text:
    10523.
    Weathers v. The State.
    Decided November 5, 1919.
    Indictment for embezzlement; from Berrien superior court— Judge Thomas. March 28, 1919.
    Application for certiorari was denied by the Supreme Court.
    A. H. Weathers was president of the Weathers Banking Company, a corporation of this State, of which the Peoples Bank of Enigma, located in Berrien county, Georgia, and the Farmers & Merchants Bank of Ambrose, located in Coffee county, were branches.. The indictment was in two counts, one charging embezzlement of $1,987 in money, and the other charging embezzlement of a draft for that amount, in Berrien county, on December 12, 1916. There was a general verdict of guilty. From the evidence it appears that the draft referred to was drawn in the name of the Peoples Bank of Enigma, by its cashier, who sent it to the defendant at his request, and that the defendant collected the draft and used the proceeds for himself. In the motion for a new trial it was contended that the verdict was unauthorized, for the reason that the evidence showed that if the defendant embezzled the draft or money described, the offense was committed in Coffee county, and not in Berrien county; that there ivas no evidence that he formed an intent to commit the offense before the draft actually came into his possession in Coffee county; that the evidence showed that the draft was forwarded to him for the use of the Farmers & Merchants Bank of Ambrose, and that it immediately became the property of that bank, and if he committed the offense of embezzlement, he embezzled the property and funds of that bank, and not of the Peoples Bank. It was alleged that the court erred in charging the jury as follows: “If you believe from the evidence in this.case that the defendant, A. H. Weathers, was president of the bank as alleged in the indictment, and you further believe that as such president of such bank he was intrusted with the keeping, care, and safety of the money, property, and effects of such bank, and you further believe that while so entrusted (if you believe that he was thus entrusted) he did take, did unlawfully steal, secrete, or fraudulently take and carry away, by any means whatever, any of the funds of such bank, then it would be your duty to find him guilty as charged.” It was contended that this charge was error because: (a) It in effect authorized and instructed the jury to find the defendant guilty if they found that he took any of the funds of the bank, no matter how small the amount and no matter whether the funds taken were a part of the funds described in the indictment or not. (6) It authorized the jury to find the defendant guilty if he took and carried away any of the funds of the bank, regardless of whether the taking and carrying away were in Berrien county or not, or whether the offense was committed in Coffee county and not in Berrien. It was alleged also that the court erred in failing to give certain instructions as to venue. Another ground of the motion for a new trial was based on alleged newly discovered evidence.
   Luke, J.

1. Where the president of a bank, by reason of his official position with it, embezzles its funds by drawing them by checks issued in another county, the venue of the crime is not’ improperly laid in the county in which the bank is situated. See Mangham v. State, 11 Ga. App. 427 (2), 436 (75 S. E. 512); Rose v. State, 4 Ga. App. 588 (62 S. E. 117).

2. The evidence in this case authorized the verdict, which has the approval of the trial judge, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodioorth, J., eoneur.

J. P. Knight, William Story, W. 0. Langford, W. W. Bennett, for plaintiff in error.

C. E. Hay, solicitor-general, W. T>. Buie, contra.


source: Caselaw Access Project

author: Luice, J.

license: Public Domain

text:
    10611.
    Boatright v. Eason, guardian.
   Luice, J.

1. The city court of Blackshear has jurisdiction of the trial of proceedings to evict a tenant holding over. See Acts 1911, p. 211; Dorough v. Morris, 21 Ga. App. 477 (94 S. E. 641), and cases cited.

2. The proceeding authorized by section 5382 et seq. of the Civil Code (1910) is not for the trial of title to land. The sole purpose of this section is a determination of the right of possession between one claiming to be a landlord, on one side, and a person claimed by him to be his tenant, on the other side. See Jordan v. Jordan, 103 Ga. 483 (30 S. E. 265); Bullard v. Hudson, 125 Ga. 393 (54 S. E. 132); Grizzard v. Roberts, 110 Ga. 41 (35 S. E. 291); Willis v. Harrell, 118 Ga. 906 (45 S. E. 794).

3. Questions of law not raised in the trial court can not be raised here for the first time.

(a) The warrant in this case was proceeding in the name of a guardian for his ward, and issue was joined by the defendant as such; and the point can not for the first time be raised here, by the brief of the plaintiff in error, that the guardian did not introduce in evidence his letters of guardianship; no such question having been raised by plea in the trial court as would put the plaintiff in the court below to such proof. See Hazelhurst v. Morrison, 48 Ga. 397; Western & Atlantic Railroad Co. v. Harris, 128 Ga. 394 (57 S. E. 722).

Decided November 5, 1919.

Eviction; from city court of Blaeksliear—W. A. Milton, judge pro hac vice. March 30, 1919.

W. W. Benneli, for plaintiff in error.

Memory & Memory, contra.

4. The trial judge, who by agreement heard the case without the aid of a jury, did not err in rendering judgment in favor of the plaintiff.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    10669.
    Rivers v. The State.
    Decided November 5, 1919.
    Indictment for murder; from Clay superior court—Judge Worrill. May 10, 1919.
    Charlie Eivers killed Isaac Timmons, and, under an indictment for murder, was convicted of voluntary manslaughter. The charge of the court as to manslaughter was complained of in the motion for a new trial, on the ground that it was not authorized by the evidence, and “was therefore prejudicial to the defendant, in that it afforded a means of compromise to the jury.” From the evidence 'it appears that the mother and two sisters of Isaac Timmons had been riding in the automobile of Eivers, -with Eivers and Tolbert, and on their return at night, and when near the Timmons residence, the automobile stopped, because of a flat tire, and Eivers was trying to fix the tire, and Maude Timmons was standing near with a lamp, when Isaac Timmons was seen in the road approaching them. Mrs. Timmons walked towards her son. She testified that he said, “Now you have played the devil,” and told her that she had gone off without cooking his dinner or supper.” When she replied he said she had told “a damned lie.” As to what then occurred she testified: “I called the girls. . . I told Maude and Annie Eee to go on home with me, and one of them said, ‘Let’s ride;” they had the car about fixed then. . . Isaac said, ‘I will see whether you ride or not,’ and so he walked back down the side of the road and broke a switch or stick like, and came back to where they were, and had the switch in his left hand pulling the limbs off of it with his right hand as he walked back up there; and as he walked up near them Charlie.Eivers said, ‘Don’t hit those girls,’ and Isaac Timmons said, ‘What in the devil’ he had to do with it; then Charlie Eivers shot him. When he was shot he turned and went on to Eay Wilkerson’s. I went with him. Isaac . . had his hands on his stomach and hollered that he was shot, . . to send for the doctor, that he was dying. . . When he got there he just lay over on the porch and reached back in his right-hand hip-pocket and got his pistol out and laid it on the floor. . . Mr. Garrison got there and said, ‘Why didn’t you shoot the damned rascal?’ ‘I couldn’t get it out.’ . . He said that Charlie Eivers shot him for nothing.” “He broke the stick to make the girls go home. . . Maude never run, the other one run. . . Maude jumped in front of Charlie Eivers and held her arms out this way, and said, ‘Don’t shoot buddy.’ When Isaac went round she run around Charlie Eivers.” The witness, when asked, “Did you hear Isaac Timmons say, ‘God damn you, I am going to kill you?’ answered, “He may have said that. I called him about the time and said, ‘Behave yourself and come on here, Isaac,’ and immediately the pistol fired. . . I did not see Isaac Timmons’s pistol until .he got to the house. . . He could have had a pistol in his hands; he was standing behind Maude. . . When I spoke to him he made a motion and I thought h&.was going to throw the stick and hit some of them, but he may have drawn his pistol.” Maude Timmons testified that Isaac ran around Charlie Eivers to where she was, “and Charlie Eivers said, ‘Don’t hit those girls,’ and Isaac said, ‘What have you got to do with it? God damn you, I will kill you.’ At that time I looked back at Charlie Eivers and he had his pistol, and I jumped in front of him; when the pistol fired I was standing in front of Charlie Eivers. . . My back was to my brother . . I said, ‘Don’t shoot buddy.’ I did not hear but one shot fired there.” Tolbert testified that when Charlie Eivers said to Isaac, “Don’t hit those girls, please don’t,” Isaac stopped and said, “What in the hell have you got to do with it?” and ran his hand in his bosom and pulled out his pistol, and said, “God damn you, I will kill you,” and Charlie Rivers pulled a pistol from his pocket and shot Isaac Timmons. Isaac did not shoot, and he did not snap his pistol at Rivers, so far as the witness knew. The defendant, in his statement at the trial, said: “Isaac said to me . . ‘God damn you, I am going to kill you/ and he throwed his pistol on me, and I pulled mine out of my side pocket, and Maude jumped between us, and I shot him.”
   Broyles, C. J.

Under the evidence and the defendant’s statement the law of manslaughter was not involved, and the court erred in instructing the jury upon that law.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

P. 0. King, A. L. Miller, for plaintiff in error.

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


author: Luke, J.

text:
    10721.
    ABBOTT v. THE STATE.
    1. When, in answer to the question, “Are you conscientiously opposed to capital punishment?” a juror upon his voir dire, in a ease in which the offense charged may be punished with death, answers, “Not as a principle, but in a case of this character, where a woman is the defendant, I am opposed to capital punishment,” it is proper for the court to hold that he is incompetent.
    2. Under the evidence in this ease the court properly submitted to the jury the law of voluntary manslaughter.
    3. Where in a criminal dase a letter of such a character as to prejudice the minds of the jurors against the defendant has been excluded from the evidence, and by inadvertence is handed by the solicitor-general to the jury with the documentary evidence in the case, and remains with the jury until their verdict is returned, the presumption is that the jurors read it before arriving at their verdict, and that the defendant’s cause was prejudiced thereby. If all of the jurors testify that they did not read the letter before arriving at their verdict, the presumption is rebutted and a new trial is not required. Where, however, it is not so testified by all of the jurors, the presumption remains and a new trial becomes necessary. This is true even though all the members of the jury testify that the letter did not influence their verdict.
    Decided November 5, 1919.
    Indictment for murder—conviction of manslaughter; from Fulton superior court—Judge Humphries. May 17, 1919.

      B. W. Martin, B. B. Arnold for plaintiff in error.

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

In this case a letter which was unaddressed and was signed “B. B.,” and which was prejudicial to the defendant, had been offered in evidence by the State, and its admission, upon proper objection, had been refused by the court, upon the ground that it “could serve no other purpose than an attack on her character,” etc., but by accident and inadvertence it was handed to the jury by the solicitor-general with other documentary evidence introduced by the State. Some members of the jury read the letter, and one of them understood that it was written to the defendant; others did not; some did not read it; all say they were not influenced by it. No man can tell with certainty what influences his mind,—what evidence'or parts of evidence had least or most to do in leading him to a conclusion. While one may be a competent witness when sworn and examined in open court in a case in which he is serving as juror, no juror can, while the jury are deliberating upon a case properly submitted, introduce evidence in the jury room by reading or submitting to other members of the jury documentary evidence, or anything reflecting upon the character of the defendant, which has been denied admission by the court. When such a state of facts exists a new trial must be had. For this reason, in this case it was error to overrule the defendant’s motion for a new trial. To hold otherwise where, as in this case a prejudicial letter, which seriously reflected upon the good character of the defendant, found its way into the hands of the jury would be to permit the jury to base their finding upon evidence not adduced in their hearing in court, and upon a view not authorized by the court. Anything which has the effect of destroying the impartiality, decorum, and decency of jury trial lessens and in time will destroy the best safeguard of 'the liberty and property rights of the people of the State. No defendant charged with crime has had a fair and impartial trial, even though he be guilty, unless the trial was in keeping with orderly legal procedure. .See Woolfolk v. State, 81 Ga. 559 (8 S. E. 724); Smith v. State, 122 Ga. 154 (50 S. E. 62); Shedden v. Stiles, 121 Ga. 637 (49 S. E. 719); Killen v. Sistrunk, 7 Ga. 283; Walker v. Hunter, 17 Ga. 364; Griffin v. State, 5 Ga. App. 43 (62 S. E. 685).

The assignments of error not ruled upon above have been considered, and are without merit, or the alleged errors are not likely to recur on the next trial of the case.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10763.
    Fordham v. The State.
    Decided November 5, 1919.
    Indictment for murder—conviction of manslaughter; from Bleckley superior court—Judge Graham. June 21, 1919.

      J. M. Bleckley, M. II. Boyer, for plaintiff in error.

      W. A. Woolen, solicitor-general, contra.
   Luke, J.

1. It appearing from some of the evidence in this case that immediately preceding the killing the deceased and the defendant had a quarrel and a tussle and cursed each other, that each procured a pistol, and that the deceased, with his hand on a pistol in his pocket, was advancing on the defendant when the defendant shot and killed him, the jury were authorized to infer a mutual intent to fight, and the court did not err in giving in charge to the jury the law of voluntary manslaughter.

2. The court did not err as complained of, in excluding certain evidence. For no reason assigned was it error to overrule the motion for a new trial. Judgment affirmed.

Broyles, G. J., and Bloodicorth, J., concur.


text:
    10877.
    David v. The State.
    Decided November 5, 1919.
    Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July 26, 1919.
    The instructions complained of in the motion for a new trial were as follows: “The burden is on the defendant to establish to the satisfaction of the jury that the alibi is true. If he does, he should be acquitted on this testimony alone. It is not necessary that he establish it beyond a reasonable doubt. If the jurors are not "atisfied that an alibi has been established, you should not disregard any testimony introduced to support it, but you should consider this testimony alohg with the other testimony in the ease and the defendant’s statement, in arriving at a verdict in the case, and determine whether the defendant is guilty of any charge beyond a reasonable doubt, or whether he is not guilty, as contended by him.” It was contended that “said charge is confusing and misleading,” and it “places a burden on the defendant that the law does not impose upon him,—that is of establishing his alibi beyond a reasonable doubt.”
   Luke, J.

1. The charge of the court upon the defense of alibi is not subject to the criticism urged against it. It was understandable, not confusing, and correctly charged upon this particular defense. See Smith v. State, 3 Ga. App. 803 (61 S. E. 737).

2. The evidence for the State, if believed by the jury, demanded the verdict, which has the approval of the trial judge. This court can not set a verdict aside where the jury who sees and hears the witnesses give credit to one version rather than the other. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodicorth, J., eoneur.

George C. Palmer, for plaintiff in error.

C. F. McLaughlin, solicitor-general, contra.


text:
    10904.
    Goen v. The State.
    Decided November 5, 1919.
    Indictment for larceny from house; from Spalding superior court—Judge Searcy. August 4, 1919.

      O. L. Redman, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Broyles, C. J.

1. A special ground of a motion for a new trial must be complete within itself. The 2d special ground of the motion for a new trial in the instant ease is as follows: “2. Because the court failed to charge the law of circumstantial evidence.” In this ground it is not even alleged that the defendant’s conviction depended wholly upon circumstantial evidence; consequently the ground can not be considered.

2. The evidence failed to show definitely how recent was the possession of the stolen property. It does, however, appear from the record that the goods were stolen in September, 1918, and that the defendant was indicted in January, 1919. The defendant’s conviction, however, did not depend entirely upon his recent possession of the stolen goods, but the evidence showed other incriminatory facts, and therefore the defendant’s conviction was not contrary to the following ruling in Calloway v. State, 111 Ga. 832 (36 S. E. 63), cited by counsel for the plaintiff in error: “While recent possession of stolen goods unexplained will justify a conviction for larceny, the mere possession of goods several months subsequent to the time they were alleged to have been stolen and the failure to satisfactorily account for such possession will not alone authorize a conviction.” (Italics ours.)

3. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Smith, J.

text:
    10732, 10748.
    Ballard et al. v. Morgan County et al.; and vice versa.

    Decided November 5, 1919.
    Petition to vacate judgment validating bonds; from Morgan superior court—Judge Park. June 26, 1919.

      Samuel H. Sibley, Orrin Roberts, for plaintiffs.

      Q. L. Williford, Doyle Campbell, for defendants.
   Smith, J.

1. This case, -under the writ of error, was transmitted from the superior court to the Supreme Court, and the latter court by a formal order transferred it to this court. From this order it necessarily follows that in the judgment of the Supreme Court the constitutional question attempted to be raised in the case was not properly presented.

2. Where at a special term of the superior court of Morgan county, held on June 26, 1919, upon a petition duly filed, praying for the validation of certain county bonds, all the proceedings appeared on their face to have been regular, including the notice provided for by law, and the court rendered a judgment validating the bonds, and, 16 days thereafter and after the court had adjourned, certain persons filed a petition merely alleging that they were tax-payers and asking that the order validating the bonds be vacated or reopened, and that they be heard on the question as to the regularity or irregularity of the election held to authorize the bonds, the court did not err in dismissing the petition, on the ground that it came too late.

Judgment affirmed, on main hill of exceptions; cross-hill dismissed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10348.
    Southern Railway Company v. Collins.
    Decided November 6, 1919.
    Appeal; from Wayne superior court—Judge Higbsmitb. December 23, 1918.

      Bennet, Twitty & Reese, James W. Poppell, for plaintiff in error.
   Luke, J.

The evidence authorized the verdict, which has the approval of the trial judge, and for no error assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10366.
    Williams et al. v. Hart.
   Luke, J.

1. The defendant having admitted in his plea the execution of the note sued on, it was not error to admit the note in evidence without requiring the plaintiff and holder of the note to prove its execution.

Decided November 6, 1919.

Complaint; from city court of Nashville—Judge Lovett. December 31, 1918.

R. A. Hendricks, for plaintiffs in error.

J. A. Alexander, contra.

2. There is no merit in the assignments of error upon the rejection of evidence, since 'the brief of the evidence shows that subsequently to the rulings complained of such testimony was admitted.

3. The plaintiff had legal title to the note sued upon; the evidence authorized the vei'dict, which has the approval of the trial judge; and no error of law is complained of which requires a now trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10522.
    Newton v. The State.
    Decided November 6, 1910.
    Indictment- for murder—conviction of manslaughter; from Madison superior court—Judge W. L. Hodges. March 8, 1919.

      Gordon & Gordon, Berry T. Moseley, for plaintiff in error.

      A. 8. Skelton, solicitor-general, contra.
   Luke, J.

Under the facts of this ease, in the absence of a timely and appropriate written request, it was not error to fail to charge the law as to reasonable fears. See Alexander v. State, 118 Ga. 26 (44 S. E. 851). Neither the evidence nor the defendant’s statement at the trial raised a theory which would require such a charge. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned was it error to overrule the motion for a new trial. Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Bloodworth, J. Luke, J.

text:
    10552.
    BARNES v. THE STATE.
   Bloodworth, J.

1. The indictment in its formal parts followed section 954 of the Penal Code of 1910. It also named the accused, showed the date and the venue of the offense, and further alleged that the accused “did . . unlawfully and with malice aforethought kill and murder [a named person] by shooting him . . with a pistol.” Such an indictment sufficiently charges the offense of murder. Thomas v. State, 71 Ga. 47, 48 (5). It also embraces the minor offense of voluntary manslaughter. Reynolds v. State, 1 Ga. 222 (1); Watson v. State, 116 Ga. 607 (43 S. E. 32). Notwithstanding the language of the code-sections defining these offenses, it is not necessary to allege in the indictment that the accused was “of sound memory and discretion,” or that the person killed was “a human being,” or was “in the peace of the State.” Dumas v. State, 63 Ga. 600 (1); Sutherland v. State, 121 Ga. 591 (49 S. E. 781). The demurrer to the indictment was therefore properly overruled.

Decided November 6, 1919.

Conviction of manslaughter; from McDuffie superior court— Judge Henry C. Hammond. April 1, 1919.

Application for certiorari was denied by the Supreme Court.

Sam L. Olive, Hines, Hardwick & Jordan, B. J. Stephens, for plaintiff in error.

A. L. Franklin, solicitor-general, J. P. Burnside, John T. West, John M. Graham, contra.

2. Pending a motion for a new trial by one Who has been indicted for murder and been convicted of voluntary manslaughter, it is within the sound discretion of the presiding judge to grant or refuse admission to bail upon application therefor by the movant. Crumley v. Gibbs, 149 Ga. 119 (99 S. E. 297).

3. While the prisoner alone can put his general character in issue in any criminal case, yet he can do so as effectively by his statement to the court and jury as by sworn testimony introduced in his behalf. Jackson v. State, 76 Ga. 551; Doyle v. State, 77 Ga. 515 (2) ; Crawley v. State, 137 Ga. 777 (74 S. E. 537).

4. In any criminal case evidence may be offered by the State to rebut any material fact asserted by the prisoner in bis statement to the court and jury. Doyle v. State, supra; Goolsby v. State, 133 Ga. 427 (2) (66 S. E. 159). Good character is such a fact (Shropshire v. State, 81 Ga. 589, 8 S. E. 450), and an assertion of good character by the prisoner in his statement, or a narrative therein of facts, with an argument deduced therefrom to show his general good character, authorizes the introduction of evidence to the contrary.

5. In view of the principles announced in the two preceding paragraphs, that portion of the prisoner’s statement set out in the record put his general character in issue, and authorized the introduction of evidence to the contrary.

6. It was not error to refuse the request to charge on disparity of size. Alexander v. State, 118 Ga. 26, (3), 28 (44 S. E. 851). See Strickland v. State, 98 Ga. 84 (25 S. E. 908). (Luke, J., dissents.)

7. All the assignments of error have been considered; the evidence authorized the verdict, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Luke, J., dissents.

Luke, J.

I concur in each of the rulings of the majority of the court, except the ruling announced in paragraph 6 of the decision. The plaintiff in error was indicted by the grand jury of McDuffie county for the offense of murder, it being alleged in the indictment “that the said John M. Barnes, in the county aforesaid, on the 3rd day of February, nineteen hundred and nineteen, with force and arms, did tlien and there unlawfully and with malice aforethought kill and murder one J. O. J. Lewis by shooting Mm in the body with a pistol, contrary to the laws of said State, the good order, peace, and dignity thereof.” To that indictment the accused demurred generally, contending that no offense was set forth, and specially because it was not alleged that at the time of the homicide the accused was “of sound memory and discretion,” or that the decedent was “in the peace of the State.” The demurrer was overruled and exceptions pendente lite were taken. Upon trial the accused was convicted of voluntary manslaughter. He then moved for a new trial and applied for admission to bail. His application for admission to bail being denied, he excepted pendente lite; and his motion for a new trial being overruled, he brings the case here for review. Other facts, so far as they are material here, will be set out in connection with -tire points decided.

The first and second paragraphs of the decision need no elaboration.

After the prisoner had made .his statement the court permitted a number of witnesses to testify as to his general bad character, and particularly as to his character for violence. This evidence was admitted on the theory that the prisoner’s statement had Taised the issue, and was admitted over the objections, first, that the issue could not be so raised, and, second, that the issue had not been so raised, even if, under the law, it could be done. Numerous grounds of the amended motion for a new trial complained of the admitting of such evidence over the objections stated. That portion of the prisoner’s statement here in point was as follows: “My residence in this community covers a period of nearly forty years after I became of age, and during that entire period I have never had a fight with any one, nor was there even a semblance of a fight with any one, with the exception of a trivial affair with the late Ira Farmer, in which he struck me, and in which no weapons were drawn upon either side. After-wards I became postmaster at Thomson, and held the place for 3rears. During all that time I was not engaged in any quarrels, broils, or fights. Later I was United States marshal, under Judge Emory Speer, and for about nine years was marshal and revenue officer, in which positions there is so likely to be conflicts with lawbreakers and with others, and in which shootings and killings so often occur in the course of what the marshal and his deputies consider the performance of duty. I was so extremely careful of human life that it was never necessary for me to lay the hand of violence upon a human being. Never did it become necessary for me to even point a pistol at any one, much less to fire it. I stood so well as a man and as a citizen that the controlling powers in the county placed my name on the grand-jury list, and the grand jury itself, composed entirely of democrats, had repeatedly chosen me for foreman, although it was well known that I was a republican. Gentlemen, as I may have told you before, I have always lived among you. I challenge any respectable member of this community; who is not my embittered and deadly enemy, to say whether I have been guilty of dirty work of any kind, whether I have not always stood for what I considered clean, honest, and upright, and whether I have not always taken sides with the poor and oppressed. If you think that such a man would have no more sense and no more manhood than to commit deliberately a cold-blooded murder upon an unarmed man, you will, of course, find me guilty. But I again challenge the prosecution to prove me a man of this character.”

In view of the principles announced and the authorities cited in the foregoing decision, the trial court was clearly right in holding that the portions of the prisoner’s statement above set out put his character in issue and authorized the introduction of the evidence of which complaint is now made. A prisoner may, as a matter of right, make to the court and jury such statement “as he may deem proper in his defense” (Penal Code, § 1036); but he can not as a matter of right prevent the jury from hearing from the other side of the case upon the subject-matter which he thereby injects into the case.

The prisoner, in his statement, claimed that the homicide was justifiable, that he acted solely in self-defense, under the fears of a reasonable man that his eyesight was about to be destroyed and that his life was in danger. The court fully and fairly instructed the jury as to the principles of law applicable to such a killing. By way of showing a basis for the reasonable fears and the consequent justification Avhieh he claimed, the prisoner further stated that he was surprised and unexpectedly assaulted by the decedent, who was a powerful young man, in the prime of health and life, while he, the accused, was an old man whose eyesight had become dim from age, whose left arm had been useless since childhood, and who was at the time of the homicide and for a long time had been suffering from a double hernia of such a nature that any physical struggle on his part might likely result in his death from strangulation of the hernia. The statement of the prisoner as to the disparity in size and strength of the combatants was partly corroborated by the sworn testimony. The court nowhere instructed the jury that they might consider along with the other evidence in the case any inequality found by them to have existed in the relative size and strength of the combatants, in arriving at the real truth of the case. But the prisoner’s counsel duly requested in writing, and the court refused to give, an instruction as follows: "In determining whether the defendant was justified in shooting the deceased in self-defense or under the influence of reasonable fears, you can take into consideration any inequality of the relative sizes of the defendant and the deceased, and difference between the physique and strength of the defendant and the deceased, and any rupture from which the defendant was suffering, if such things appear from the evidence.” I cannot say that such a charge, if given, would or would not have affected the verdict returned. But under the facts of this case it was the prisoner’s right to have the jury instructed in accordance with his request, or in other appropriate language; and having-done all in his power to obtain that right, and having nevertheless failed to obtain it, a new trial, in my opinion, should be granted, so that tiro jury’s application of the law to the facts as they believed them to be may not be left as a matter of conjecture; and for this reason alone I dissent from the affirmance of the judgment of the trial court.


author: Luke, ,T.

text:
    10717.
    Cooper v. The State.
    Decided November 6, 1919.
   Luke, ,T.

Grounds of a motion for a new trial which are not approved by the trial court can not he considered by this court.

(a) There is no substantial merit in any of the special grounds of motion for a new trial which have the approval of the trial judge

2. The evidence authorized the verdict, which has the approval of the trial judge, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodwortíi, J., concur.

Indictment for burglary; from Bibb superior court—Judge Mathews. May 24, 1919.

Sidney W. Hatcher, for plaintiff in error.

John P. Boss, solicitor-general, contra.


text:
    10722.
    GOOLSBY v. THE STATE.
    Under the evidence the divorce decree was a nullity, and a conviction of bigamy was authorized.
    Decided November 6, 1919.
    Indictment for bigamy; from Heard superior court—Judge Terrell. May 31, 1919.
    The indictment charged that Goolsby unlawfully married Mrs. Dora Adams Creel when his lawful wife, Mattie Goolsby, was living. From the evidence it appears that in July, 1918, while living in the home of Mrs. Creel and her husband in Heard county, Georgia, and while his wife, Mattie Goolsby, was living in this State, the defendant filed in Bandolph county, Alabama, in the circuit court, a petition for divorce from Mattie Goolsby, alleging that he was a bona fide resident of that State and had been such “for a period of more than twelve years next before filing this petition,” and that Mattie Goolsby was a non-resident of the State. In his depositions in that case he stated that he was married to Mattie Goolsby in 1895, that they lived together as husband and wife until July, 1906, when she left him, that he did not know where she resided, but she lived somewhere in Georgia when he last heard from her, and that he was a resident of Bandolph county, Alabama, and had been “for the last five years and longer” a resident of Alabama. On August 23, 1918, he obtained from the ordinary of Heard county, Georgia, a license to marry Mrs. Creel, a divorce decree was granted to him by the Alabama court on October 2, 1918, and he was married to Mrs. Creel in Heard county later in the same month. On his trial it was testified that he and Mattie Goolsby were living together in Georgia as husband and wife in 1916, and in previous years, and that he was making crops in Heard county and living there in 1917 and 1918. His statement at the trial was aá follows: “I went over to Alabama and stayed about a year, and went to Col. Hooten and asked him about a divorce, and he said, ‘Yes, I can get you one/ and I gave him $31, and he got me this paper and gave it to me, and said, ‘This is all right, you can go and marry now/ I thought it was all right, [or ?] I would not have done it. I have clothes over there now in Alabama,—claim that as my home. I went over there in 1916, worked over there in the foundry, . . worked there in 1918 and up in the spring of 1917 before I left there, came back, and have been going backwards and forwards pretty often. I have got clothes over there now, and call it my home, in Anniston.” The record of the divorce proceeding was introduced in evidence by the State after the defendant made his statement.
    In the motion for a new trial it was contended that the court erred in charging the jury as follows: “If you find from the evidence, beyond a reasonable doubt, that such decree or judgment divorcing the defendant in this case from his wife, if the evidence shows that he had a wife,—that such judgment or decree was obtained by the defendant in this case in the circuit court of the fifth judicial circuit of the State of Alabama, in the county of Eandolph, through fraud and fraudulent misrepresentations, and that the defendant, at the‘time he secured such decree upon such fraud and fraudulent representations, if he did do it, and he knowing at the time that such was fraud and fraudulent misrepresentations, then I charge you that the judgment and decree rendered by the circuit court of the fifth judicial circuit of the State of Alabama would be void.” It was contended that this was error for the reason that the ¿[ecree could not be treated as void unless first set aside in a direct proceeding instituted for that purpose; that the State, having introduced the decree in evidence, was estopped from attacking its validity; and that there was no proof of fraud in procuring the decree. It was contended also that the court erred in refusing to charge the jury that the divorce decree “is presumed to be a valid, divorce until set aside; it can not be set aside in this trial; before such a judgment can be set aside a suit must be filed for the purpose of setting it aside,' and both the defendant and his first wife must have notice <}f such suit.”

      M. U. Mooty, for plaintiff in error.

      C. E. Roop, solicitor-general, contra.
   Luke, J.

The defendant in this case was convicted of bigamy. The evidence was conclusive that he had a living wife at the time of marrying another as alleged in the indictment. He claimed to have been divorced from his first wife by a decree of the circuit court of the 5th judicial circuit in Randolph county, State of” Alabama. The evidence authorized the jury to find that he was a resident of the State of Georgia at the time he instituted his divorce proceeding in Alabama against his wife, who also was a resident of Georgia at the time of the institution of that proceeding; and that there was no service of the divorce proceeding other than constructive service by publication in Alabama. The conviction of the defendant was proper. The divorce decree relied upon by him was a nullity. See Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855); Solomon v. Solomon, 140 Ga 379 (78 S. E. 1079). The court did not err in refusing a new trial.

Judgment affirmed.

Broyles, G. J., and Woodworth, J., concur.


author: Broyles, C. J. Luke, J.

text:
    10742.
    MAY v. THE STATE.
    1. The 1st special ground of the motion for a new trial is virtually abandoned in the brief of counsel for the plaintiff in error. The 10th special ground is not referred to in the brief, and will be treated as abondoned.
    2. In the light of the note of the trial Judge there is no merit in the ground relating to alleged applause and demonstration against the defendant by the audience during the progress of the trial. Moreover, no motion for a mistrial was made, nor any ruling invoked upon which error is assigned. In this connection, sec Harrison v. State, 20 Ga. App. 157 (6), 160 (92 S. E. 970), and cases cited.
    3. “Where, in answer to questions propounded by the solicitor-general, certain evidence was elicited from a witness, but upon objection from counsel for the accused such evidence was excluded and the presiding judge instructed the jury that it was withdrawn from their consideration and should have no weight with them, and should be given no consideration by them, there was no error in declining to grant a mistrial upon motion because such evidence had been hoard by the jury.” Withrow v. State, 136 Ga. 337 (3), 338 (71 8. E. 139); Esa v. State, 19 Ga. App. 14 (3) (90 8. E. 732); Biggers v. Stale, 19 Ga. App. 604 (91 S. E. 919). Under this ruling the court did not err in denying the motion to declare a mistrial.
    4. The ground relating to the exclusion of an alleged statement made by the defendant to another person in regard to the homicide, near the body of the person he had killed, is too incomplete to be considered. It is alleged that the statement was admissible as a part of the res gestae, and yet the ground does not show how near to the time of the homicide the statement was made. “It should appear from the ground itself that they [the statements] were so nearly connected with the homicide in time as to “be free from all suspicion of device or afterthought.” Beeves v. State, 22 Ga. App. 628 (5), 630 (97 S. E. 115). The allegation that the statement was made, “as movant insists the .. evidence shows, immediately after the homicide, to the first person to enter the building after the homicide,” does not show this necessary fact, but is a mere argumentative conclusion of the movant, without sufficient facts upon which to baso it-, and a reference to the brief of the evidence would bo necessary to decide this question.
    5. The court did not err in propounding to a witness the question complained of in the 6th special ground of the motion for a new trial.
    0. In the light of the notes of the trial judge the 5th, 9th, 12th, 13th, and 14th special grounds are without merit. The 7th, 8th, and 11th special grounds are without substantial merit.
    7. In the light of the note of the trial judge, and the counter-showing made by the State, there is no merit in the grounds which complain that some of the jurors, during a recess of the court and while quartered in an hotel, talked over the long-distance telephone.
    8. It was improper for the court, in the presence of the jury and during tlie progress of the trial, on a Saturday afternoon, to enquire if it would bo agreeable to counsel (addressing counsel for both sides) to allow the jury to attend church services on the following Sunday. However, as shown by the note of the trial judge “no motion or objection of any kind was made to such enquiry or suggestion of the court, or any ruling invoked concerning the same until the above stated ground of the motion. ” Under these facts this inadvertent impropriety of the court does not require a new trial.
    9. None of the excerpts from the charge of the court, set out in the 18th, 19th, 20th, 21st, 22d, 23dj and 24th special grounds of the motion for a new trial, when considered in connection with the remainder of the charge and the facts of the case, shows cause for a new trial.
    10. It was not error to refuse the request to give in charge to the jury a series of propositions presented en bloc, since some of the propositions were unsound and inapplicable to the facts of the case. Although not all of the propositions were on the same sheet of paper, all of the sheets containing the propositions were attached together and so presented to the judge, and the only request to charge was on the first sheet of paper, and the request was that the court “charge the jury each and all of the following written requests, to wit:” and then followed eight propositions of law, numbered 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th. Western Union Telegraph Go. v. Owens, 23 Oa. App. 169 (98 S. E. 116), and authorities cited. As a matter of fact, however, the legal propositions that were sound and applicable to the case were sufficiently covered by the charge given.
    11. The court did not err in instructing the jury on the law of voluntary manslaughter. ,
    Decided November 6, 1919.
    Indictment for murder—conviction of manslaughter; from Decatur superior court—Judge Harrell. June 14, 1919.

      Application for certiorari was denied by the Supreme Court.

      E. E. Cox, B. L. Cox, A. E. Thornton, Hartsfield & Conger, J. B. Pottle, for plaintiff in error.

      B. C. Bell, solicitor-general, F. A. Hooper, M. E. O’Neal, contra.
   Broyles, C. J.

The last headnote alone needs elaboration. While there was no eye-witness to the homicide, the defendant in his statement to the jury admitted that he killed the deceased, under the following circumstances, as narrated by him: The deceased came into the defendant’s office in the bank of which the defendant was cashier, and demanded that he sign a certain paper, which was a release by the bank of certain assets of the deceased held as collateral security. The defendant refused to do this; and upon his telling the deceased that he was going to leave the building, the deceased said, “No, you are not going to leave this building until you sign this paper.” The defendant then closed the doors of the bank’s vault, and as he backed out of the vault and was closing the “gate” of the vault he heard the deceased behind him. What then occurred was stated as follows: “He came up and he says,—the words I heard, he says, ‘God damn you, you have ruined me and I will fix you, . . and I turned around, and he was coming to me just in this position (illustrating); I was standing there at that end of the door, that little gate, fixing to pull it in, and I looked back and the picture I' saw of Mr. Richardson was that piece of iron,—of course I will call it a crank,—I did’nt know at the time what it was, but he had this piece of iron and he made this threat, and he was just in this position, as best I remember, and he had made this threat, and he was right on me then practically close enough to hit. I have had a lot of tussles with Mr. Richardson. He was an athlete, he was an awfully strong fellow, anybody will tell you that, and when he came on to me like that, of course, I could’nt see anything but death. I jumped back as far as I could into that vault door; it was the only way of escape. This door here I could’nt have gotten out there, and I went back into the vault door as far as I could and I remember falling back in there, and I remember shooting one time. Now, when I shot Mr. Richardson he was just in this motion, and the picture I drew of Mr. Richardson after I shot one time went around this way over that desk, that slanting desk, and as I say, just as I shot the first time, and he in this position (indicating), the last picture I saw of him he went right over this Avay, and of course I don’t remember anything about the shots.” The defendant further said in his statement that he told the first person that came into the building after the homicide, “Mr. Deese, I have had to kill Mr. Kichardson, I says ‘he was trying to kill me, and I had to kill him in defense of my own life.’ ” The evidence showed that an automobile crank was found, shortly after the homicide, on the floor near the body of the deceased.

It is well settled by numerous rulings of the Supreme Court and of this court that the law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement to the jury, there is anything deducidle which would tend, to show that he was guilty of manslaughter, voluntary or involuntary, or which would be sufficient to raise a doubt as to whether the homicide was murder or manslaughter. Reeves v. State, 22 Ga. App. 629 (97 S. E. 115). It is likewise well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. Brown v. State, 10 Ga. App. 50, 54, 55 (72 S. E. 537).

Under the above rulings the jury were authorized to disbelieve the following part of the defendant’s statement (which was really* an argument and a conclusion on his part): “And when he came on to me like that, of course, I could’nt see anything but death.” The jury were also authorized either to reject that part of the statement which showed that the defendant stated to a third person, some time after the killing, “I have had to kill Mr. Eichardson, I says, ‘he Avas trying to kill me, and I had to kill him in defense of my OAvn life;’ ” or, if they believed he had made this self-serving declaration, to disbelieve the truth of it. With these portions of the defendant’s statement eliminated, the remainder of the statement authorized the jury to infer that, or at least made it a doubtful question whether, the defendant killed the deceased without any malice, either express or implied, and not under the fears of a reasonable man that a felonious assault was about to be committed upon him. The evidence did not show that the automobile crank which the defendant alleged the deceased used in the assault was a weapon likely to produce death, but merely that it was a weapon with which death could be produced. However, conceding (but not deciding), as argued by able counsel for the plaintiff: in error, that this court should take judicial cognizance of the fact that an automobile crank is such a weapon as would likely produce death, the defendant’s statement (the evidence is silent on this question), as disclosed by the record, does not demand a finding that the deceased, at the time of the assault, was using this weapon in a way calculated to talce human life, or in such a manner as would arouse the fears of a reasonable courageous man that a felonious assault was about to be committed on him. The record does not disclose how or in what manner the deceased attempted to use the weapon. The deceased made no threat to kill the defendant, or to commit a felony upon his person, the only threat being that he was going to “fix” him. The record is 'silent as to what the defendant meant by the word “fix.” Was he going to “fix” the defendant by killing him, or committing a felony upon his person, or by merely giving him such a beating as would not have amounted to a felonious assault. While it is probably true that the jury were authorized to infer that the deceased, by his threat to “fix” the defendant, meant that he intended to kill him, or to commit a felonious assault upon him, such an inference was not demanded. The portions of the defendant’s statement which the jury, as shown by their verdict) evidently believed, authorized them to find, that, immediately preceding the homicide, the deceased made an actual assault upon the defendant, accompanied by threats and menaces, but that the weapon employed by the deceased in making the assault (conceding that it was a weapon likely to produce death) was not being used by the deceased at the time of the assault in a way calculated to take human life; that the defendant, in killing the deceased, was not actuated by malice, either express or implied, but that the homicide was the result of a sudden and violent heat of passion aroused in the defendant by the unprovoked assault made upon him by the deceased. From what has been said it follows that the court was authorized to instruct the jury upon the law of voluntary manslaughter.

The verdict was authorized by the evidence and has been approved by the trial judge; no reversible error of law appears to have been committed on the trial; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth,, J., concurs. Luke, J., dissents.

Luke, J.

I concur in every conclusion reached by a majority of the court, except the ruling announced in the last paragraph of the decision. I do not think that under the evidence the court should have instructed the jury upon the law of voluntary manslaughter.


author: Broyles,.0. J.

text:
    10830.
    Blackmon v. The State.
    Decided November 6, 1919.
    Indictment for larceny from house; from Fulton superior court —Judge Humphries. July 11, 1919.

      T. C. Battle, for plaintiff in error.

      John A. Boykin, solicitor-general, B. A. Stephens, contra.
   Broyles,.0. J.

1. “In indictments for compound larceny, the allegations in reference to the aggravating fact serve to individualize the transaction, and a more general description of the property is permissible in such eases than would be permitted in indictments for simple larceny.” Melvin v. State, 120 Ga. 491 (48 S. E. 198); Cannon v. State, 125 Ga. 785 (54 S. E. 692).

(a) Larceny from the house is a larceny of a compound nature. Cannon v. State, supra.

2. In the instant case the indictment charged the defendant “with the offense of larceny from the house, for that said accused, in the county of Fulton and State of Georgia, on the 28th day of March, 1919, with force and arms, did from the office and place of business of Dr. R. C. Mosley, said office and place of business being a house in said State and county, wrongfully, fraudulently, and privately take, steal, and carry away, with intent to steal the same, one typewriter of the value of seventy dollars and the property of the said Dr. R. C. Mosley.” The description of the property alleged to have been stolen, when taken in connection with the other allegations of the indictment just quoted, was sufficiently full to withstand a special demurrer. 2 Bishop’s Hew Criminal Procedure, § 700; Sanders v. State, 86 Ga. 717 (12 S. E. 1058); Powell v. State, 88 Ga. 32 (13 S. E. 829); Cannon v. State, supra.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    10914.
    WINDOM v. THE STATE.
    Where the defendant in a criminal ease moves for a continuance because of absence of witnesses, and by uneontradicted testimony shows that they are absent because he was misled by the prosecuting solicitor, who told him that he need not have his witnesses or his lawyer present at the trial, as “it would be all arranged,” the case is an exception to the rule, laid down in section 987 of the Penal Code, that it must be shown that the witnesses are not absent by the permission, directly or indirectly, of the movant.
    Decided November 6, 1919.
    Accusation of misdemeanor; from city court of Carrollton—■ Judge Eevill presiding. July 7, 1919.

      I. N. Cheney, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Broyles, C. J.

Upon the call of the case the defendant moved for a continuance thereof upon the ground of the absence of three material witnesses. Upon the hearing of the motion the defendant swore that the absent witnesses lived in the county, had been subpoenaed by him, that their testimony was material to Ms defense, that he expected to have the witnesses present at the next term of court, and that the application was not made for the purpose of delay, but to enable him to have the testimony of the absent witnesses. The defendant further set forth what he expected to prove by the witnesses, and it appears that this testimony would have been material to Ms defense. The defendant further testified that the witnesses were absent because the prosecuting solicitor had told Mm that he need not have them at the trial and not to have his lawyer present, as “it would be all arranged.” None of this evidence was denied by the solicitor. Under these peculiar circumstances we think that this ease presents an exception to the rule, as laid down in section 987 of the Penal Code, that it must be shown that the witnesses are not absent by the permission, directly or indirectly, of the movant. In our judgment the court erred in overruling the motion for a continuance, and the subsequent proceedings in the case were nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, J.

text:
    10329.
    Brooks v. Pitts et al.

   Jenkins, J.

1. While it is true that a discharge in bankruptcy does not release a bankrupt from liability for obtaining property by false pretenses or false representations (Orr Shoe Co. v. Upshaw, 13 Ga. App. 501 (2), 79 S. E. 362; Brandt v. Klement, 20 Ga. App. 664, 93 S. E. 255), and that false representations may consist in the purchasing of goods with no present purpose of paying for them, and in contemplation of a fraudulent insolvency, and that it is a question for the jury to determine from the evidence whether the circumstances adduced, even though they be slight, are sufficient to carry conviction of the existence of fraud perpetrated by false pretenses (Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299 (2), 68 S. E. 1077), still there was in this ease no evidence whatever to show that the goods, for the purchase-price of which the present suit was brought, were obtained by false pretenses or representations, consisting in the purchase thereof with no present purpose of paying therefor, and in contemplation of a fraudulent insolvency, or that the insolvency of the defendant was in fact fraudulent. The mere fact that the defendant procured credit and promised to pay for an ordinary current purchase of goods, and subsequently failed to meet his obligation prior to the time that he voluntarily went into bankruptcy (some 34 days thereafter), is not of itself sufficient to bring the case within the ruling above announced, for ordinarily promises to perform some act in the future will not amount to fraud in legal acceptation, although- subsequently broken without excuse, and especially is this true of a promise to pay money. Otherwise any breach of contract would amount to fraud. Atlanta Skirt Mfg. Co. v. Jacobs, supra. The statement of the plaintiff, that he heard, a week or ten days after the sale, that- the defendant was contemplating taking bankruptcy, was hearsay, and, even though admitted without objection, is without probative value. Michigan Mutual Life Ins. Co. v. Parker, 10 Ga. App. 697 (73 S. E. 1096); Rabun v. Commercial National Bank, 21 Ga. App. 43 (93 S. E. 524).

2. Under the provisions of the present national bankruptcy act of 1898 (e. 541, 30 Stat. 544, U. S. Comp. St. 9585-9586) a discharge in bankruptcy releases a bankrupt from all his provable debts except those specifically mentioned by section 17 of the act, which includes those that have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or knowledge of the proceedings in bankruptcy. Peterson v. Calhoun, 137 Ga. 799 (74 S. E. 519); Bank of Wrightsville v. Four Seasons, 21 Ga. App. 453 (94 S. E. 649), and cases cited. Thus, the defendant in this case having introduced in evidence a certified copy of his discharge in bankruptcy, and it being admitted by the plaintiff that he had actual knowledge of such bankruptcy proceedings in ample time to have proved his debt against the bankrupt, the evidence demanded a verdict for the defendant, and the superior court erred in dismissing the certiorari upon the ground that there was a disputed issue of fact involved, and that the defendant’s remedy was an appeal to a jury in the justice’s court. See Toole v. Edmondson, 104 Ga. 776 (31 S. E. 25); Schultes v. Campos, 5 Ga. App, 277 (63 S. E. 23).

Decided November 6, 1919.

Certiorari; from Polk superior court—Judge Bartlett. December 20, 1918.

John L. Tison, for plaintiff in error.

Ault As Wright, contra.

Judgment reversed.

Stephens and Smith, JJ., concur.


author: Stephens, J.

text:
    10334.
    Copeland v. Gilbert.
   Stephens, J.

1. A direct bill of exceptions which excepts to the verdict and to a ruling of the court necessarily controlling the verdict, viz. the direction of a verdict, which is brought up under section 6144 of the Civil Code, is not subject to dismissal'upon the ground that the plaintiff in error failed to except to the final judgment.

2. A motion for a new trial will not operate to deprive the movant of his right to a direct bill of exceptions complaining of a ruling of the trial judge that controlled the verdict, when such motion for a new trial had been dismissed before the signing and filing of the bill of exceptions; and such direct bill of exceptions, when tendered in due time, will not be dismissed on the ground that the plaintiff in error bad elected to move for a new trial instead of coming to this court on a direct bill of exceptions. See, in this connection, Wright v. Hollywood Cemetery Corp., 112 Ga. 884, 893, 894 (38 S. E. 94, 52 L. R. A. 621).

3. The questions of law which were decided in this case upon general demurrer when brought .before this court as reported in Gilbert v. Copeland, 22 Ga. App. 752 (97 S. E. 251), have no application to the ease as here presented under the evidence. The evidence upon the trial showed that the relation of landlord and tenant existed between the defendant Copeland, as landlord, and a third party by the name of Bell, as his tenant; that the rent was to be paid in kind, the landlord receiving part of the crop; that the crop sued for had been delivered to the landlord by the tenant for the payment of rent for the premises upon which it had grown. As a landlord holds a lien for rent upon all the crops raised by his tenant upon the rented premises, a trover suit, therefore, cannot be maintained by a third party, claiming title under contract with the tenant, to recover the crops raised by the tenant on the rented premises and delivered by the latter to the landlord for the payment of rent, until the lien in favor of the landlord has been discharged. The fact that the tenant was under contract with the third party (plaintiff in trover) to deliver to such third party certain parts of the crop in question which was raised from seed furnished by plaintiff and the title to which crop, under the contract, was to remain in the plaintiff, would not operate to destroy the landlord’s lien for rent on all of the crops raised on his land, including those described in the contract with the plaintiff in trover. The court therefore erred in directing a verdict for the plaintiff.

Decided November 6, 1919.

Trover; from city court of Thomasville—Judge W. H. Hammond. January 6, 1919.

Titus, Delcle & Ilophins, for plaintiff in error.

O. E. Hay, Eldon L. Joiner, contra.

Judgment reversed.

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


text:
    10361.
    Miller v. Oglethorpe University.
    Decided November 6, 1919.
    Certiorari; from Fulton superior court—Judge Ellis. January 22, 1919.

      A. M. Brand, for plaintiff in error.

      Horace Bussell, contra.
   Jenkins, J.

1. While as a general rule a promise tq donate money to a charitable purpose is gratuitous and unenforceable unless some consideration therefore exists, a consideration for such a promise is supplied where the promisee, during the life of the promisor and before a withdrawal of the promise and in reliance thereon, expends money and incurs enforceable liabilities in furtherance of the contemplated enterprise, or if such a promise be a mutual subscription for a common object, the promise of the others is a good consideration for the promise of each. Civil Code (1910), § 4246; Wilson v. First Presbyterian Church, 56 Ga. 554; Owenby v. Georgia Baptist Assembly, 137 Ga. 698 (74 S. E. 56, Ann. Cas. 1913B, 238); Y. M. C. A. v. Estill, 140 Ga. 291 (3), 294 (78 S. E. 1075, 48 L. R. A. (N. S.) 783, Ann. Cas. 1914D, 136). That the promisor should receive a personal benefit or consideration is not a necessary prerequisite to the validity of such a contract.

2. The defendant having admitted a prima facie case in favor of the plaintiff and set up as a defense a want of consideration, he thereby assumed the burden of proof, and the duty rested upon him of establishing his affirmative defense by a preponderance of evidence; for, as was said in Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 879 (45 S. E. 674) : “When a contract is valid in the absence or existence of certain facts, but otherwise void, it is, in the absence of evidence, presumed to be valid; and the burden of proving the absence or existence of such facts lies upon him who asserts its invalidity. Greenhood on Pub. Pol. 118, Rule CXXX.'” See also Hyer v. Holmes, 12 Ga. App. 837 (79 S. E. 58). The entire purport of the defendant’s evidence going merely to show that he received no personal benefit or consideration from his undertaking, the municipal court did not err in rendering judgment in favor of the plaintiff, and the superior court properly overruled the petition for certiorari.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10392.
    Harrell v. Shealey.
    Decided November 6, 1919.
   Smith, J.

1. Article 2, section 200, of the act of Congress, approved March 8, 1918, c. 20, 40 Stat. 441 (U. S. Comp. St. 1918, § 3078% bb), and known as the “soldiers’ and sailors’ relief act,” provides, “that in any action or proceeding commenced in any court if there shall be a default of an appearance by the defendant, the plaintiff before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. . . If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of Ms military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same, and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof.” Under the provisions of this act a default judgment cannot be opened for failure to file such affidavit, unless it appears from the record that the person against whom the judgment was rendered was as a matter of fact in tlie military service. The court therefore erred in opening the default judgment against the defendant in this case, notwithstanding the plaintiff did not make and file the affidavit provided for in this act, since neither his motion to vacate nor the record as a whole showed that he was engaged in the military service of his government at the time judgment was rendered.

2. “Under the act creating the city court of Thomasville [Acts 1905, p. 383], as amended by the act approved August 22, 1907 (Acts of 1907, p. 238), it is the duty of the trial judge to call the appearance docket, and, if no defense is filed on or before the call of the docket, the judge must, upon sufficient proof submitted by the plaintiff, render a judgment in his favor. There is nothing, however, in the provisions of the act creating the city court of Thomasville, or in its amendments,' which abrogates the general rule that during the term the court has plenary power over all of its judgments and orders, and may modify or vacate them for good cause shown.” But “Where, under the provisions of the act creating the city court of Thomasville, no defense is filed within the time required by the act, and judgment is rendered in favor of the plaintiff, such a jiudgment will not be vacated, even during the same term, at the instance of a defendant who shows no reason good in law for his failure to appear and file his defense within the time required by the act. The discretion vested by law in the trial judge is a legal discretion and will be exercised only in cases where the defendant shows a legal reason for its exercise.” Florida Central R. Co. v. Luke, 11 Ga. App. 290 (75 S. E. 270). No such reason having been shown in this ease, the judge erred in vacating the judgment.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

Motion to set aside judgment; from city court of Thomasville—■ Judge W. H. Hammond. February 10, 1919.

W. V. Ouster, Hartsfield &■ Conger, for plaintiff.

J. M. Austin, for defendant.


text:
    10393.
    Columbus Power Company v. Puckett.
   Jenkins, J.

1. An electric company which, after the erection of a telegraph company’s line, erects and maintains over and across the line of telegraph wires, or in close proximity thereto, a high-tension wire which carries a dangerous current of electricity is bound to exercise ordinary diligence in the erection and maintenance of its poles and wires, so as to permit an employee of the telegraph company, who ascends a pole of his company in the discharge of his regular duties, to perform his work in reasonable safety; and an employee of the telegraph company, while in the exercise of ordinary care for his own protection, has the right to assume that such high-tension wires are properly placed and insulated so as to render them reasonably safe. See Ridgeway v. Sayre Electric Co., Ann. Cas. 1918D, 4, and notes (258 Pa. 400, 102 Atl. 123, L. R. A. 1918A, 991), for a full discussion of the law applicable to this case. See also Atlanta Consol. St. Ry. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 798); City of Dawson v. Smith, 18 Ga. App. 603 (90 S. E. 76); Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (70 S. E. 892).

2. Where one, especially one who is experienced in his business, has the choice of two ways of doing a given piece of work, the one safe and the other dangerous, he is under a duty to select the former; and if, instead of so doing, he voluntarily selects the latter, when he knows or ought in the exercise of due care on his part to know of the danger, he is guilty of a lack of ordinary care (Columbus Railroad Co. v. Dorsey, 119 Ga. 363, 366, 46 S. E. 635; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (5), 54 S. E. 110) ; but under the facts alleged in the petition in this case, it was for the jury to determine, from the evidence, whether there were two, ways, one safe and the other dangerous, in which the plaintiff could have performed the work in which he was engaged, and if so, whether he voluntarily selected the dangerous way with actual or imputable knowledge of the danger incident to doing the work in that way.

3. While it is true that if the plaintiff could, by ordinary care, have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover (Civil Code of 1910, § 4426), still questions as to diligence and negligence, including contributory negligence, - are questions peculiarly for the jury, and the court will decline to solve them by1 decision on demurrer, except in plain and indisputable cases. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259 (8), 260 (58 S. E. 249); International Cotton Mills v. Webb, 22 Ga. App. 309 (4), 310 (96 S. E. 16). Applying these principles of law to the petition in this case, it can not be said that the facts disclosed show, as a matter of law, that no other legal conclusion could be reached than that the plaintiff was guilty of a lack of ordinary care, or was injured by reason of his own negligence. So long as it can reasonably be said that fair-minded men might disagree upon these questions, the propriety of the plaintiff’s conduct under all the circumstances alleged is a question for determination by the jury, and not by the court.

Decided November 6, 1919.

Action for damages; from Muscogee superior court—Judge Howard. February 10, 1919.

4. The plaintiff having originally brought his action jointly against his master, the telegraph company, and the defendant electric company, and having subsequently by amendment stricken the telegraph company as a party defendant, the doctrine known as the “master and servant rule” is not involved. Thus, after the plaintiff had alleged that _ he did not know and could not by the exercise of ordinary care have discovered the danger to which he was exposed, the further allegations as contained in paragraphs 35, 36, 37 and 38 of the amendment, to the effect that the plaintiff did not know and had no opportunity of knowing that his master had furnished to him an unsafe place to work, and that he did not have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering' that the place had been rendered dangerous in which to work, were immaterial and irrelevant to the issues involved, and the special demurrer should for this reason have been sustained. Otherwise the petition as amended, construed as a whole, was not subject to the demurrers interposed, and the court did not err in so holding.

5. The facts presented in the cases of Columbus Railroad Co. v. Dorsey, 110 Ga. 363 (46 S. E. 635), Dorsey v. Columbus Railroad Co., 121 Ga. 697 (49 S. E. 698), and Zachery v. Mayor &c. of Madison, 18 Ga. App. 490 (89 S. E. 594), while in some respects similar, fire distinguishable from those alleged in the present petition, and the rulings there made are not in conflict with what is here decided. Some of the distinguishing features are pointed out in the ease of City of Dawson v. Smith, supra. In this case it is alleged that the danger existing by reason of defective insulation was in fact unknown to the petitioner, and after inspection from the ground could not be as.certained, and was not discoverable by him while climbing the pole. This, court can not say, as a matter of law, that the defects as described in the petition were patent. It is also alleged in this case, while it does not appear in the eases just cited, that certain rules were of force requiring that the high-tension wire of the defendant should be placed at a specified safe distance from the underlying telegraph wires, and that an inspection of the same, as made by the plaintiff, would and did fail to disclose their dangerous proximity. We are not prepared to say, as a matter of law, that this allegation is necessarily untrue.

>Judgment affirmed in parf and reversed in part, with direction that the costs be taxed against the plaintiff in error.

Stephens and Smith, JJ., concur.

James G. Puckett sued the Postal Telegraph-Cable Company and the Columbus Power Company jointly for damages on account of personal injuries. Subsequently he amended his petition by ' striking from it the Postal Telegraph-Cable Company as a defendant. The allegations of the petition as amended are substantially as follows: On or about December 13, 1916, at about four o’clock in the afternoon, petitioner, while in the employ of the Postal Telegraph-Cable Company as a lineman and engaged about its business, was injured as hereinafter set forth. M. C. Welch was at that time employed by the telegraph company as district foreman of maintenance of lines for the States of Georgia and Florida, and had general supervision and direction of petitioner as well as of the other employees of the telegraph company while engaged in its work; and the petitioner, with Jonah Puckett, D. Harrison, and two negro laborers whose names the petitioner does not know, were working under the supervision and control of said district foreman, taking down certain wires of the telegraph company suspended on poles running along Front street near the Georgia end of the lower concrete bridge in the city of Columbus, which spans the Chattahoochee river. In obedience to, a command of the said Welch, the petitioner had climbed a pole of the telegraph company, about 50 feet high, at the intersection of Ninth and Front streets, and as he reached the cross-arms of the telegraph wires at the top of the pole he was seized by an electric current of approximately 11,000 volts, which- drew him across the double cross-arms at the top of the pole and along and over a span of Avires of the telegraph company, with his left foot and leg near or against a high-powered wire of the defendant, which was carrying 11,000 volts of electricity, and with his right arm, between the elboAv and the shoulder, resting on one wire and his left hand on another wire of the telegraph company; and in this position, lying on his back across the telegraph wires, with his left leg near or in actual contact with said high-powered wire and the bottom of his right foot against one of said wires, he lay for some fifteen minutes, with the current of 11,000 volts of electricity passing through his body and limbs; and he lay in this position until the arrival of an officer who had been telephoned that he was caught in said current, and until the officer could telephone to the power plant of the defendant to cut off the current. This required about fifteen minutes. In the meantime the petitioner, as he lay on said wires, was being burned with the high-voltage current passing through his body.

It is further alleged: At the time the petitioner was injured the high-powered wire of the defendant crossed over and above the telegraph company’s wires, which the petitioner had gone up„ the pole to cut down, about three feet north of the telegraph pole. The high-powered wire which carried 11,000 volts of electricity was suspended only five and a quarter inches above the telegraph wires. Petitioner and the other employees mentioned above were engaged in cutting down the telegraph wires and removing a “lead” of telegraph wires and poles from the west side of Front street to near the curb on Front street, so as to comply with the requirements of a city ordinance. The number of volts carried by said high-powered wire was not "known to him. The telegraph wires were ordinarily charged with only a light current of electricity and were harmless. Several weeks before the injury the telegraph company was notified that this high-powered wire was so close to its wires as to render their position unsafe and make dangerous the place at the top of the telegraph pole for the'telegraph company’s employees. During the morning of the day on which petitioner was injured, until about ten o’clock, employees of the defendant were at work on the high-powered line and poles bearing said line. The telegraph company’s wires “were fastened to double-arms at the top of the telegraph pole, to arms on either side of the . . pole, with the . . telegraph wires fastened to insulators on both arms.” The telegraph wires and line had been standing at this point for about ten years, and the high-powered wires of the defendant had been suspended by it over the telegraph wires for about three years. The high-powered wire had been placed by the defendant dangerously near (that is to say five and a quarter inches above) the telegraph wires, and had remained in this condition for about three years. Petitioner was a stranger in the city of Columbus, and had been at work in Columbus not quite two days when he was injured.

It is further alleged, that the petitioner before climbing the pole made the usual examination of the pole and the wires, that is to say he examined visually from the ground the pole, cross-arms thereon, and wires at and near its top, and the relative height of the poles on either side of the telegraph pole on which the high-powered wires were strung; and from its foot the pole and cross-arms appeared to be safe, and the wires of both the telegraph company and the defendant appeared to be properly spaced, and, having no reason to apprehend that the high-powered wire was improperly spaced from the telegraph wires, he proceeded to climb the pole for the purpose of cutting down the wires. After he had ascended the pole some seven or eight feet he called out to a negro helper (whose name he does not know) to throw a rope to him, and as the negro threw the rope the petitioner reached out with both hands and caught it. He can not remember drawing his body back to the pole or placing his hands on the pole again, and from that moment until he regained consciousness in the hospital many days thereafter he suffered (on account of the injury) a complete lapse of memory, D and his mind is still blank as to everything that occurred from the moment he caught the rope until’he regained consciousness in the hospital. After he caught the rope he proceeded to climb on up towards the top of the pole in the performance of his duties, and when he came in contact with the telegraph wires at the top of the pole, which were ordinarily charged with a light current of electricity and harmless, he was seized by a current of 11,000 volts of electricity which was being transmitted from the high-powered wire to the telegraph wires.

It is further alleged: Where said wires crossed there were some twenty-odd wires, some of which were on the telegraph pole and the remainder of which were resting on the high-powered poles standing on either side of and adjacent to the high telegraph pole. The wires attached to the high-powered pole crossed the telegraph wires about at right angles, and the crossing of the wires was about midway between the two poles of the high-powered line. Several weeks before petitioner was injured the defendant was notified that its high-powered wire was so close to the telegraph wires as to render their position unsafe and make dangerous the place at the top of the telegraph pole for the telegraph company’s employees to work. Unknown to petitioner at the time he climbed the pole, the high-powered wire was so near the telegraph wires that, in swinging, a current of electricity intermittently flowed from it to the telegraph wires at the top of the pole. On that occasion the telegraph company ordered him to go to the top of said telegraph pole to cut down its telegraph wires; and the defendant had actual knowledge of the dangerous condition of said wires and their proximity each to the other, and of said wires to the top of the pole, several weeks before he was assigned to the work of cutting down the telegraph wires. As he climbed up said pole to and against the telegraph wires his back was to the high-powered wire, and for this reason he could not and did not see that wire, and did not and could not know of its close proximity to the telegraph wires and their dangerous position. In order for him to climb said pole it was necessary to use spurs, fastened to his feet and lower legs, and to stick the spurs into the pole by jabbing or kicking them, thereby supporting the weight of his body. As he climbed it was necessary to pull the spurs out of the pole and jab them higher, and thus, with his hands around the pole and his eyes on his feet and on the pole, to select suitable and safe places to stick his spurs, as his duties required him to do, he performed the difficult task of climbing to the top of the pole, up to and against the telegraph wires, with his back to the high-powered wire, not knowing or having any opportunity to know of the proximity of said telegraph wires to the high-powered wires, or their unsafe position and condition. The telegraph pole was crooked and twisted, and had what is commonly known among linemen as a belly and a back. Petitioner climbed its back, which was the usual, ordinary, and safe way of climbing the pole, it being unsafe and insecure to climb the belly of the pole, for, among other reasons, the spurs worn on the linemen’s feet were liable to slip out of the belly of the pole and precipitate the lineman to the ground. Petitioner, while climbing the back of the pole, climbed between the telegraph wires on the north side of the pole. It was the duty of the defendant to warn him that the high-powered wire was dangerouPy near to the telegraph wires which he was ordered and required to cut down. The rules of the telegraph company, which were known to the defendant, required that no high-powered wire should be strung and maintained at a distance of less than 42 inches above its telegraph wires, and the defendant, through its agents and employees, knew that said wires were approximately only five and a quarter inches apart, and had been in that close proximity for several weeks or months before the petitioner was injured.

It is alleged in paragraphs 36 to 38, that the petitioner did not know and had no opportunity of knowing that he was encountering any danger in going to the top of the telegraph pole to cut down the wires; that he did not know and had no opportunity of knowing that his master, the telegraph company, had furnished to him an unsafe place to work, and he did not have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering that it had been rendered dangerous as a place in which to work. It is alleged that he did not know and had no means or opportunity of knowing of the unsafe proximity of said high-powered wire to the telegraph Avires, and at the time aforesaid his attention Avas directed to the difficult work of climbing the pole; that he did not see and had no opportunity of seeing or discovering the unsafe proximity of the high-powered Avire to the telegraph Avires, and it was not discoverable by him while he was engaged about his duties as aforesaid; that he climbed the pole in the line of his duties, he being then in the exercise of all reasonable and ordinary care and diligence, to discharge the labors he had been ordered to do, apprehending no danger Avhatevcr.

It is further alleged: The defendant Avas negligent in that when said high-powered line was originally constructed the high-powered wires were placed within a closer distance to the telegraph Avires than 42 inches, and it alloAved its high-poAvered Avire gradually, during the three years, to sag until it had come within five and a quarter inches of said telegraph wires. The defendant knew or in the exercise of ordinary care and diligence should have known that its high-powered wire, being suspended within five and a quarter inches above the telegraph Avires, rendered the telegraph wires dangerous, and also made dangerous the Avires attached to the telegraph pole, and made them dangerous to the telegraph company’s men who chanced to work on said wires. He did not see the high-powered Avire sagging doAvn, for the reason that his attention was directed to the work of climbing the pole, and it Avas not discoverable by him while he Avas engaged about his duties. It was no part of his duty to inspect said wires to ascertain their relation to each other. He climbed to the top of said pole as he had been ordered to do, assuming, as he had a right to do, that it and its wires Avere in a safe condition; and he had never climbed or been on said telegraph pole before. It was the duty of the defendant from time to time to inspect said wires, which it negligently failed to do, and to see to it that said wires were not placed or allowed to sag dangerously near the telegraph wires, so as to protect the employees of the telegraph company from harm while they were engaged about their duties of working on the telegraph pole and wires. The defendant knew at the time it strung its wire only ñve and a quarter inches from the telegraph wires that it would be necessary for the employees of the telegraph company to ascend said pole to keep its wires, cross-arms, and insulators in repair, as well as to string new wires and take down old wires. The defendant knew that the employees of the telegraph company were engaged in taking down the telegraph wires on the day on which the petitioner was injured, and that while so engaged they would be exposed to the danger of the said current of 11,000 volts being transmitted from the high-powered wire to the tele<graph wires and from the telegraph wires to the bodies of the telegraph company’s employees. The defendant was further negligent in that it failed to warn petitioner of the unsafe condition of said wires, and permitted him, although the employees of the -defendant knew that the wire had sagged down and thereby made it extremely dangerous, to go to the top of the pole for the purpose of cutting down the wires, without warning him of their dangerous condition.

It is further alleged: The double cross-arms on the telegraph pole were fastened to it about seven or eight inches from its top, and were about eight feet long, and supported three wires on either side of the pole, and each of these wires was fastened to a pair of insulators on the double cross-arms. In order to get in a position to cut down the telegraph wires it was necessary for petitioner to climb up between the wires next to the pole, and while he was climbing between them, with his back to the high-powered wire, he received the electric shock and was injured. The defendant owed to the employees of the telegraph company the duty to have its high-powered wire properly and efficiently insulated, and, failing in this, to place that wire, a sufficient distance—not less than 42 inches—away from and above the telegraph wires, so as to prevent the telegraph wires from coming in contact with the high-powered wire, as well as protect the telegraph company’s employees against danger from its high-powered current while they were in the performance of their duties at or near the top of the tele-' graph pole. The high-powered wire was an insulated wire, and the defendant was negligent in that at the point where the current was transmitted from its high-powered line to the telegraph wires the insulation on the high-powered line was defective “and in two places was blistered or swollen so as to permit and did permit^ while petitioner was climbing up between said telegraph wires at or near the top of said pole with his back toward the high-powered wire, as a result of the telegraph wires shaking and swinging or being caught on the clothes or tools of petitioner and raised so that they, the telegraph wires came close enough to the said high-powered wire for the current to arc from the said high-powered wire at the point of the defective insulation thereon .to the telegraph wires and thence into petitioner’s body, injuring him as stated;” which defects in the insulation were unknown to petitioner and not discoverable or discernable by him from the ground . or from the telegraph pole upon which he was at work. The defects in the insulation were latent and were not discoverable by petitioner while he was engaged in the performance of his work. The defendant was negligent in that it allowed the insulation on its high-powered wire to become defective as aforesaid. It is alleged that the petitioner was in the exercise of all ordinary care and diligence at the time of the injury. Allegations are made as to the nature and extent of the damage to the plaintiff.

The defendant demurred, on the grounds that no cause of action was set out; that the facts alleged show that the petitioner, by the exercise of ordinary care, could have avoided the alleged injuries; that if the high-powered wire was in unsafe proximity to the wires of the telegraph company, the petitioner, by the exercise of ordinary care, could have known of the danger before he was injured; that it does not appear from the facts alleged that the negligence of the defendant was the proximate cause of the injuries, and that it appears that they were caused by his own negligence. Other grounds of demurrer were: that it is not alleged that the high-powered wire ever came in contact with the wires of the telegraph company, as a result of the negligence of the defendant; that it is not alleged that the petitioner made any effort to discover the distance the high-powered wire was from the wires of the telegraph company after he had started to ascend the pole, and no fact is alleged to show that he could not see the alleged unsafe proximity of the wires to each other hy the exercise of ordinary care; that the allegations that he exercised ordinary care in performing his duties, or in ascending the pole which he did ascend, are merely conclusions of the pleader, and no facts are alleged to show that he exercised such care; that it does not appear, from the facts alleged, that any act of negligence on the part of defendant was the proximate cause of the injury to the plaintiff; that no facts are alleged to show how he “was seized” by a current of electricity, and the allegations that he was so “seized” are too indefinite to enable the defendant to make its defense. The part of the petition in which it is alleged, that the high-powered wire was so near the wires of the telegraph company as that, in swinging, a current of electricity intermittently flowed from that wire to the telegraph wires was demurred to, upon the grounds: (a) It is not alleged how near the high-powered wire was to the telegraph wire. (&) The said allegation is too indefinite, (e) The said allegation is a mere conclusion of the pleader and does not sufficiently set forth facts as to the distance apart of the wires of the two companies. The allegations that the plaintiff could not see the high-powered wire, and could not know of its close proximity to the telegraph wires and their dangerous position, were demurred to, upon the grounds: . (a) No facts are alleged to show why petitioner could not see the high-powered wire and why he could not know' of its close proximity to the telegraph wires and their dangerous position. (&) The said allegations are mere conclusions of the pleader. Paragraph 31 of the amendment to the petition, which alleged that “petitioner climbed said pole in the usual and ordinary and safe way,” was demurred to, upon the grounds: (a) It is not alleged what was the usual, ordinary, and safe way of climbing the telegraph pole. (&) The said allegations are mere conclusions of the pleader and do not set forth facts specifically enough to enable the defendant to make its defense. (In paragraphs 46 and 47 it is alleged: “The telegraph pole was crooked and twisted and had what is commonly known among linemen as a belly and a back. Petitioner climbed the back of the pole, which was the usual, ordinary and safe way of climbing the pole, it being unsafe and insecure to climb the belly of the pole.”) That part of paragraph 34 of the amendment to the petition wherein it is alleged that “petitioner did not know and liad no opportunity of knowing that he was encountering any danger in going to the top of said telegraph pole to cut down said wires” was demurred to upon the grounds: (a) No facts are alleged to show why he had no such opportunity, (b) The said allegation is a mere conclusion of the pleader. Paragraphs 35, 36, 37, and 38 of the amendment to the petition, which alleged that the plaintiff did not know and had no opportunity of knowing that his master had furnished to him an unsafe place to work, that he did not'have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering that the place had been rendered dangerous as a place of work, were demurred to upon the ground that the said paragraphs are immaterial, irrelevant, and surplusage. The defendant demurred further upon the grounds, that no facts are alleged to show why the plaintiff did not or could not discover the defective insulation; that it does not, from any facts alleged, appear why the defects were latent, and it does appear that the defects were not latent; that it appeared that the plaintiff had the choice of two ways of doing the work which he was endeavoring to do when injured, the one safe and the other dangerous, and that instead of doing it in the safe way he voluntarily selected the unsafe way, when he knew or ought to have known of the danger.

The court overruled the demurrers, and the defendant excepted.

Frank U. Garrard', A. S. Bradley, A. W. ¡Oozart, for plaintiff in error.

Atkinson & Born, Ed. Wohlwender, contra.


text:
    10397.
    Simmons v. Commercial Bank of Savannah.
   Jenkins, J.

The Commercial Bank of Savannah sued Tucker, Pearson, Simmons, and Anderson on a promissory note made by Tucker and payable to the other defendants. The petition alleged, that the note was “discounted or sold” by Tucker to the petitioner before maturity; that it had been protested for non-payment; and that the petitioner had served each of the defendants with the statutory notice of suit in order to collect attorney’s fees. Simmons filed on his own behalf both a demurrer and an answer. The purport of the demurrer was that the petition failed to show whether the note was bought or discounted; that if bought it failed to show what was paid for it, and if discounted what amount was retained as discount. The answer of Simmons alleged that he was merely a surety on the note, and had given the statutory notice to that effect; that it was a renewal of a similar previous note; that he signed the original note at the request of Tucker and upon the faith of Tucker’s representations to him that the other indorsers were responsible; that prior to his signing the renewal note sued on the other indorsers “had conveyed their property to their wives ■ and had apparently prepared to defeat the collection of this debt,” which fact, although unknown to him and known to both Tucker and the bank at the time the renewal note was executed, was not disclosed to him by either of them; and that by reason of these facts the plaintiff had so increased his risk and liability as to work a discharge in his favor. The court overruled the demurrer, and on motion struck the answer, except so far as it related to attorney’s fees, and, after hearing evidence upon the issue as to the giving of notice for attorney’s fees, rendered judgment against all the defendants as prayed for.

Decided November 6, 1919.

Complaint; from city court of Savannah—Judge Freeman, October 3, 1918.

W. B. Stulls, for plaintiff in error.

U. H. McLaws, contra.

1. The demurrer was properly overruled. The necessary meaning of the petition is that plaintiff' became owner and holder of the note before maturity, and the transaction is therefore presumed to have been bona fide and for value. Civil Code (1910), § 4288. The word “discounted,” as here used, necessarily has the meaning, and in terms is shown to have been used as synonymous with, “sold;” and in such a ease it is not required that the purchaser of a note shall state the price paid therefor. McCall v. Herring, 116 Ga. 235, 242 (42 S. E. 468); 3 R. C. L. 977, § 187.

2. There was no error in striking the -plea. It does not appear that the bank was guilty of any fraud on its part. The plea sets forth that the original note was signed purely at the request of Tucker, and that the defendant relied only upon Tucker’s representations as to the responsibility of the other indorsers. It does not even appear that the bank knew that such representations had been made, or that it knew that defendant was merely a surety. No duty devolved upon the bank to voluntarily furnish information concerning the solvency of the other indorsers or sureties, in order to prevent the renewal by defendant of a note already signed by him purely at the instance of another and solely upon that person’s representations. Broughton v. Lazarus Co., 13 Ga. App. 153 (78 S. E. 1024).

3. There was sufficient evidence as to service of the required notice to collect attorney’s fees, and the court did not err in entering up judgment for the plaintiff.

Judgment affirmed.

Stephens and Smith, JJ., eoneiir.