case of The State vs. Summerlin, with the exception of the necessary changes in names of defendant, foreman of jury, and dates of rendition, the verdict rendered in movant’s case being as follows: *Ent. 45-585. 1. We, the jury, find the defendant W. G. Waters not guilty of the offense of murder, as under the 1st count. 2. We, the jury, find the defendant W. G. Waters guilty of involuntary manslaughter in the commission of an unlawful act, as under the second count. 3. We, the jury, find the defendant W. G. Waters not guilty of assault with intent to murder as under' the third count. May 21st, 1919. I. N. Butler, Foreman. ” The judge’s note qualifying his approval of this ground is as follows: “As to the 7th ground this statement is now made: There was no motion to the court to cover or detach the verdict on the Summerlin case, and there was no ruling by the court of any character on the subject-matter of the 7th ground.”

In Killen v. Sistrunk, 7 Ga. 283, it is held that “where a paper, which is capable of influencing the jury on the side of the prevailing party, goes to the jury by accident and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper; aliter where the paper is not read.” This ruling has been uniformly followed by the Supreme Court and by this court. In the instant case it is evident, from all the facts stated in the motion for a new trial, that the jury read the Summerlin verdict before they wrote their verdict in this case, and it is probable that the reading of the former verdict influenced them in their finding in this case. The fact, as stated by the judge in his note, that counsel for the defendant made no motion to the court to have the paper on which the Summerlin verdict was written kept from the jury, does not, under all the other facts shown, render this ground unmeritorious. If the Summerlin verdict had been written on the presentment itself, we would hold that counsel for the defendant should have made such 'a motion to the court. It is shown, however, that the Summerlin verdict was written on a separate sheet of paper, which was pinned to the presentment in the instant case; that counsel for the defendant, before the papers were submitted to the jury, detached from the presentment the paper containing the Summerlin verdict and handed it to the clerk of the court; that when the solicitor-general asked counsel for the defendant in.open court if they wanted the verdict in the Summerlin case to go out with the presentment, to the jury, counsel for the defendant objected to said verdict being sent out with the jury. An inference is clearly demanded, from this ground of the motion, that the solicitor-general accepted this objection of counsel for the defendant as finally disposing of the question, and that it was mutually understood and tacitly agreed by both parties that the paper in question would not be submitted to the jury, and that through accident it was given to them. Under these circumstances we think that counsel for the defendant exercised proper diligence in the premises. On account of this prejudicial paper having gone to the jury, the defendant did not have a fair trial such' as the law requires, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    11341.
    SOUTHERN OLDSMOBILE CO. v. BAKER.
    1. In the trial of a statutory claim to property levied on under a mortgage fi. fa., proof of either possession or title in the mortgagor at the date of the mortgage, together with proof of possession in him, or in the legal representative of his estate, at the date of the levy, raises a presumption that the property is subject to the fi. fa. Civil Code (1910), § 5170; Morris v. Winkles, 88 Ga. 717 (1) (15 S. E. 747). This presumption, however, is prima facie only, and may be rebutted by clear and unequivocal proof establishing a superior right in the claimant. Green v. Wade Chambers Grocery Co. 19 Ga. App. 454 791 S. E. 789); Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 85 (4) (94 S. E. 65).
    2. Generally a chattel mortgage executed by a husband must on his death yield to the right of his family to a year’s support out of his estate. Civil Code (1910), § 4041; Cole v. Elfe, 23 Ga. 235; Puffer v. Caldwell, 111 Ga. 798 (2) (36 S. E. 927.) The only exception to this rule is in the case of a purchase-money mortgage expressly reciting that it is executed and delivered for the purpose of securing the debt for purchase-money. Civil Code (1910), § 4049; Corbitt v. Newbern, 132 Ga. 457 (64 S. E. 479).
    3. The requirement of section 4043 of the Civil Code (1910), that, upon the return of appraisers setting apart a year’s support to the family of a decedent, “the ordinary shall . . publish notice as required in the appointment of permanent administrators, ” is sufficiently complied with where the proper advertisement is inserted in the official organ of the county four times, in as many separate, consecutive weeks, and the first insertion so made is in an issue of the paper published twenty-eight or more days before such return of the appraisers is made the final judgment of the court. Civil Code (1910), § 3970; Bentley v. Shingler, 111 Ga. 780 (2) (36 S. E. 935).
    4. Where the final order of the ordinary upon such a return recites that notice has been published “ as required by law, ” and the entire record with respect to the year’s support is on its face full and complete, the recital must be accepted as true, in the absence of aliunde evidence conclusively showing that it is in fact untrue. Park’s Ann. Code, § 5736, and annotations under the catchwords “Courts and judicial officers” (p. 3797). See also Winn v. Lunsford, 130 Ga. 436 (1) (61 S. E. 9).
    Decided July 29, 1920.
    5. Where it appears that five weeks elapsed between the date of the citation and the final order of the ordinary on the return of appraisers setting apart a year’s support to the family of a decedent, proof that notice of the proceeding was not published during the fifth week is insufficient to show that such notice was not published “once a week for four weeks;” nor can it overcome the presumption in favor of such final order of the ordinary reciting that the notice “ had been published as required by law. ” Winn v. Lunsford, supra; Carter v. Copeland, 147 Ga. 417 (94 S. E. 225).
    6. The court did not err in excluding proof of the character indicated in the preceding paragraph.
    7. The evidence as a whole, with all reasonable deductions and inferences therefrom, demanded a verdict finding the property not subject to the fi. fa. It follows that the court did not err in directing a verdict accordingly. Civil Code (1910), § 5926.
    Levy and claim; from Miller superior court — Judge Worrill. January 10, 1920.

      P. D. Rich, J. H. Tipton, for plaintiff.

      W. I. Geer, contra.
   Luke, J.

The Southern Oldsmobile Company foreclosed against Mrs. Annie Baker, as administratrix of George D. Baker, deceased, its mortgage on a certain automobile, executed by the decedent to secure a debt of $1,050, “for value received.” The entry of levy recites that the property was “found in the possession of Mrs. Annie Baker.” A statutory claim was interposed by Mrs. Baker, denying that the automobile was the property of the estate of her deceased husband, George D. Baker, and asserting that it was her own individual property. Upon the trial the judge directed a verdict finding the property not subject to the mortgage fi. fa. The plaintiff thereupon moved for a new trial, which was overruled, and it excepted.

The first and second headnotes need no elaboration.

Upon the trial of the claim the plaintiff in fi. fa. made out a prima facie case, in accordance with the principles stated in the first headnote. The claimant established her superior right under the principles stated in the second headnote. The mortgage did not on its face show that it was given to secure purchase-money; and the claimant showed that she was the widow of the deceased mortgagor, and put in evidence an exemplification of the record of a proceeding in the court of ordinary, setting apart to her, out of the mortgagor’s estate, the identical automobile in question, as a year’s support. The exemplification from the court of ordinary was upon its face regular and complete in all respects, the final judgment of the ordinary reciting that “ citation had issued and been published as required by. law.” The citation itself was dated December 3, 1918, while the final judgment of the ordinary was dated January 6, 1919. ' In rebuttal of the claimant’s showing, the plaintiff in fi. fa. offered to prove that one issue of the official organ of the county between those two dates, to wit, the issue of January 1, 1919, did not contain any notice of the said proceeding in the court of ordinary; but this evidence was excluded by the court, and the judgment excluding it is assigned as error.

By section 4043 of the Civil Code (1910) it is required that, upon the “filing of the return of appraisers setting apart a year’s support, “the ordinary shall . . publish notice as required in the appointment of permanent administrators.” By section 3970, with reference to permanent administrators, it is provided that “The ordinary must issue a citation, giving notice of the application to all concerned, in the gazette in which the county advertisements are usually published, once a week for four weeks.” In so far as the publication of notice is concerned, the sole requirement of section 4043 therefore is publication “ once a. week for four weeks.” In Bentley v. Shingler, 111 Ga. 780 (2) (36 S. E. 935), the Supreme Court, in dealing with the same expression in a different statute, but upon substantially similar facts, held: “A statutory requirement that a given advertisement shall be published in a designated newspaper ‘once a week for four weeks,’ before a particular thing can lawfully be done, is complied with if the advertisement be inserted in that paper four times, in as many separate, consecutive weeks, and the first insertion is made in an issue of the paper published twenty-eight or more days before the thing in question is done.” Under that decision the excluded evidence, even if it had been admitted, could have served no lawful purpose. It could have shown only that the notice was not published in the last of five weeks in which it might have been published, and would not even have tended to contradict the recital in the judgment that it had been published as required by law. But it is insisted that the language of section 6063 of the Civil Code (1910) makes it necessary for the advertisement to run during the four weeks “immediately preceding the term or day when the order is to be granted.” A sufficient reply to this contention is that the purpose of the provisions of section 6063 was to relax, and not to increase, the stringency of the provisions of the older sections of the code to which section 6063 relates. While this section expressly declares that publication during the last four weeks “shall be sufficient,” yet it nowhere declares, either expressly or by necessary implication, that the first four out df five preceding weeks shall be insufficient. Furthermore, on leaving the letter of the. law and looking to its practical application, to advertise during the first four rather than the last four weeks of a given five-weeks period would seem to be to the advantage of none but those who would resist the thing contemplated, in that it gives them one week more in which to prepare to resist the object of the person causing the notice to be given. We think, therefore, that the complaint is wholly without merit.

The evidence admitted demanded the verdict directed. The evidence excluded would not have changed the result if it had been admitted. For no reason assigned in the motion for a new trial was the plaintiff in fi. fa. entitled to have the verdict set aside or a new trial granted.

Judgment affirmed,

Broyles, C. J., and Bloodworth, J., concur.


text:
    111350.
    NEWCOMB HOTEL COMPANY v. CORBETT.
    Decided July 29, 1920.
    The allegations as to the conduct of the hotel employees in regard to the plaintiff, a female guest whose room while occupied by her at night was entered by a police officer with a detective of the hotel, stated a cause of action against the hotel company, under the former decision of this court in this case (24 Ga. App. 533) ; and the subsequent amendment of the plaintiff’s petition did not render the petition subject to the demurrer filed thereafter.
    Whether .the amendment was of sufficient materiality to open the petition to demurrer at the trial term is a question not raised, and therefore not decided.

      Action for damages; from city court of Savannah •—• Judge Freeman. February 9, 1920.
    While in her bedroom at night as a guest in the Hotel Savannah, the plaintiff (according to the allegations of lier petition) was called from her bed, through the telephone in the room, and shortly afterwards the house detective rapped repeatedly at the room-door, telling her to open it, and he finally opened it with a pass-key, and entered, accompanied by a police officer, who told her that they expected to find a man in the room, and had made a mistake. She alleged that she had conducted herself in a proper and ladylike manner and was entitled to the protection of the defendant,— the corporation conducting the hotel; and that the telephone calls, the rapping on the door, and the action of the police officer were all caused by servants and agents of the defendant, who falsely informed the police officer that acts of immorality were being conducted in the room; and that the servants and agents referred to were the night clerk of the hotel, and the defendant’s telephone operator and its house detective. The ease came to the Court of Appeals on exceptions to the overruling of a demurrer, and the judgment was affirmed. A more full statement of the allegations of the petition will be found in the reporter’s statement of the ease in 24 Ga. App. 533.
    By subsequent amendment the plaintiff alleged, that the night clerk in charge of the hotel violated the duty of protection which the defendant owed her, in permitting the police officer to come to her room without a criminal warrant, in permitting the house detective to accompany the officer to the room for the purpose of disturbing her, in failing to afford protection to her when advised that she was being annoyed by the police officer and other persons attempting to enter her room, and in not affording the protection to which she was entitled after the night clerk was advised that the police officer would visit her room for the purpose of searching for a man supposed to be in the room. The allegation as to the information given to the police officer was amended as follows: “That is to say, the police officer informed the night clerk that a woman had entered the room accompanied by a man, that the night clerk then and there, 'after looking over the register, told said police officer that your petitioner fitted the description of the woman in question, and said night clerk and said police officer, after conference, agreed that your petitioner was the woman in question, and afterwards assisted the police officer in all that was done, as herein set forth.” The petition as thus amended was demurred to generally and on the ground that the amendment set forth a new and distinct cause of action; and various paragraphs were demurred to as being contradictory and as stating mere conclusions of the pleader, and on other grounds.
    As to the cause of action counsel for plaintiff
    cited: DeWolf v. Ford, 193 N. Y. 397 (86 N. E. 527, 21 L. R. A. (N. S.) 860); Lehnen v. Hines, 88 Kan. 58 (127 Pac. 612, 42 L. R. A. (N. S.) 830).

      E. S. Elliott, O’Byrne, Hartridge & Wright, for plaintiff.

      Robert L. Colding, Oliver & Oliver, for defendant.
   Luke, J.

On a former review of this case it was held: “ The amended petition, properly construed as a whole, was not subject to any ground, either general or special, of the demurrer interposed, and the court properly so ruled.” See Newcomb Hotel v. Corbett, 24 Ga. App. 533 (101 S. E. 713). At the trial term the plaintiff offered another amendment to the petition, which appears to have been allowed without objection, wherein the defendant’s acts of negligence, as deduced from the facts previously pleaded, were grouped together in the form of terse subparagraphs. The defendant thereupon filed a new demurrer, which was overruled,. and it 'again excepted. Held: (a) The court did not err in overruling the demurrer. (b) Whether the amendment was of sufficient materiality to open the petition to demurrer at the trial term is a question not raised, and therefore not decided; but see Park’s Ann. Code, § 5652, and annotations.

Judgment affirmed,

Broyles, C. J., and Bloodworth, J., concur.


text:
    11464.
    ROWELL v. HARRELL REALTY COMPANY.
    Decided July 29, 1920.
    An option granting tlie right to purchase land within a specified time is not such an evidence of indebtedness as is contemplated by section 4285 of the Civil Code (1910), which provides that “evidences of debt maturing on Sunday or a public holiday shall be payable on the next business day thereafter; ” and the time specified in the option is not extended by the fact that the last da.y named for performance falls on Sunday.

      Action on contract; from Colquitt superior court — Judge Thomas. April 5, 1920.

      James Humphreys, Dowling & Askew, for plaintiff in error.

      T. H. Parker, Hill & Gibson, contra.
   Luke, J.

Harrell Realty Company sued W. M. Rowell for alleged breach of a written contract whereby the latter, in consideration of one - dollar in hand paid, agreed to sell to the former, or to any one designated by that company, certain described land, provided the trade should be closed “on or before the first day of December, 1918,” either by payment of the full price or by a cash payment of $500 and. the giving of notes in stipulated amounts and payable at stated times for the balance. The first day of December, 1918, fell on Sunday. Harrell Eealty Company pleaded that on Monday, December 2, 1918, it tendered to Eowell the $500 in cash and the notes provided for in the contract, and that the tender and notes were refused. Eowell demurred generally to the petition, “because the petition shows upon its face that the alleged tender to the plaintiff was not made within the time prescribed by the contract.” The judge overruled the demurrer, and error is assigned upon that ruling.

As we construe this petition there is but one question to be decided, and that is whether by statute the time limit granted in the option may be extended one day longer than that named in the option, because the last day named in the option happened to fall on Sunday. At common law judicial proceedings only were prohibited on Sunday. A person was-not prohibited from doing his ordinary labor on Sunday, and the making of contracts was lawful. See 27 Am. & Eng. Enc. L. (2d ed.) 389, and citations. “At common law, contracts made on Sunday were not invalid, and the statutes constitute the sole basis of the invalidity of Sunday contracts.” See Hayden v. Mitchell, 103 Ga. 440 (30 S. E. 287). Subsection 8 of section 4 of the Civil Code (1910) is as follows: “When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation.” The section begins as follows: “Construction of Statutes. The following rules shall govern the construction of all statutory enactments in this State.” It is evident that this section applies to statutory limitations, and has no effect upon contractual limitations. See Maxwell v. Liverpool Ins. Co., 12 Ga. App. 131 (76 S. E. 1036). Section 416 of the Penal Code (1910), which says, “Any person who shall pursue his business, or the work of his ordinary calling, on the Lord’s day, works of necessity or charity only excepted, shall be guilty of a misdemeanor,” has the effect of invalidating all such contracts as come within the ordinary callings of the persons affected. If it be granted that this statute covers the contract sued upon in this case, the effect of it would only be to inhibit the making of that contract on Sunday. Certainly it would not extend the time of performance another day.

Counsel for the defendant in error especially relies on section 4285 of the Civil Code (1910), and contends that this section covers the case, and that because of that section the defendant in error had the right to tender and ask performance under the option on December 2, 1918. That section is as follows: “Papers due on Sunday or a holiday. All bills, checks, notes, and other evidences of debt maturing on Sunday or a public holiday shall be payable on the next business day thereafter; and all hills, cheeks, notes, 'and other evidences of debt presentable, by their terms, for acceptance or payment on Sundays or on a public holiday shall be presentable for acceptance or payment on the next business day thereafter. By business day is meant a d'ay other than Sunday or a public holiday.” Patently an option contract to buy land is not a bill, check, or note; nor do we think it can be covered by the phrase “ other evidences of debt.” It is a well-settled rule of construction that when a statute enumerates by name certain specific things, and concludes with a general term of enlargement, this latter term is construed as being ejusdem generis with the things named. Grier v. State, 103 Ga. 429 (30 S. E. 255). “The general word which follows . . specific words of the same nature as itself, takes its meaning from them, and is presumed to be restricted to the same genus as those words; or, in other words, as comprehending only things of the same kind as those designated by them; unless, of course, there be something to show that a wider sense was intended.” Sanders v. State, 86 Ga. 720 (12 S. E. 1059). Bills, notes, and checks are strictly commercial papers, and payable at all events, are negotiable by simple endorsement, and frequently contain negotiable words. In construing section 4285 the phrase “other evidences of debt ” must take its meaning from “ bills, checks, and notes,” and is restricted to the same genus as those words. An option is a contract by which the owner of property agrees with another person that he shall have a right to buy the property at a fixed price within a certain time. Black v. Maddox, 104 Ga. 162 (30 S. E. 723). An option cannot be an evidence of debt and can not be included in the phrase “ other evidences of debt.” The Supreme Court held in Littlefield v. Clary, 66 Ga. 322, that a mortgage is not such an evidence of indebtedness as is contemplated in the statute which provides for the summary establishment of any lost “ bond, bill, note, draft, check, or other evidence of indebtedness.”

The petition in this case showing that time was of the essence of the contract, and that there was no offer to exercise the right to purchase the property under the option within the time limit contracted, and there being no statutory enactment which extends the time in the contract, it was error for the court to overrule the general demurrer to the petition.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11499.
    Moore v. Herring & Sparks.
    Decided July 29, 1920.
    Certiorari; from Bibb superior court — Judge Mathews. April 3, 1920.
   Luke, J.

1. This was a suit to recover the value of services rendered; and, under the evidence, it was for the jury in the municipal court to determine whether the defendant acted for himself or as agent for another in causing a third person to employ the plaintiffs to perform the services.

2. The portion of the charge of the court complained of in the petition for certiorari not being set out therein, or indicated except by reference to “ the second paragraph ” of the entire charge and the charge as a whole not being divided into numbered paragraphs, the assignment of error is too indefinite and vague to authorize its consideration by this court.

3. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., conewr.

Herring & Sparks, a firm of attorneys at law, sued A. B. Moore in the municipal court of Macon, alleging that he was indebted to them in the sum of $240 for professional services rendered by them; that he procured them to-examine the title to certain lots of land, for which services he agreed to pay a reasonable fee of 1% of its market value, and that its value was $24,000; that the plaintiffs performed their part of the contract and prepared abstracts of title to the land and delivered their certificate of title to C. B. Lewis, the agent authorized by the defendant to receive the same; that the defendant, through his agent C. B. Lewis, the latter being fully empowered to act in this capacity, procured the plaintiffs to render these professional services, on a promise to pay them the reasonable fee of lf0 of $24,000; that, since these services were rendered, the defendant expressly consented and agreed to pay this fee in consideration of the fact that L. B. Hamilton should pay him $1,700, this payment being made on condition that the defendant should relieve Hamilton from purchasing and paying for the said land, and on condition that the defendant should pay all costs, expenses, and attorney’s fees that might have accrued in the said transaction; and the defendant failed and refused to pay the said indebtedness. These allegations were denied in the defendant’s answer. At the trial there was evidence from which the following facts appeared: In a contract between Moore and Hamilton for the sale of.certain land by Moore to Hamilton it was agreed that Moore should furnish a clear title to the land, 'and the sale should be subject to examination and approval of the title. Hamilton, according to his testimony, told Moore to "turn over the deed” to C. B. Lewis, a friend of Hamilton, who would "pass on it” as to whether title was good, and Moore was to satisfy Lewis. According to Moore’s testimony Hamilton told him to turn the papers over to Lewis and tell Lewis to have them examined, and Moore turned over the papers to Lewis and told him to have them examined. Nothing was said then or before that time as to who was to be employed to examine the title -or as to payment for the examination. Lewis testified that Moore instructed him to have the titles examined for Hamilton by some lawyer that he (Lewis) might select, and he (Lewis) turned the papers over to Mr. Sparks, of the firm of Herring & Sparks, "to have the abstracts made of the property,” and "must have told him that they were to be examined for Hamilton, ” as this was the only instruction given by Moore. Sparks testified that when Lewis turned the deeds over to him and asked him to examine the titles, Lewis stated that the papers were left there by Moore, and that L. B. Hamilton was the purchaser of the property; and he (Sparks) told Lewis “all right,” and made the examination and abstracts and furnished abstracts and opinions to Hamilton and a bill for services, which Hamilton refused to pay. He assumed, from the fact that Hamilton was the purchaser, that Hamilton was to pay for these services; and when the investigation of the titles was about completed he inquired of Moore “regarding some discrepancies,” and Moore referred to the fact that Hamilton was to pay for the abstracting of the title. There was conflict in the testimony as to whether in a subsequent settlement between Moore and Hamilton it was agreed that Moore should pay the attorney’s fees. It was testified that the property was valued at $32,000, and that the services rendered by the plaintiffs were reasonably worth $240.

The trial of the case resulted in a verdict in favor of the plaintiffs, for $240; a motion for a new trial was overruled by the judge of the municipal court, and the defendant sued out certiorari, alleging that the judge erred in not granting a new trial, that the allegations of the plaintiffs’ petition were not supported by evidence, that the evidence did not conform to the pleadings, that the verdict and judgment were contrary to law and to the evidence, and that the court erred -in giving a charge to the jury “ directing that they would be authorized in law if they believed the evidence as the contention of the plaintiff was the truth of the case,” “said portion of the charge excepted to herein being paragraph 2 of said charge in accordance with exhibit B of this petition. ” In the charge as- set out in exhibit B is the following: “2. It is your sole duty to determine whether Mr. Moore made contract or agreed to pay this fee, or made contract with Mr. Hamilton, through Mr. Lewis, to furnish good and sufficient title to this property. If he did, he is liable; and if he did not, he is not liable.” This is the only numbered_part of the charge except the part preceded by “No. 3,” which immediately follows this extract. The judgment of the judge of the superior court was as follows: “In this ease I think there was evidence to authorize the jury to find that when Moore gave his deeds to C. B. Lewis and instructed him to procure abstract of title for Hamilton to the lands described in the deeds, he was giving these instructions for himself and not for Hamilton, and that therefore C. B. Lewis was his agent, and that Lewis’s act in engaging Herring & Sparks was the act of Moore. In the absence of material and hurtful errors of law on the trial in the municipal court, I think the verdict authorized, though not demanded; and I hereby overrule the certiorari.”

Oliver C. Hancock, for plaintiff in error,

cited: 18 Ga. App. 369, 374; 72 Ga. 205 (Gunter v. Mooney); 99 Ga. 408; 137 Ga. 615; Park’s Ann. Code, § 5516; 8 Ga. App. 652; 10 Ga. App. 287; 105 Ga. 70; 110 Ga. 302; 114 Ga. 624; 116 Ga. 63; 117 Ga. 881; 136 Ga. 303.

P. F. Brock, contra,

cited: 132 Ga. 51; 24 Ga. App. 497 (5); 39 Ga. 708 (2, 3), 712; 49 Ga. 268 (3); 53 Ga. 318 (3); 2 Smith’s Leading Cases, 368, note to Thompson v. Davenport.


text:
    11513.
    Hays v. The State.
    Decided July 29, 1920.
    Indictment for misdemeanor; from "Whitfield superior court — Judge Tarver. April 17, 1920.

      R. H. House, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Broyles, C. J.

1. “ When all the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a hare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved.” Womble v. State, 107 Ga. 666, 667 (3), 669 (33 S. E. 630), and authorities cited. See also Davis v. State, 7 Ga. App. 332 (66 S. E. 960). Under this ruling the venue in the instant case was sufficiently shown.

2. There was some evidence which authorized the jury to And that the defendant had sold a portion of the mortgaged property before the payment of the mortgage debt, without the consent of, and with the intent to defraud, the mortgagee, and that loss was thereby sustained by the latter; and the trial judge having approved the defendant’s conviction, and no error of law appearing, this court is without authority to reverse the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11605.
    Beckham v. Jacobs’ Pharmacy Company.
    Decided July 29, 1920.
    Action for damages; from Fulton superior court — Judge Pendleton. May 10, 1920.
    The action was for damages on account of alleged injury from drinking a beverage sold as harmless and refreshing, which the plaintiff alleged contained a poisonous or deleterious substance. The petition as amended alleges: that on February 25, 1919, he went into a certain drug-store of the defendant and bought at the soda fountain a drink of coca-cola and celery, made in a glass goblet by an employee of the defendant; and, noticing a peculiar taste in the drink, he drank about three fourths of it, paid for it, and went immediately to his home, and was there seized with violent pains in his arms and shoulders .and around his heart; that he took an emetic, to expel the drink from his stomach, and, feeling no better after its expulsion, he went to a near-by drugstore, and was there examined by doctors, who found that he had been poisoned by some unknown chemical poison that had been taken internally and had the effect of stopping his circulatory system, depressing his heart action and turning him black in the face and hands. These doctors worked on him for a considerable time, to keep him from dying, giving him stimulants and medicines to stimulate his heart action. During all this time he suffered great pain and agony in mind and body, being fearful that he was going to die from the effects of the poison. He was confined to his bed, under the care of a physician, for five days, and the sole cause of the poisoning and sickness was the drinking of the coca-cola and celery. He had no knowledge of and no opportunity of knowing the exact contents of the glass of coca-cola and celery, but relied on the defendant serving him the harmless article of drink that he had ordered. Up to the time of this sickness he had excellent health and vigor, but since this sickness his heart action has been weak and his blood circulation poor, and he suffers from fatigue and exhaustion after the slightest exercise, and labors under fear that the poisoning may yet hasten his death. Expense for physician’s services and medicines, and loss of earnings, in stated sums, are alleged; and it is alleged that the poisoning was due solely to negligence of the defendant, (a) in serving in the coca-cola and celery an ingredient, unknown to the plaintiff, that would poison him or cause him to be sick; (&) in failing to use care to prevent poisonous ingredients or chemicals from being served in the glass of coca-cola and celery; and (c) in serving to him an unwholesome and impure drink, knowing that he was relying on the defendant to furnish him 'a pure and wholesome drink. It is alleged that the poison was a chemical — the name of which is unknown to the plaintiff — which when taken into the human system had the effect of depressing the heart action and reducing the circulation in the body and causing congestion and a condition resembling paralysis. It is further alleged that the defendant, in the operation of the soda-water stand, impliedly invited the patronage of the public and represented that it was selling and dispensing what were commonly known as soft drinks and soda-water drinks which were harmless, and refreshing, which drinks were compounded, manufactured, and sold by the defendant at the said soda-water stand. The drink that the plaintiff sought to purchase on that occasion, — to wit, celery and coca-cola mixed with carbonated water,—-was one of the drinks commonly compounded and manufactured by the defendant at the said soda-water stand which were sold and dispensed to customers as refreshing and harmless, and it is harmless when manufactured, compounded, and dispensed without any poisonous or foreign matter in it, and the plaintiff had the right to rely upon the defendant to serve him with such harmless drink on that occasion. The defendant was under a legal duty to see to it that no poisonous matter was mixed with the said beverage, and the plaintiff relied upon the defendant to perform this duty; and in manufacturing and selling the said drink with the said poisonous and deleterious substance in it the defendant violated the said legal duty and violated the laws of the State of Georgia, and it was a result of this violation of duty and of law that the plaintiff suffered damage as alleged.
   Broyles, C. J.

Conceding, but not deciding, that tlie petition as amended was subject to one or more of tlie special demurrers interposed, none of the special demurrers were passed upon, and the petition set out a cause of action, though it may have been defectively stated. The court, therefore, erred in dismissing the petition on general demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Branch & Howard, Bond Almand, for plaintiff,

cited: Park’s Code, §§ 2099, 2101; Tomlinson v. Armour, 74 N. J. L. 780 (65 Atl. 883); Bishop v. Weber, 139 Mass. 411 (1 N. E. 154); Doyle v. Fuerst, 129 La. 838 (56 So. 906, 40 L. R. A. (N. S.) 480); Ketterer v. Armour, 247 Fed. 921; Pantaze v. West, 7 Ala. App. 599 (61 So. 42); Blood Balm Co. v. Cooper, 83 Ga. 457; Watson v. Augusta Brewing Co., 124 Ga. 121; Martin v. Waycross Coca-Cola Co., 18 Ga. App. 226; Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (distinguished).

Rosser, Slaton, Phillips & Hopkins,

for defendant, cited and distinguished cases cited supra.


author: Stephens, J.

text:
    11132.
    Nixon v. Williams.
    Decided August 13, 1920.
    Action for damages; from city court of Carrollton — Judge Beall. November 3, 1919.
    Application for certiorari was denied by tbe Supreme Court.

      S. Holderness, Henry Strickland, for plaintiff in error.

      Smith & Smith, contra.
   Stephens, J.

1. Where an act is of a nature calculated to produce a certain injury, the causal connection, if any, between such act and the injury is not necessarily broken by an intervening act which bears a causal relation to the injury. Either the original act or the intervening act may be the legal cause of the injury.

2. Where the plaintiff was driving a horse attached to a buggy, along a public highway, and the horse became frightened by the operation of " an approaching automobile of the defendant and fell into a ditch and was injured, the act of a third person in the buggy with the defendant, in grabbing the lines and attempting to control the frightened horse, which pulled the horse into the ditch where he was injured, was not necessarily the legal cause of the injury.

3. Whether the operation of the defendant’s automobile in frightening the horse, or the grabbing of the lines by the third person, was the legal cause of the injury to the horse, and whether or not the defendant was negligent, were issues for a jury.

4. The motion for new trial contained only the general grounds. The verdict for the plaintiff, being supported by the evidence and having the approval of the trial judge, will not be disturbed.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10785.
    Keen v. Crosby.
    Decided August 13, 1920.
    Action for damages; from city court of Way cross — Judge Crawley. March 15, 1919.
    Ellis Crosby, a minor, by next friend, brought suit against D. L. Keen, to recover damages for the loss of his eye, caused by the explosion of 'a soda-water bottle while he was working in the manufacturing establishment of the defendant. At the trial there was evidence that the soda-water manufactured by the defendant was put up in bottles highly charged with carbonic-acid gas and packed in boxes; that the plaintiff, a child between ten and eleven years of age, was occupied in the work of inspecting bottles when the explosion of one of them caused the loss of his eye; that while engaged in this work, several minutes before the injury, he burst several of the bottles, and was warned by one of the employees to be careful; that he threw the bottles into the box and was not careful with them, and that the cause of the breaking of the bottle that injured him’ was that he did not place it in the box, but threw it in lightly. There was a conflict in the evidence as to whether he was a trespasser in the establishment or was permitted by the proprietor to work there. The jury found for the plaintiff. The defendant’s motion for a new trial was overruled, and he excepted.
   Stephens, J.

1. The child-labor law of this State provides that “No child under the age of fourteen years shall be employed by, or permitted to work in or about, any mill, factory, laundry, manufacturing establishment, or place of amusement; except that children over twelve years of age who have widowed mothers dependent upon them for support, or orphan children over twelve years of age dependent upon their own labor for support, may work in factories and manufactories; and other exceptions. Civil Code (1910), § 3149.

2. In a suit in behalf of a child against a proprietor of a manufacturing establishment to recover damages for personal injuries sustained by the child while working in or about such establishment contrary to the terms of the child-labor law, upon proof that the child was within the prescribed age and was employed or permitted by the proprietor to work in or about such establishment in violation of the statute, the proprietor of such establishment, in employing the child, is guilty of negligence per se; and where such negligence on the part of the proprietor is the proximate cause of the injury, the proprietor is liable therefor without further proof of negligence upon his p.art.

3. Negligence on the part of the child so employed in contravention of the statute, which proximately contributes to his injury, may be pleaded by the defendant to defeat a recovery or in diminution of damages. Elk Cotton Mills v. Grant, 140 Ga. 727 (4) (79 S. E. 836, 48 L. R. A. (N. S.) 656).

4. The pleadings and the evidence having raised the issue as to whether the ■ negligence of the child or the negligence of the defendant was the proximate cause of the injury, it was error upon the part of the trial judge to fail to submit this issue to the jury.

5. It was error to charge the jury that they should reconcile the differences in the sworn testimony and impute perjury to no one, and believe the witness who had the better opportunity of knowing the facts testified to, without adding the qualification that the witnesses must be pf equal credibility. Wilkes v. State, 11 Ga. App. 384 (75 S. E. 443).

6. No other error of law appears.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

F. V. Paradise, A. B. Spencer, H. M. Wilson, for plaintiff in error.

Parks & Reed, contra.


text:
    11135.
    Pittman et al. v. Dorsey, Governor.
    Forfeiture of recognizance; from Fannin superior court—'Judge Morris. October 22, 1919.

      Clay & Giles, for plaintiffs in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Stephens, J.

1. Motions for continuance being addressed to the sound discretion of the trial judge, and the evidence in this case adduced upon the hearing of a motion for continuance being conflicting, the trial judge did not err in refusing to continue the case.

2. Where a scire facias issues against a principal and a surety upon a forfeited recognizance, the mere tender of additional bail, unaccepted and unapproved, is no defense against a final judgment. See, in this connection, Penal Code (1910), § 960; Griffin v. Moore, 2 Ga. 331; Williams v. Jenkins, 53 Ga. 166.

3. The trial judge, without the intervention of a jury, properly entered judgment absolute against the principal and the surety.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


author: Jenkins, P. J.

text:
    11137, 11157.
    FARRAR LUMBER COMPANY v. HOGAN; and vice versa.

    Decided August 8, 1920.
    1. Malicious abuse of legal process is where a plaintiff in a civil proceeding wilfully misapplies the process of a court in order to attain an object which such a process is not intended by law to effect. In a suit for damages growing out of such a perversion of the court’s process, it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages. McElreath v. Gross, 23 Ga. App. 287 (2) (98 S. E. 190). The instant ease can not be taken as one based on the alleged malicious abuse of legal process, but the judge correctly construed and treated it as a suit for damages growing out of the alleged malicious use of legal process. In such a proceeding it must be made to appear not only that the previous proceeding has terminated against the former plaintiff, but that it proceeded maliciously and without probable cause. While it is true that a former judgment is conclusive as to every issue made by the pleadings, which must have been (or could have been and was) litigated (Acree v. Bandy, 20 Ga. App. 133, 135, 92 S. E. 765), the former litigation which is the basis of the present suit determined only where the preponderance of the evidence lay, and the failure of the plaintiff in that proceeding furnishes no proof or presumption that it was instituted maliciously or without probable cause. Porter v. Johnson, 96 Ga. 145, 148 (23 S. E. 123). Where the suit for damages is based on the alleged malicious use of legal process, the fact that the former litigation adjudicated contractual rights would not alter the rule, the test at last being whether the plaintiff in the previous case, in seeking to establish his alleged contractual rights, acted in good faith or whether he proceeded maliciously and without probable cause.
    2. Applying the foregoing principles of law, the verdict for the defendant was authorized by the evidence, and the several grounds of the amended motion for new trial are without merit.
    Action for damages; from Murray superior court—Judge Tarver. November 15, 1919.
    Farrar Lumber Company sued Hogan, alleging: that it bad purchased of him all the merchantable timber standing on a certain parcel of land; that subsequently he sought and obtained an interlocutory injunction restraining the plaintiff from removing the hardwood timber from the premises, on the false and pretended claim that by fraud the hardwood had been included in the contract of sale; that the injunction proceeding was finally determined against Hogan (the proof showing after three mistrials); that it was instituted maliciously and without probable cause; that after the determination of that proceeding it was impracticable for the plaintiff, on account of tree tops and other debris left on the premises, to work over it again for the purpose of cutting and removing the hardwood timber. In the original petition the plaintiff asked for damages in the sum of $2,659.58, which sum was arrived at as follows: 150,000 feet of hardwood timber, paid for at $3 per thousand, together with 'an alleged shortage in the amount of timber from the amount estimated by the defendant at the time of sale and paid for at $3 per thousand, — $909.50; profits which would have accrued from the sawing and selling of the hardwood timber, $1,500; attorney’s fees incurred in the previous and in the present litigation, $250; total as above, $2,659.58. By amendment, however, the amount sued for was reduced to $2,250, and damages were asked only for the $1500 item, the $250 item, and an additional item of $500 'as punitive damages. The defendant demurred, setting up, among other grounds, that in' the petition it was sought to join in one action a claim ex delicto with a claim ex contractu. The demurrer was overruled, and this is complained of in the defendant’s cross-bill of exceptions. The defendant filed a plea denying that the injunction proceeding was maintained maliciously and without probable cause. The jury on the trial found in favor of the defendant.
    The plaintiff’s bill of exceptions complains of the overruling of its motion for a new trial, in which it contended that the judge in trying the case admitted testimony and charged the jury on the theory that the plaintiff would have to show that the bringing of the injunction proceeding was malicious and without probable cause, whereas, according to the plaintiff’s contention, the alleged unrighteous injunction proceeding was complained of as an abuse, and not as a malicious use, of legal process, and that proof of malice and want of probable cause are not essential in that sort of action. It was also contended that all the alleged acts, though tortious, were breaches of a solemn contract, the execution of which is not denied, 'and which was upheld in the former suit, and that in such eases proof of malice and of want of probable cause is not essential; that it is only in cases in which no contractual relation exists that these are necessary allegations. It is also a contention of the plaintiff that the petition as amended was based on tortious acts of the defendant other than the bringing of the injunction proceeding, although the original petition was based solely and specifically upon the original proceeding. In the amendment to the petition this statement appears: “And plaintiffs further allege that since defendant forced said Keith to desist from cutting, plaintiffs tried to procure other sawyers to cut and saw said timber, to wit Amos Bishop and others, and defendants refused to allow said Bishop to enter upon the land or to cut the timber. ”

      F. K. McCutchen, C. D. McCutchen, for plaintiff.

      William E. Mann, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) We think the trial judge correctly treated the suit as one based entirely upon the alleged malicious use of legal process. We do not think that the amendment just above quoted attempts to add to or change the character of the suit. The quoted amendment in no way shows that Hogan refused to carry out the terms of the agreement after the litigation had settled the rights of the parties thereunder. To the contrary, the original petition plainly states that the first cutting over of the premises in removing the pine timber so littered the ground that for this reason it was impracticable to reenter in order to cut and remove the hardwood timber. The suit being plainly based upon an alleged malicious use of legal process, and being fairly tried 'as such, it is unnecessary to pass upon the point raised by the cross-bill of exceptions.

Judgment on main bill of exceptions affirmedj cross-bill dismissed.

Stephens and Smith, JJ., concur.


text:
    11147, 11148.
    BURTON v. WADLEY SOUTHERN RAILWAY COMPANY; and vice versa.

    1. While a servant of a railway company assumes the ordinary risks of his employment, he does not assume risks incident to the negligence of his fellow servants. The original petition as amplified set out a cause of action; and the judge did not err in allowing the amendment more precisely describing the transaction and adding another ground of- negligence, since the negligence so alleged, when considered in the light of the original averments,. can be taken to have contributed to the wrong originally complained of. Construing the petition as a whole, it cannot properly be held, as a matter of law, that the risk was assumed.
    2. Failure to show jurisdiction is an amendable defect in a petition, and unless sueli defect is challenged by demurrer, and opportunity given to amend, a dismissal entered for another and different reason, will not be upheld because of such omission.
    Decided August 13, 1920.
    Action for damages; from Jefferson superior court — Judge. Hardeman. November 10, 1919.'
    This was a suit against a railroad company by an employee, to recover damages for alleged personal injuries caused by the dropping of an air-pump, which the plaintiff and three-other employees had been directed to carry from one place- to- another in the machine shop of the defendant by means of two pipes used as hand-bars. The ground of negligence originally set forth in the.petition was carelessness and negligence of the defendant’s servants in the discharge of the duty thus imposed, which resulted in their dropping the pump, causing the plaintiff’s leg to be fractured. This original ground of negligence was subsequently amplified by showing that the two rear fellow servants, who were helping to carry the load, failed to keep proper step with the plaintiff and his partner, and, without any warning to him, carelessly dropped the pump. Over the objection of the defendant, the petition was amended by adding allegations descriptive of the pump, to the effect that it was cylindrical in shape and of great weight, to wit, about 500 pounds; that the two rear servants who were ordered by the defendant to 'assist in moving the pump were boys and not capable of sustaining their portion of the load; that the order was given hurriedly and the plaintiff had no time to consider the character and risk of the undertaking, and was without knowledge of, or opportunity of discovering, the weight of the load, which fact was known to the defendant. It was alleged that there was negligence in the giving of the order by the master mechanic, acting as vice-principal for the company, when he knew or ought to have known that the load was too heavy for those who had been ordered to handle it. The plaintiff also offered to amend his petition by assigning negligence on the ground that the defendant failed to furnish a proper conveyance for the removal of the pump, as it should have been moved either with a crane or 'a truck. This proposed amendment was disallowed. After the allowance of the one amendment and the rejection of the other, the petition was dismissed on a general demurrer to the effect that no cause of action was set forth; to which ruling and the disallowance of the proposed amendment the plaintiff excepted. A cross-bill of exceptions complains of the amendment allowed by the court.
    Although the petition alleges that the defendant was a corporation owning and operating a line of railroad in and through the county of Jefferson, and having offices and agents and a place of business in said county, it omits to aver that the alleged injury occurred in said county, and this omission is urged in the brief of counsel for defendant in error as an additional reason why the action of the trial judge in dismissing the petition on the general demurrer should be upheld.

      M. C. Barwick, Osborne, Lawrence & Abrahams, for plaintiff.

      Lawton & Cunningham, J. R. Phillips, W. W. Abbott Jr., for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. Civil Code (1910), § 3131. Under the statute law of this State (Civil Code, § 3129) an employee of a railway company does not, however, assume risks due to the negligence of his fellow servants. The petition, therefore, set out a valid cause of action based on the negligence of the plaintiff’s fellow servants in the alleged improper and careless execution of the master’s command, in that they failed to keep proper step in assisting to carry the pump, and negligently failed to give any sort of warning to the plaintiff before dropping the load. This original ground of negligence as amplified by amendment was sufficient to prevent the_ dismissal of the petition on the theory that no cause of action was set forth. This being true, the amendment setting up additional facts descriptive of the character of the load which plaintiff and his fellow servants had been directed by the master to carry, and the additional allegation assigning negligence in the giving by the master of such an order, was properly allowed. If the original petition had altogether failed to set forth a cause of action, the proposed amendment setting up additional facts together with an additional ground of negligence, even though pertaining to the same transaction, could not have been allowed, since there would have been nothing to amend by. Davis v. Muscogee Mfg. Co., 106 Ga. 126 (1) (32 S. E. 30). In the case just cited the original petition sought to base plaintiff’s right to recover against his employer, which was not a railway company, solely on the negligence of plaintiff’s fellow servants. This he could not do, and since no cause of action against that defendant was in any wise set forth, there was nothing to amend by, and it was for this reason that he could not add as an additional ground of recovery the negligence of the master himself in not providing proper machinery. Since the original petition totally failed to set forth a cause of action, and since there was nothing to amend by, the proffered amendment stood alone 'and unsupported, and would necessarily and for that reason have constituted a new and and the only cause of action. The Supreme Court in its decision of the Davis case goes on to say, however, that “If the petition in the present case had alleged that the plaintiff was burned and scalded by the negligent conduct of the defendant in the operation of its factory, and had set forth some specific act of negligence, then, under the ruling in the Harris case [Harris v. Central Railroad, 78 Ga. 525], an amendment containing additional acts of negligence might have been properly allowed. But the original petition contained no allegation of negligence which was chargeable in law against the defendant; and for this reason the case differs materially from the Harris case.” In other words, where no cause of action is originally set forth, an amendment cannot be employed to supply one; but where there is a cause of action shown by the original petition, any new facts can be supplied and additional grounds of negligence can be charged, provided that such new averments, when considered in the light of the original allegations as to how the plaintiff received his injuries, could be taken as having contributed thereto. King v. Donaldson Oil Mill, 141 Ga. 46 (80 S. E. 290).

The court did not err in refusing to allow the amendment by which the plaintiff sought to assign an additional ground of negligence to the effect that the defendant failed to provide proper machinery, such as a derrick or truck, by which the pump could have been removed, since the allowance of such an amendment would in no wise have strengthened plaintiff’s case. This’ is not an instance where an employee was injured by the use of defective machinery, but the question is whether the order actually given to the plaintiff and his fellow servants was negligent, and whether the plaintiff’s fellow servants proceeded to execute it in a negligent manner. Tbe entire gist of his complaint is necessarily covered by these allegations. If the order actually given was not an 'act of negligence, the charge made by the proposed amendment could not be accounted as such.

It is plain that it was the opinion of the able judge who heard the case that the petition as amended showed on its face that the'case was one where the plaintiff servant assumed the risk. As we view the pleading, both as originally filed and as amended, we are unable to hold as a matter of law that such is a necessary conclusion. Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, courts will decline to solve them on demurrer, except in plain and indisputable cases. Western Union Tel. Co. v. Spencer, 24 Ga. App. 471 (101 S. E. 198). The existence of those elementary laws or forces of Nature, such as gravitation, which must necessarily and continually come under the observation of every one alike, are assumed to be within the knowledge of all. Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158). If, under this- assumption, we felt authorized to Told, as a matter of law, that the risk incurred-by the servant in complying with the alleged negligent order of the master must necessarily, and under the circumstances and conditions disclosed, have been obvious and patent, — that is, that the directing master could not from the very nature of the case have had any superior knowledge or any better opportunity of ascertaining the manifest dangers obviously incident to the compliance with the order, — then under such circumstances the action of the trial judge in dismissing the petition on the theory that the risk was assumed would have been altogether proper. There are a number of reported cases in which the courts have held that the conditions of the rule just indicated were met. In the instant case, however, we think the facts and circumstances surrounding the transaction are such as to properly leave the determination of this question to the jury. The pump was not a solid article, but necessarily contained more or less cavity. The order was not only given suddenly, but the plaintiff’s opportunity to judge for himself the-difficulty and peril incident to the task was complicated by the fact that the command was not one given to him alone, but that it was directed to him in conjunction with three other fellow servants. The doctrine known as the “assumption of skill” of the master sometimes makes the knowledge implied against the master re-' lative to the nature, constituents, and general characteristics of the things used in his business superior to that implied against the servant. Beard v. Georgian Mfg. Co., 8 Ga. App. 618 (2) (70 S. E. 57). In thus stating why we think that it was a jury question as to whether or not the dangers incident to a compliance with the order were obvious, we do not, however, mean to intimate in-the slightest way that they would be unauthorized to so find.

The facts in the instant case seem to be somewhat akin to those in Durham v. Whittier Mills Co., 9 Ga. App. 26 (70 S.E. 195), where Judge Russell, speaking for this court, said': The court properly sustained the special demurrers, but erred in dismissing the petition. The allegations were sufficient to withstand the general demurrer. The case alleged by the petition is that of a servant injured because his fellow laborers, in response to a direct command of the master, then and there given to do the particular thing which they did, overturned a heavy machine and threw the entire weight on him, thus injuring him. The thing thus directed was negligent, and the plaintiff had no reasonable opportunity to protect himself from the result of the negligence, as the order was suddenly given and immediately obeyed. The petition sets out a cause of action, as the master, under the circumstances, would be liable, either on the theory that the negligent order was the sole juridic cause of the injury, or on the theory that the negligence of the master concurred with the negligence of the servants who executed it, if, indeed, their execution of the order in the exact manner in which they were directed to perform it can be considered as negligence at all. Where a servant is injured by the concurrent negligence of the master and of fellow servants, the master may be held liable.” It is our opinion that in the instant case the original petition set forth, a cause of action based on the alleged negligent conduct of plaintiff’s fellow servants, and that it was a question for the jury to say whether or not these allegations were true. It was also their duty to say whether the giving of the order by the master was an act of negligence, and, if so, whether it constituted the sole or concurrent cause of the injury. If they should find that the giving of the order was negligent and that it caused or contributed to the injury, the jury would then be called upon to determine whether the danger attendant upon the execution of such order was so obvious that no person of ordinary prudence could have been expected to perform it. If the peril in obeying such an order was thus obvious, it was the duty of plaintiff to disregard it. Moore v. Dublin Cotton Mills, 127 Ga. 609, 616 (56 S. E. 839, 10 L. R. A. (N. S.) 772); Southern Ry. Co. v. Rutledge, 4 Ga. App. 80 (60 S. E. 1011); McDuffie v. Ocean Steamship Co., 5 Ga. App. 125, 128 (4) (62 S. E. 1008); Whiters v. Mallory Steamship Co., 23 Ga. App. 47 (1) (97 S. E. 453); 18 R. C. L. (Master & Servant), §§ 185, 187; 4 Labatt’s M. & S. (2d ed.), § 1361; 26 Cyc. 1221 (8); 20 A. & E. Enc. L. 120 (6). Finally, if the jury should determine that the giving of the order was negligent, that it caused or contributed to the injury, and that the danger attendant upon the execution of the command was so obvious that no person of ordinary prudence could have been expected to comply with it, then the plaintiff would not, under any view presented by the pleadings be entitled to recover, since, despite the direct command of the master, there would be shown contributory negligence on the plaintiff’s part amounting to a lack of ordinary care. Civil Code (1910), § 2783.

3. The dismissal of the suit, in response to a general demurrer to the effect that no cause of action was set forth, cannot properly be sustained on the theory that the petition omitted to show that the accident occurred in the county where the suit was brought. The demurrer in this case does not raise the question of jurisdiction. Civil Code (1910), § 5631. While it is true that where section 2798 of the Civil Code, relative to venue of suits against railroad companies is applicable, such a suit brought elsewhere than is there provided is void, and the defendant does not and cannot waive the question of jurisdiction by pleading to the merits (Central of Ga. Ry. Co. v. Dowe, 6 Ga. App. 858, 65 S. E. 1091), and while ’as against a demurrer raising the question of jurisdiction, it must appear from the petition itself that the cause of action originated in the county of the suit (Ocilla Southern R. Co. v. McAllister, 20 Ga. App. 400, 93 S. E. 26), and while it is also true that if from the petition it should affirmatively appear that the court did not in fact have jurisdiction, the rule would be otherwise, and it would be the duty of the judge to dismiss the proceeding on or without motion, still the mere failure of a petition to show jurisdiction, is an amendable defect and does not render the proceeding void (Atlantic Coast Line R. Co. v. Williams, 5 Ga. App. 647 (1) 63 S. E. 671); Freeman v. Bank of Lafayette, 20 Ga. App. 334, 337, 338, 93 S. E. 34), so 'as to subject it to dismissal without objection being raised and without opportunity given plaintiff to amend. However, direction is given that the plaintiff be required to amend his petition setting up the necessary jurisdictional facts; and upon his failure so to do the case should he dismissed.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

Stephens and Smith, JJ., concur.