author: Wade, C. J.

text:
    8470.
    Kendrick v. High Shoals Manufacturing Company.
   Wade, C. J.

1. The 'plaintiff, being a child less than 14 years of .age, was not bound to exercise the ordinary care exacted of every prudent' man, but only to exercise due care according to his age and capacity. “Such care as the capacity of the particular child enables it to use naturally and reasonably, is what the law requires.” Western & Atlantic Railroad Co. v. Young, 81 Ga. 397 (2) (S. E. 912, 12 Am. St. R. 320). See also Western & Atlantic Railroad Co. v. Young, 83 Ga. 512 (10 S. E. 197); Georgia Midland & Gulf Railroad Co. v. Evans, 87 Ga. 673 (13 S. E. 580); Linder v. Brown, 137 Ga. 352 (73 S. E. 734); Elk Cotton Mills v. Grant, 140 Ga. 727 (5) (79 S. E. 836, 48 L. R. A. (N. S.) 656); Gibbs v. Tifton Cotton Mills, 15 Ga. App. 213, 220 (82 S. E. 921).

2. “Where the injured employee is a child of tender years, the master, is bound to a higher degre of care.” Augusta Factory v. Barnes, 72 Ga. 217, 218 (7) (53 Am. R. 838). The law recognizes a distinction between a master’s duty to an adult employee, and the duty to an employee who, from youth or inexperience or other mental immaturity or infirmity, is less able to understand or guard against the perils to which he may be exposed in the course of his employment (Davis v. Augusta Factory, 92 Ga. 712, 713, 18 S. E. 974); and a master owes to an employee of tender years the duty of taking such extra precau- • tions against his forgetfulness of warnings and incapacity to appreciate dangers, and other natural childish tendencies, as will reasonably insure his safety as against even such dangers as might be obvious to an adult employee who is in the exercise of ordinary care. See, in this connection, Beck v. Standard Cotton Mills, 1 Ga. App. 278 (57 S. E. 998); Gibbs v. Tifton Cotton Mills, supra; Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10 (2) (86 S. E. 260).

3. The trial court having .previously instructed the jury that when the word “servant” was used in the charge they would understand that the same referred to the injured minor, it was error to instruct the jury that “the law defines the duty of a servant as follows: A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.” The court likewise erred in instructing the jury that “in this case the law required of the master the exercise of ordinary care and diligence, and the failure to exercise such care and diligence.would constitute negligence;” and in further instructing them that “the master is in duty bound to exercise ordinary care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence;” and likewise in instructing them that “if the plaintiff, the law says, by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, if shown, he is not entitled to recover.” These instructions, as well as others contained in the charge to the jury, placed upon the injured child the burden of exercising “ordinary” care instead of the “due” care exacted by law of a person, -of his age, experience, intelligence, etc., and .'likewise bound the master to the exercise of no more than ordinary diligence, notwithstanding the tender years of the plaintiff, and constituted harmful error.

Decided November 16, 1917.

[(a) Elsewhere in the charge, though not in connection with the excerpts quoted or referred to above, the court charged the jury that “due” care, taking into consideration the tender years, etc., of the child, was required of the injured minor, but nowhere was the broad contrary instruction that the servant was bound to exercise “ordinary” care, nor the other instructions on this line, expressly retracted, nor were any of the modifications of the rule of diligence on account of the tender' years ofthe servant stated in such close connection with these erroneous general instructions and definitions as probably to re- ■ move altogether the harmful effects thereof and prevent natural confusion in the minds of the jury as to what degree .of diligence was . actually required of the servant.

(6) -Likewise, the court elsewhere instructed the jury that there was “some distinction between the duty which a master owes his adult servant, or employee who, from his youth and [in] experience or other mental immaturity or infirmity, is not able, without instruction, to understand the perils to which he is exposed in the course of his em- • ploymént,” but he simply defined this difference to be that “as to the ¿ ' latter class of servants the master must give them instructions with regard to the dangerous character of the machinery with or about . which they are employed, and of the means necessary to' avoid these -. dangers,” thus charging the master with the additional duty only of „ warning a minor employee, whereas “a master employing as his serv- ■ ant, in a -dangerous occupation, a child of tender years, owes to such child not only the duty of warning him of the dangers, but also of taking, such additional precautions [italics ours] against the child’s forgetfulness of warnings, his incapacity to appreciate dangers, and other natural childish tendencies, as will reasonably insure his safety.” Beck V-. Standard Cotton Mills, supra. Nowhere else in the charge was . it suggested that the master owed any other duty (than that of warning him) to a youthful employee, beyond the duty of ordinary care which he would owe to an adult servant or employee. See, in this . connection, Americus, Preston & Lumpkin Railroad Co. v. Luckie, 87 Ga. 6 (13 S. E. 105); Atlanta, Knoxville & Northern Railway Co. v. Gardner, 122 Ga. 82 (49 S. E. 818); Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (b), 370 (83 S. E. 445); Bryant v. State, 15 Ga. App. 535 (83 S. E. 795); Savannah, Florida & Western Railway Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239).

4. The grounds of the motion for new trial involving the sufficiency of the . evidence are not considered, and the various remaining special exeep- .. tions are either without any substantial merit, or are covered in effect , by the rulings in the preceding heádnotes.

Judgment reversed.

Jenkins and Luke, JJ., concur.

Action for damages; from Walton superior court — Judge Brand. ■ January 20, 1917.

Middlebrooks & Pennington, T. H. Burruss Jr., Brwin, Rucker & Erwin, Walker & Roberts, for plaintiff.

Hal G. Nowell, J. H. Felkér, A. C. Stone, for defendant.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8616.
    Thurman v. Smith.
    Decided November 16, 1917.
    Buie for contempt; from city court of Nashville — Judge Chris-, tian. February 15, 1917.

      R. Eve, Hendricks, Mills & Hendricks, for plaintiff.

      W. D. Buie, for defendant.
   Jenkins, J.

Under the ruling made in Thurman v. Avera, 20 Ga. App. 802 (93 S. E. 495), the order passed by the trial judge denying the relief prayed against the defendant in the trover suit, on account of his failure to give the bond previously required by the court in the discharge proceedings instituted by the defendant, was not erroneous.

Judgment affirmed.

Wade, 0. J., and Luhe, J., concur.


author: 'Luke, J.

text:
    8715.
    Medlock v. Morgan County Bank.
    Decided November 16, 1917.
    Certiorari; from Morgan superior court — Judge Park. March 24, 1917.

      M. 0. Few, for plaintiff in error. . E. H. George, contra.
   'Luke, J.

Upon the petition for certiorari and the answer it was not error for the judge of the superior court to sustain the certiorari and direct a new trial of the case.

Judgment affirmed.

Wade, C. J., and Jenhins, J., concur.


author: Luke, J.

text:
    8738.
    Bennett v. Mayor and Aldermen of Savannah.
   Luke, J.

The evidence of the plaintiff did not raise an issue as to' alleged negligence of defendant in maintaining its streets in a reasonably safe condition; and the evidence not proving the case as laid in the petition, the court did not err in granting a nonsuit. City of Atl anta v. Stewart, 117 Ga. 144 (43 S. E. 443); Perkins v. West, 146 Ga. 751 (92 S. E. 277).

Decided November 16, 1917.

Action for damages; from city court of Savannah — Judge Davis Freeman. February 26, 1917.

Oliver & Oliver, for plaintiff.

B. J. Travis, D. S. Atkinson, for defendant.

Judgment affirmed,

Wade, G. J., and Jenkins, J., -concur.


text:
    8778.
    Smith v. Gillon.
    Decided November 16,
    — Rehearing denied December 13, 1917.
    Certiorari; from Fulton superior court — Judge Bell. March 26, 1917.

      Alex W. Stephens, Claude Brackett, for plaintiff.

      Nathan Coplan, for defendant.
   Luke, J.

Smith, on January 11, 1916, sued out an attachment against Griggs, which attachment, on March 15, 1916, was levied upon property •bought by Gillon on January 17, 1916. The issue as to the bona fides of the sale and notice of the existence of attachment against Griggs, who resided out of the State, was fairly and fully submitted to a jury in the municipal court of Atlanta. The issues were determined in favor of Gillon. Upon the petition for eertiorar.i and the answer it was not error, for any of the reasons assigned, for the judge of- the superior court to overrule the certiorari.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    8795.
    Butler v. Central of Georgia Railway Company.
   Luke, J.

Butler sued the Central of Georgia Railway Company, alleging substantially as follows: On a designated night he went to the depot of the defendant for the purpose of putting four negro passengers on the train to send them to Chattanooga, there to work in the factory of the plaintiff’s employer. After being admitted through the gate at the depot, he approached an agent of the company and asked him where the negro coach was, explaining that he wanted to put four negro laborers he had with him on that coach; and the coach was pointed out to him by the agent. He thereupon went with the negroes and entered the coach, and while there the train started on its trip. He immediately went toward the platform by which he entered the coach and found that the outer vestibule doors of the coach had been closed. He then rushed through that coach and found the doors next to the steps closed at that end. He finally found the same agent to whom he had spoken while at the depot, closing the vestibule doors at the rear end of the third coach of the train. He requested this agent to open the door for him, so that he could get off the train, stating that he had no ticket and that he did not expect to go on the train and could not leave Macon; that the said agent refused to do so, but upon a second request he did open the door, and the plaintiff attempted to alight from the train, and was injured in so doing. He alleges that the place where he tried to alight appeared to be smooth, but that it was dark, and for this reason he could not see very well, and was unfamiliar'With the place and could not tell at what rate of speed the train was going. Held, that the facts pleaded in the petition do not show that the plaintiff received his injuries by any negligence on the part of the defendant, its agents or servants. It was, therefore, not error to sustain a general demurrer to the petition, and to dismiss the suit. Blodgett v. Bartlett, 50 Ga. 354; Southern Ry. Co. v. Nichols, 135 Ga. 15 (5) (68 S. E. 789) ; Ricks v. Ga. So. & Fla. Ry., 118 Ga. 259 (45 S. E. 268) ; Johns v. Ga. Ry. & El. Co., 133 Ga. 525 (66 S. E. 269); Gosnell v. Central of Ga. Railway Co., 17 Ga. App. 67 (2) (86 S. E. 90).

Decided November 16, 1917.

Action, for damages; from Bibb superior court — Judge Matbews. March 9, 1917. .

Davenport Guerry, Warren Roberts, for plaintiff.

Jordan & Lane, for defendant.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Ltjké, J.

text:
    8799.
    Evans v. Blackwell.
    Decided November 16, 1917.
    Certiorari; from Banks superior court — Judge Brand. September term, 1916.

      Oscar Brown, for plaintiff in error.

      ■A. J. Griffin, J. B. G. Logan, contra.
   Ltjké, J.

Upon the petition for certiorari and the answer the judge of the superior court did not err in sustaining the certiorari.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    8807.
    Hicks v. Lindsey.
    Decided November 16, 1917.
   Luke, J.

The allegations contained in the petition for certiorari are sufficient to require the sanction of the same, and it was error for the court to refuse the sanction.

Judgment reversed.

Wade, O. J., and Jenkins, J., concur.

Petition for certiorari; from Berrien superior court — Judge Thomas. April 14, 1917.

Hendricks, Mills & Hendricks, for plaintiff in error.

J.' P. Knight, contra.


text:
    8846.
    State of Georgia, for use, etc., v. Johnson.
   Wade, C. J.

1. Leaving out of consideration all extraneous recitals ap- ' r-pearing in the answer of 'the magistrate and in the briefs of counsel for both parties, the sole issue at the trial of this case in the justice’s court was whether or not the title to the property levied upon by the plaintiff in fi. fa. was vested in the defendant in fi. fa. or in the claimant. The fact that the claimant himself had directed another fl. fa. ■ in his favor to be levied upon the same property, as the property of the same defendant, would not preclude him from interposing his claim ■ to- said property, .as against the plaintiff in fi. fa., or furnish a sufficient legal ground for the dismissal of his claim on the trial of the • issue raised by the levy of the fi. fa. in favor of such other plaintiff and the interposition of his said claim to the property, though such fact be evidence, if properly presented to the court at the trial, which might be considered in the light of an admission by the claimant against his title, subject to explanation.

2. Though at the trial in the justice’s court questions of both law and fact were raised, there was no conflict in the evidence and no issue of fact was presented by the record in the superior court for determination, and from a reasonable interpretation of the petition for certiorari only rulings involving questions of Ihw were complained of; and therefore the judge of the superior court did not err in declining to dismiss the certiorari because there had been no antecedent trial before a jury in the justice’s court, notwithstanding less than $50 was involved. Toole v. Edmondson, 104 Ga. 776, 783 (5) (31 S. E. 25).

3. The court properly sustained 'the certiorari, and did not err in not fail- ' ing to render final judgment therein, and in remanding the case to the justice’s court for a retrial. 'Though there was no conflict in the evidence at the trial under review, and hence no issue of fact was involved in the consideration of the certiorari, the case must finally be determined upon the evidence, and the judge of the superior court could .not know with certainty that the evidence on another trial would be the same. “When the only error alleged in a petition for certiorari is that the verdict therein complained of is contrary to law and to the evidence, and it appears that the evidence demanded a verdict for the plaintiff in certiorari, the superior court should, of course, sustain the : certiorari; .but it is erroneous in such a case, though there be no eon- . flict in-the evidence, to render a final judgment in his favor. This is so for the reason that in such a case the error complained of is not an error in law which must finally govern the ease,’ and further, because it could not be known with certainty that the evidence on another trial would be the same.” Holmes v. Pye, 107 Ga. 784 (33 S. E. 816). See also Atlantic Coast Line R.'Co. v. Shuman, 121 Ga. 113 (48 S. E. 680). Although it may clearly appear from the facts disclosed by the record that the verdict rendered in the lower court was without evidence to support it, if the final 'determination of a ease tried in a justice’s court and carried by certiorari to the superior court, does not depend upon any controlling question of law, but issues of fact are involved, the superior court has no authority to render a final judgment therein. Patterson v. Central Ry. Co., 117 Ga. 827 (45 S. E. 250).

Decided November 16, 1917.

Certiorari; from Fayette superior court — Judge Searcy. March 22, 1917.

J. W. Culpepper, for plaintiff.

E. J. Reagan, W. B. Hollingsworth, for defendant.

Judgment affirmed.

.Jenhins and Luke, JJ., concur.


text:
    8848.
    Atlantic Coast Line Railroad Company v. Fiveash.
    Decided November 16, 1917.
    Appeal; from Clinch superior court — Judge Summerall. April 28, 1917.

      R. Q. Dickerson, Wilson & Bennett, for plaintiff in error.

      W. T. Dickerson, contra.
   Luke, J.

The charge of the court, when considered as a whole, was not subject to the criticisms urged; and there being some evidence to authorize the verdict, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8861.
    Reed Oil Company v. Georgia, Florida and Alabama Railway Company.
   Luke, J.

Reed Oil Company sued Georgia, Elorida and Alabama Railway Company, alleging: “Petitioner shows that on March 29, 1915, plaintiff instructed defendant, through its depot agent at Colquitt, Georgia, to transport by freight to plaintiff at its address in Atlanta, Georgia, certain merchandise then in the hands of defendant at Colquitt, Ga., to wit: one half barrel of EE Auto Oil, thirty-two gallons, of the value of $13.44;. one barrel of triple E light oil, fifty-two gallons, of the value of $23.50; nine automobile tires and two inner tubes, of the value of $204.57. Petitioner shows that defendant negligently failed and refused to forward ■ said shipment by freight with reasonable despatch, but, in violation of petitioner’s instructions aforesaid, held same in its depot .in Colquitt, Ga., where said shipments were totally destroyed by fire on or about April 11, 1915, all to petitioner’s damage as aforesaid.” The defendant demurred generally. The court offered to allow the plaintiff the privilege of amending the petition by alleging ownership of the property to be in the plaintiff; but the offer was declined. Held, that the court did not err in sustaining the general demurrer and in dismissing the suit.

Decided November 16, 1917.

Action for damages; from Miller superior court — Judge Worrill. April 23, 1917'.

Hewlett & Dennis, W. I. Geer, for plaintiff.

T. 8. Hawes, P. D. Rich, for defendant.

Judgment affirmed.

Wade, G. J., and, Jenkins, J., concur.


text:
    8890.
    McDonald v. Reese.
    Decided November 16, 1917.
    Distraint; from city court of Leesburg — Judge Martin. April 17, 1917.

      W. H: Beckham, for plaintiff in error.

      Gruger Westbrook, contra.
   Luke, J.

The evidence authorized the judgment; and in view of the note of the trial judge, there was no merit in the other assignments of error.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    8896.
    Harper v. Fulton Bag and Cotton Mills.
   Luke, J.

The plaintiff alleged, that he was an employee of the defendant, working under Courley and Turner; that on the same floor on which he worked there was a different department under the supervision of Jim Clay, who had no authority or control over him; that between the room in which he worked and that in which Clay worked there was a hallway, on one side of which was an elevator;, that near the door in the room in which he worked there was a water-hydrant; that he was sent by his superior officer to the shop of the defendant to perform a duty; that the nearest and most convenient way for him to go to the shop was through two rooms and then through the room where Clay worked, and on to the shop; that after he had finished his duty at the shop he returned through the room where Clay worked; that after passing through this room into the adjoining room he stopped to get a drink of water, and about the time he finished getting the water Clay eame into the room where the hydrant was located, and assaulted him by beating him and shoving him back through the door near the elevator, and when near the elevator Clay gave him “a hard, vicious knock and lick,” and he fell backward against the door of the elevator and elevator-shaft; that the door gave way under the impact of his weight, and he fell into and through the elevator-shaft, receiving injuries; that the door or gate to the elevator was loose and insecure, and that this fact was not known to him, but was known to the defendant company, and by the exercise of ordinary care the defendant ought to have known of this defective condition; and that the defendant was negligent in having and using the defective door or gate, and in failing to inspect it and to keep it in proper repair, so as to prevent any one who might stumble pr otherwise fall against it from being precipitated into said feV™tor-shaft. To this petition the defendant demurred upon the grounds: (a) that no cause of action is set out against this defendant; (6) because the alleged negligence of the defendant was not the proximate cause of the plaintiff's injury; (e) because, if defendant was negligent as alleged, the criminal conduct of Clay intervened and was the proximate cause of the injury. Held, that it was not error to sustain the general demurrer and to dismiss the suit. Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Southern Ry. Co. v. Web, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109) ; Beckham v. Seaboard Air-Line Ry., 127 Ga. 550 (56 S. E. 638, 12 L. R. A. (N. S.) 476); Shaw v. Macon, 6 Ga. App. 306 (64 S. E. 1102) ; A. C. L. R. Co. v. Adeeb, 15 Ga. App. 842 (84 S. E. 316) ; Andrews v. Kinsel, 114 Ga. 390 (40 S. E. 300, 88 Am. St. R. 25) ; Bowers v. Southern Ry. Co., 10 Ga. App. 367 (73 S. E. 677).

Decided November 16, 1917.

Action for damages; from city court of Atlanta — Judge Reid. March 27, 3917.

J. Mallory Hunt, for plaintiff.

Rosser, Slaton, Phillips & Hopkins, for defendant.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Broyi.es,-P. J.

text:
    8983.
    Ederheimer, Stein & Company v. Carson.
    Decided November 16, 1917.
    Garnishment; from Tift superior court — -Judge Eve. May 12, 1917.

      J. J. Murray, for plaintiff. Fulwood & Hargrett, for defendant.
   Broyi.es,-P. J.

Under the particular .facts of the case the garnishee was liable to the plaintiff; and the court, sitting by consent without the intervention of a jury, erred in finding against the traverse to the answer of the garnishee.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: Harwell, J.

text:
    8993.
    LOUISVILLE & NASHVILLE RAILROAD CO. v. ROGERS.
    1. The excerpts from the charge of the court complained of, when considered in connection with the general charge, are not erroneous for any of the reasons assigned.
    2. It is not reversible error, under section 4863 of the Civil Code of 1910, for the judge, in discussing with counsel the admissibility of testimony or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented, or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony.
    3. The evidence authorized both the finding of the jury and the amount of their verdict, and the trial judge did not err in refusing a new trial.
    Decided November 16,1917.
    Action for damages; from Murray superior court — Judge Wright presiding. May 19, 1917.
    Mrs. Eogers brought suit against the railroad company for personal injuries, alleging, that, in alighting from the defendant’s train she was injured by the negligence of its agents; that when she started’ to get off the train she had a child in her arms, and that no stool was placed for her upon which to step; that the bottom step was some distance from the ground; and that as she started to step off, the train suddenly started forward, causing her to step, or fall, with considerable force to the ground. Her testimony supported, in the main, the allegations of the petition. It showed that she was a passenger on the train of defendant company; that when the train stopped at the station she started to get off, carrying a small child in her arms; that no stool was placed for her to step upon in getting down; that the flagman was on the bottom step, and did not give her any assistance; that as she started to alight the signal was given for the train to start, and that it suddenly started as she was alighting, causing her to fall or step with considerable force to the ground, with the child in her arms; that she was pregnant at the time, and had been so for four or four and a half months; that the sudden step and the force with which she came down to the ground injured her; that “wasting” set in, her health went down, she suffered pain, and finally, about three months after the- occurrence, she had a miscarriage, which she alleges was a result of the injury; and that since then she has continued to suffer pain and her health has been bad. There was considerable testimony tending to support her claim that she had been hurt by this occurrence, and that her health had suffered thereby. The testimony of the defendant’s witnesses contradicted that of the plaintiff, and tended to show that no such occurrence as she detailed actually occurred. While the employees of the train did not remember the plaintiff being there on the occasion alleged, they testified as to their custom in assisting passengers from the train. Other testimony was offered in an effort to show that the injury did not happen as the plaintiff had testified, that she had not been injured, and that her health was good, etc. The jury found for the plaintiff $3,500. The court overruled a motion for a new trial, and defendant excepted.

      Tye, Peeples & Tye, G. N. King, D. W. Blair, for plaintiff in error. J. J. Bates, IF. E. Mann, B. A. Hendriclcs, contra.
   Harwell, J.

(After stating the foregoing facts.) 1. In four grounds of the amended motion for new trial instructions to the jury are complained of. In the first, error is assigned upon an instruction on the subject of damages for pain and suffering, upon the ground that it was an expression of opinion by the court that the plaintiff was entitled to prevail. By examination of the charge it will be seen that in the preceding sentence the trial judge had instructed the jury that "if you find the defendant is liable, then you will look and see what amount of pain and suffering plaintiff has endured,” etc. When taken in connection with the charge in immediate connection therewith, it was not error for the reason alleged in the motion.

The second and third grounds complain of certain instructions to the jury as to the care which the defendant owed the plaintiff, and as to whether the defendant exercised toward the plaintiff that degree of care, namely, extraordinary diligence, upon the ground that it was therein assumed that she was a passenger upon the defendant’s train. When these charges are taken in connection with the entire charge of the court, it can readily be seen that this criticism is not well taken, as the court submitted to the jury the question whether or not the plaintiff was a passenger on the defendant’s train.

In the fourth ground the charge of the court on the credibility of the witnesses and the weight to be given to the testimony is al~ leged to be error, in that the court told the jury that “if you see fit to do so, you may take into consideration their manner and demeanor upon the stand, their interest or their want of interest, the opportunity they may have to know the.facts about which they testify,” etc., upon the ground that the instruction was not given to the jury as a rule governing them in arriving at the truth, but allowed them, “if they saw fit,” to consider the instruction the court was giving them. By reference to § 5732 of the Civil' Code of 1910 it will be seen that this criticism is not well taken, as it is there said: “In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case,” etc. After all, it is for the jury to say what weight they will give to these matters in determining the credibility of witnesses.

2. In the fifth ground of the amended motion it is said that the following question was asked by counsel for the defendant company of the conductor, and that the following statements by the court were made: Q. “Was that the way she was landed at Ramhurst or not?” Counsel for the plaintiff objected upon the ground that the question was leading; whereupon the court said: “I understand this witness doesn’t know anything about this lady being on the train.” Counsel for defendant: “That’s what he says.” By the court: “He can’t say that’s the way she was landed at Ramhurst. I think it very clear without all this twisting around, with four hundred questions, that all this witness knows is that nothing out of the ordinary happened when he stopped there at Ramhurst; and why in the world we want to take ■ this roundabout way, and take an hour at it, I don’t understand.” .Movant assigns error upon this statement of the court, made in the presence of the jury, upon the ground that it was calculated to discredit the testimony of the defendant’s conductor. We can not take this view of it. The conductor, when on the stand, had testified: “I don’t remember a thing about this injury, if it occurred. I don’t know anything about it. I don’t remember the fact that Mrs. Rogers was on the train or that she got off. I don’t remember anything that was done there on the 6th of October, 1913, except what was the custom and the rules .of the company.” The trial judge, therefore, in replying to counsel for defendant company, was simply reciting the previous .testimony of the witness. This witness, according to his testimony, did not remember the fact that Mrs. Rogers was on the train or that she got off, and could only say what happened from the citstom and rules of the company. It was not error for the court to call attention to that fact, in ruling on the admissibility of the question. If the witness had been permitted to answer the question and had said that “she was landed that way at Ramhurst,” it would have clearly been a conclusion and inadmissible. It is not reversible error, under § 4863 of the Civil Code, for the judge, in discussing with counsel the admissibility of. testimony, to refer to the evidence or to the statements of witnesses, provided he does not get out of the line of legitimate discussion upon the point presented, or use such language as to indicate apparent or actual judicial approval, or disparagement, of any witness or any part of the testimony. Realty Co. v. Ellis, 4 Ga. App. 402 (6) (61 S. E. 832); Jones v. Pope, 7 Ga. App. 538, 540 (67 S. E. 280); Chattahoochee Valley Ry. Co. v. Bass, 9 Ga. App. 83 (7) (70 S. E. 683). “Observations of the court to counsel in the hearing of the jury during the progress of the trial, though open to criticism, if of but slight importance and only possibly, not probably, injurious, will not work a new trial.” Chattanooga etc. R. Co. v. Palmer, 89 Ga. 161 (3) (15 S. E. 34). The statement by the court that a witness said a certain-thing is not, in a legal sense, an expression of opinion as to the evidence. "What is sworn is testimony; what is the truth deduced therefrom is evidence. Williams v. Hart, 65 Ga. 202 (5) ; Barnes v. State, 89 Ga. 316 (15 S. E. 313). We do not think that the statement of the trial judge discredited the testimony of the conductor; and if subject to criticism, it did not constitute such harmful error as will require the grant of a new trial. Moreover, it has been held that “prejudicial remarks made by the court in the hearing of the jury furnish no ground for a new trial, but in such a case a motion to declare a mistrial should be made, and upon the judge’s refusal to grant this motion his ruling would be subject to review.” Stapleton v. State, 19 Ga. App. 36 (13) (90 S. E. 1029), and eases cited; Wilcox v. State, 19 Ga. App. 83 (4) (90 S. E. 1032). -

3. While the evidence was conflicting, the jury passed upon it, and the trial judge approved the verdict; and this court will not interfere. We think the evidence authorized the verdict, and can not say that the amount of the verdict is excessive, as is contended by the plaintiff in error.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    9169.
    BRANNON v. THE STATE.
    1. “The evidence is overwhelming that the defendant is guilty; and where such is the ease, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.”

      (a) “To authorize the granting of a new trial where evidence is adduced which fully warrants the verdict rendered, not only error but injury must be shown.”
    2. The court properly reformed the sentence. “Where a verdict of guilty is rendered on a number of counts, a sentence which does not pxeeed that which may legally be imposed on any one count is supported by the indictment, if any count is good.”
    Decided November 16, 1917.
    Indictment for uttering forged note; from Chatham superior court — Judge Meldrim. August 23, 19Í7.

      Osborne, Lawrence & Abrahams, for plaintiff in error.

      Walter G. liar ¿ridge, solicitor-general, contra.
   Bloodworth, J.

1. L. G. Brannon was cashier of the Farmers & Merchants Bank of Georgetown, Georgia. This bank owed the Citizens & Southern Bank of Savannah, Ga., a note for $5000. In renewal the accused executed a new note for $5000, payable ■“to the order of the Citizens & Southern Bank at its banking house in Savannah, Ga.,” signing the note “Farmers & Merchants Bank by L. G. Brannon, Cashier,” and indorsed thereon the names of A. T. King, T. W. Oliver, W. E. Gay, R. A. J. Boyett, and D. M. Davidson, who were directors of the bank of which the accused was cashier. The note so executed' and indorsed was sent to the Citizens & Southern Bank and by it accepted in renewal of the former note. After the maturity of the note last executed the president of the Savannah bank went to Georgetown to look after its collection, and found that at least a portion of the collateral given to secure the note to his bank, which collateral had been sent for collection to the bank at Georgetown of which Brannon was cashier, had been sent to a bank in New York to secure a note given to the bank there by the Georgetown bank. He then demanded settlement of the past-due note to the Citizens & Southern Bank, and it was secured by mortgage and finally paid. The Farmers & Merchants Bank failed. The grand jury of Chat-ham • County indicted L. G-. Brannon for uttering said note, “knowing the indorsements aforesaid on said promissory notes to have been unlawfully, falsely, and fraudulently made and forged.” Upon the trial it was shown that the accused had sent the note to the Citizens & Southern Bank, that the indorsements thereon were forgeries, and that the accused admitted making the indorsements. Indeed in his statement to the jury he admitted that he signed the names of the directors on the back of the note, hut claimed that he intended to notify them, and that what he did was without any intent to defraud. The real issue under the indictment was that of intent. The jury returned a verdict of guilty, with a recommendation that the punishment he as for a misdemeanor. The motion for a new trial contains a number of allegations of error; but if any errors were committed during the progress of the trial, they were not so material as to cause the jury to return an unwarranted verdict. Indeed, under our view of the ease, the jury could not have found any other verdict than that of guilty had the .case been submitted to them after a faultless trial. “The evidence is overwhelming that the defendant is guilty; and where such is the case, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.” Hagar v. State, 71 Ga. 164 (3a), 167; Norton v. State. 137 Ga. 845 (74 S. E. 759); Nalley v. McManus, 135 Ga. 713 (3), 714 (70 S. E. 255); Watson v. Southern Railway Co., 132 Ga. 552 (64 S. E. 549); Gibson v. Wilson, 130 Ga. 243 (3) (60 S. E. 565); Kelly & Jones Co. v. Moore, 128 Ga. 683 (4) (58 S. E. 181); Bone v. State, 86 Ga. 108 (4) (12 S. E. 205); Beck v. State, 57 Ga. 351 (2); Rowe v. Ware, 30 Ga. 278 (3); Bird v. State, 14 Ga. 43 (4); Murphy v. Justices. 11 Ga. 331 (2); Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680); Gordon v. Cobb, 4 Ga. App. 49 (4) (60 S. E. 821); Abbeville Trading Co. v. Butler, 3 Ga. App. 138 (3) (50 S. E. 450). “To authorize the granting of a new trial where evidence is adduced which fully warrants the verdict rendered, not only error but injury must be shown.” Taylor v. State, 5 Ga. App. 237 (62 S. E. 1048); Walker v. Riley, 6 Ga. App. 519 (3) (65 S. E. 301).

2. We think the verdict of guilty on each count of the indictment can be construed as a general verdict of guilty; and the reforming of the sentence, so as to impose a single fine and limiting the imprisonment- in the county jail of Chatham county to six months, cures the alleged errors in reference to this matter. ‘"Where a verdict of guilty is rendered on a number of-counts, a sentence which does not exceed that which may legally be imposed on any one count is supported by the indictment, if any count is good.” Peters v. U. S. 94 Fed. 128 (7) (36 C. C. A. 105).

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    9185.
    Weldon v. The State.
   Bloodwortii, J.

1. The courts of last resort of this State have laid down the following general principles:

la) “While it is the duty of the court, without request, to present the particular defense upon-which the defendant in a criminal prosecution relies, it is not necessary, in the absence of a request, to refer specifically to the particular testimony upon which that defense is based, or to inform the jury of the defendant’s specific contentions.” Groves v. State, 8 Ga. App. 691 (2) (70 S. E. 93). See also Central of Georgia Railway Co. v. McKinney, 118 Ga. 535 (45 S. E. 430) ; Williams v. State, 120 Ga. 870 (48 S. E. 368); Wrightsville & Tennille Railroad Co. v. Gornto, 129 Ga. 204 (3) (58 S. E. 769).

(6) If the substantial law covering the issues made by the pleadings and evidence is given in charge, and more specific instructions áre desired, timely and appropriate written request therefor should be made. Anthony v. State, 6 Ga. App. 784 (3) (65 S. E. 816).

(c) “An omission to charge a proposition of law favorable to the accused can not be taken advantage of by assigning error upon a wholly unobjectionable instruction given to the jury.” Williams v. State, 120 Ga. 870 (2) (48 S. E. 368). See also Wynn v. Bridges, 144 Ga. 497 (3) (87 S. E. 665); Smith v. Brinson, 145 Ga. 407 (2) (89 S. E. 363); Willis v. Hudspeth, 145 Ga. 439 (3) (89 S. E. 427) ; Killian v. State, 19 Ga. App. 750 (2) (92 S. E. 227.).

Id) “That numerous instructions given by the court to the jury may not have been precisely and in every respect adjusted to the facts in evidence is not cause for a new trial, when it appears that these instructions were in themselvs correct propositions of law, and that they contained nothing which could have misled the jury or in any way have tended to prevent their reaching a correct conclusion upon the real issues involved.” Conley v. Buck, 100 Ga. 188 (3) (28 S. E. 97).

(e) “The judge should explain to the jury the meaning of technical terms which occur in his instructions; but a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation.” Holmes v. Clisby, 121 Ga. 241 (7) (48 S. E. 934, 104 Am. St. R. 103). See also Pickens v. State, 132.Ga. 46 (1), 47 (63 S. E. 783).

(/) “It is not error for the judge in his charge to the jury to give cautionary instructions tending to impress upon them the gravity of the. issues involved,' where nothing is said in such instructions tending to prejudice the rights of the defendant or in any way to impress the jury with the idea that it is more important to vindicate the law by the conviction of the accused, if guilty, than it is to acquit him, if innocent.” Lyles v. State, 130 Ga. 294 (5) (60 S. E. 578).

(g) “Whether a judge, by language used in his charge to the jury, violates the provisions of the code by intimating or expressing an opinion as to what has been proved, will be determined in the light of the entire context.” Morse v. State, 10 Ga. App. 61 (2) (72 S. E. 534). See also Everett v. State, 62 Ga. 65 (5) ; Nutzel v. State, 60 Ga. 264 (2).

(7i) “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything dedueible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 [61 S. E. 996]; Strickland v. State, 133 Ga. 76 [65 S. E. 148]; Pyle v. State, 4 Ga. App. 811 [62 S. E. 540].” Cain v. State, 7 Ga. App. 24 (65 S. E. 1069).

({) “In the absence of a written request so to do, it is not error; for the trial judge to fail to charge the law of the theory of a case presented solely by the prisoner’s statement.” Robinson v. State, 114 Ga. 56 (4) (39 S. E. 862). See also Grant v. State, 19 Ga. App. 229 (91 S. E. 338).

U) “A charge torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United tliev stand, divided they fall.” Brown v. Matthews, 79 Ga. 1 (4 S. E. 13) ; Partee v. State, 19 Ga. App. 759 (5, 6) (92 S. E. 306).

Applying the foregoing general principles to the grounds of the motion alleging error in the several excerpts from the charge, and considering all of these excerpts in the light of the entire charge, we find no error in any of these grounds which would authorize the granting of a new trial.

2. The 16th ground of the amended motion for a new trial .complains that the court erred in recharging the jury solely on murder and voluntary manslaughter. According to the note of the presiding judge, “The recharge to the jury was given under these circumstances: .The ' jury had been out for several hours and returned into court, and the judge inquired of the jury if they desired any further instruction on the laws. One of the jury responded- by saying that the jury wished to be recharged on the subject of murder and manslaughter, and the recharge was limited to the request made by the jury.” Under these circumstances there was no error in the judge limiting his recharge to the request made by the jury.

3. There was no error in admitting the evidence of witness Iiix, as complained of in the 18th ground of the motion. The witness was telling what occurred during the progress of the killing, and this evidence was clearly admissible as part of the res geste. Penal Code (1910), §1024.

4. Under the particular facts of this case the admission of the evidence of Dr. Brown, as complained of in the 19th ground of the motion, was not erroneous.

5. Tlie evidence of witness Walters, the admission of which is complained of in the 20th ground of the motion for new trial, was not inadmissible for the reasons urged. “A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper.” Civil Code (1910), § 5873.

6. No error is distinctly alleged in the 21st ground of the motion, and it can not be considered.

7. The 22d ground of the motion shows that the defendant offered as evidence an indictment returned by the grand jury of Franklin County on October 26th, 1915, against Newton Weldon for manslaughter, of date prior to that of the indictment for murder under which the defendant was being tried. The indictment for manslaughter being still undisposed of, there was no error in refusing to admit it in evidence.

8. There was no error in refusing to grant a new trial on account of the alleged newly discovered evidence of Patrick, Holbrook, White, and Slaton, as the evidence of each of these witnesses was cumulative and impeaching in its character; and besides, it appears that each of them ■was subpcenaed as a witness by the accused before the trial, and it also appears that upon the hearing of the motion for new trial the State submitted affidavits directly contradicting that set forth as newly discovered evidence in some of the affidavits of movant. Bowers v. State, 135 Ga. 310 (69 S. E. 536); Watkins v. State, 19 Ga. App. 234 (5) (91 S. E. 284).

9. “An assignment of error in a motion for new trial, that a sentence within the limits fixed by law, is excessive and too harsh under the facts and circumstances of the case, presents no reason for interference by the reviewing court.” McCullough v. State, 11 Ga. App. 612 (6) (76 S. E. 393). See also Truitt v. State, 124 Ga. 657 (52 S. E. 890).

10. The 27th ground of the motion complains that certain clothes worn by the deceased and his brother Tom at the time they were shot, and one of the pistols said to have been used in the homicide were sent out with the jury and allowed to remain with them for their inspection during their deliberations on the case. This was not error; the record showing that these articles were offered in evidence and admitted by the court without objection, and it also appearing that the attention of at least one of the attorneys representing the defendant was directed to the fact that said clothing and pistol were being given to the jury, and that no objection was then raised to sending them out.

Decided November 16, 1917.

Indictment for murder; conviction of manslaughter; from Franklin superior court — Judge Cobb. August 10, 1917.

G. L. Goode, W. A. Stevenson, E. C. Stark, T. J. Shackelford, for plaintiff in error.

A. S. Shelton, solicitor-general, H, H. Chandler, D. T. Davis, W. B. Little, contra.

11. Under the facts of this case there was no error in the judge failing to charge the jury on the question of conspiracy between the deceased and his brothers.

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

Judgment affirmed.

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


author: Jenkins, J. Luke, J.,

text:
    8614.
    WOOD v. FIRST NATIONAL FIRE INSURANCE CO.
    A policy of fire insurance issued in the year 1915, covering a “stock” of intoxicating liquors described as “merchandise,” which under the terms of the policy were required to be kept in a described building within this State, occupied by the owner for “mercantile purposes,” is void as being in furtherance of and directly connected with an act prohibited by law.
    Decided December 11, 1917.
    Action upon insurance policy; from city court of Savannah— Judge Freeman. March 17, 1917.
    On the 13th of August, 1915, the First National Fire Insurance Company, hereafter called the defendant, issued to Isidore Woods, hereafter called the plaintiff, a policy of insurance for the sum of $4,000, on a stock of wines, liquors, beers, cordials, and such other merchandise not more hazardous, “while contained in a brick, metal-roof building occupied for mercantile purposes,” situated in Savannah, Georgia. On the 12th of November, 1915, this building, together with the liquors, were destroyed by fire. The plaintiff duly presented proofs of loss, but the defendant denied liability; and thereupon the plaintiff brought this action. The defendant demurred to the petition, upon the ground that the contract of insurance entered into by it was null and void as ¿gainst the public policy of the State. The court sustained this demurrer, and exception was duly taken by the plaintiff. The defendant also filed an answer in which it set up the illegality of the contract. This answer was demurred to by the plaintiff, and the demurrer overruled, to which ruling the .plaintiff excepted. The court permitted the ease to proceed because of the insurance upon certain musical instruments consisting of two electric pianos and one electric harp, for which the plaintiff recovered; but as to this recovery there is no -exception.

      Osborne, Lawrence & Abrahams, for plaintiff.

      Andersen, Qann, Cann & Walsh, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) While we think the stipulations contained in the policy of insurance attached to the petition clearly indicate that the insured liquors were kept by the plaintiff for the purpose of illegal sale, still, in order to make out a violation of the prohibition law of 1907 (Penal Code of 1910, § 426), it is wholly unnecessary to show for what-purpose the intoxicants were kept at the place of business, the criminal act in such a case being merely the keeping on hand of such_liquors at such a place. Cohen v. State, 7 Ga. App. 5 (65 S. E. 1096). Therefore the only question raised in this case which requires further consideration and discussion is, whether the contract of fire insurance covering the liquors so illegally kept was so closely related to the unlawful act as to be a part of that transaction, and therefore void. It is well settled that where the parties to a contract are in pari delicto, no affirmative relief of any kind will be given to one against the other.

The exact question at issue does not appear ever to have been passed upon by either of the appellate courts of this State. The. decisions of other jurisdictions upon the subject are not entirely harmonious, and from them no exact and uniform rule can be adduced. Some of the courts have held that a policy of insurance, somewhat but not altogether similar to the one here involved, is not impaired by reason of the fact that the property covered by its terms may have been kept for illegal sale. Mechanics’ Ins. Co. v. Hoover Distilling Co., 182 Fed. 590 (105 C. C. A. 128, 31 L. R. A. (N. S.) 873); Erb v. German-American Ins. Co., 98 Iowa, 606 (67 N. W. 583, 40 L. R. A. 845). In many jurisdictions the contrary rule has been adopted. Kelly v. Home &c. Ins. Cos., 97 Mass. 288; Lawrence v. National Fire Ins. Co., 137 Mass. 557; Johnson v. Union Ins. Co., 137 Mass. 555; Carrigan v. Lycoming Fire Ins. Co., 53 Vt. 418 (38 Am. B. 687); 19 Cyc. 636, § 3; Wheeler v. Mutual Reserve Fund Life Assn., 103 Ill. App. 48. In Mechanics Realty &c. Co. v. Leva, 16 Ga. App. 7 (3) (84 S. E. 333), this court said: “An' obligation supported by an independent consideration will be enforced, though indirectly connected with an illegal transaction, where the plaintiff does not require- the aid of the illegal transaction do make out his case.” In that case the early opinion by the Supreme Court of the United States in Armstrong v. Toler, 11 Wheaton, 358 (6 L. ed. 468), rendered by Chief Justice Marshall, is quoted, as follows: “Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. . . But if the promise be entirely disconnected with the illegal act, and is founded on a new consideration, it is not affected by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal' act.” . In Barfield Music House v. Harris, 20 Ga. App. 43 (93 S. E. 403), a rule of law recognized by this court was quoted from 6 B. C. L, 831, as follows: “Even though the parties to an action have been engaged in a transaction either malum in se or prohibited by law, yet if the cause of action between them is disconnected from the illegal act and is founded upon a distinct and collateral consideration, and the plaintiff is not obliged to resort to the illegal contract or transaction in order to maintain the suit, the illegality of the former transaction will not impair or bar the right to maintain the suit. If the contract or obligation does not depend upon or require the enforcement'of the unexecuted provisions of the illegal contract, it will be carried out. Therefore the test is whether the contract sought to be enforced can be separated from the illegal acts or contracts relied upon as avoiding it, and whether the plaintiff requires any aid from or miist in any way rely upon the illegal transaction in order to establish his case.” Applying the rules of law above indicated to the facts of the present ease, it will be observed that by the very terms of the policy sued on it was provided that the owner of the stock of liquors was to be protected against loss by fire only when they were contained in the described storeroom “occupied for mercantile purposes.” The insuran'ce issued in favor of the plaintiff was in the sum of “$4,000 on a stock of wines, liquors, beers, cordials, and such other merchandise not more hazardous, while contained in the brick metal-roofed building, occupied for mercantile purposes, and situated” in Savannah, Georgia, as therein described. Even if it did not manifestly follow. that such a “stock of merchandise” thus to be kept in a public storeroom was for the purpose of sale, still the provision of the policy limiting liability thereunder, except while the liquors were contained in the designated storeroom occupied by the plaintiff for mercantile purposes, absolutely imposes an illegal purpose and design within the express terms of the contract itself. The policy is one of ordinary mercantile insurance. It connot be said that the reference to the liquors as being contained in the mercantile storeroom is merely for identification of the property insured, and for descriptive purposes only. In addition to the provision already quoted, the first clause of the policy stipulates the amount of the insurance granted “on the following described property while located and contained as described herein, and not elsewhere.” Since the subsequent clause provides that the insurance shall be operative while the liquors are in the brick storeroom occupied for mercantile purposes, it can not even be said that the plaintiff, under the terms of the policy sued on, might have converted his mercantile business into a private warehouse by closing up his place of business. Even had this in fact been done, the risk then incurred would not have been that embraced by the express terms of the policy, since it insured the liquors only while contained in a storeroom occupied for mercantile purposes, and not as' a private storage-room or warehouse. Be this as it may, however, .the question is not what might have been', but what was; and since, by.the terms of the policy as actually entered into, insurance was contracted for upon a stock of merchandise consisting of liquors while contained in a storeroom occupied for mercantile purposes, the contract was illegal in its inception and' void ab initio. If, then, by the terms of the policy the parties to the contract agreed that the insured merchandise should be kept in violation of law, can it be said, in the language of Chief Justice Marshall, that the contract is “entirely disconnected with the illegal act?” But if, as we think, the rule adopted by the courts of this State does not require that the contract sued on be “entirely disconnected” with the act done in violation of law, but that the agreement will be enforced even though “indirectly connected” therewith, provided “the plaintiff does not require the aid of the illegal transaction to make out his case,” can it even then be said that the contract is not directly connected with the unlawful act, or that the plaintiff does not require its aid, when by the terms of the policy itself such continued violation of the penal law amounted to an expressed condition of its validity? As was said in the Barfield Music House case, supra, “The test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires any aid from the illegal transaction to establish his ease.” Here, by the terms of .the policy sued on, it was expressly agreed that the property insured was to be kept and maintained in violation of law, and thus it is clear that the compliance with such unlawful agreement and the aid of such illegal transaction is necessary to the establishment of plaintiff’s case. Even in those jurisdictions where the validity of somewhat similar insurance policies have been sustained as not contravening public policy, the courts have laid down legal principles which we think are in entire harmony with the doctrine we now set forth. In Niagara Ins. Co. v. DeGraff, 12 Mich. 124, the policy included, among other things, groceries among which were liquors; and it was contended that the policy was void, because to sustain the policy with liquors included would be insuring an illegal traffic. In sustaining the validity of this policy, the court said: “By insuring his property, the insurance company has no concern with' the use he may make of it, and, as it is susceptible of lawful uses, no one can be held to contract concerning it in an illegal manner unless the contract itself is for a directly illegal purpose. Collateral contracts, in which no illegal design enters, are not affected by an illegal transaction with which they may be remotely connected.” In. Carrigan v. Lycoming Ins. Co., 53 Yt. 418, the court said: “If the purpose of the contract in question had been to protect the assured in the sale of intoxicating liquors, it would have been null; but the greater part of the property insured consisted of goods, insurance upon which was subject to no objection. The contract was legal upon its face, nothing appearing to show that the wines and liquors were intended for illegal sale. . . There was evidence tending to show that he illegally sold them, including those not used in compounding medicines; and the fact may have been that the latter trade was the larger and his main one. If such illegal traffic was the business of the assured, and his legal traffic and transactions with other property a mere cover, ostensibly carried on for the purpose of enabling him to secrete and disguise his iniquity, the purpose of the contract would be to protect him in his illegal'ventures, and it would therefore be void; but if he carried on business, using- alcoholic liquors legitimately in his drug trade, and occasionally sold them in violation of law, we think that, if no illegal design entered into the making of the contract in its inception, it would be so far collateral- to the illegal acts that it would be inconsistent, and in accordance with no well adjudged case, to hold it null.” In the case now before us, it can not be said that the contract was legal upon its face, since not only would it seem to'have been manifest that the stock of merchandise was kept for illegal sale, but furthermore the illegal design as entered into by each of the contracting parties was clearly expressed, in that the intoxicants, under the terms of the policy, were to be kept in the place of business of the insured, used for mercantile purposes; and since this provision is not susceptible of an interpretation that the keeping of the intoxicants was lawful, it follows that the contract itself is on its face made in direct furtherance of an illegal purpose. The facts of the present case appear to us as being so far different from those stated in Phenix Insurance Co. v. Clay, 101 Ga. 331 28 S. E. 853, 65 Am. St. R. 307), that the result properly obtaining in that case can not, under the same rule, follow here. There it was held that “The mere fact that a house is let to and occupied by a lewd person, which, with the knowledge of. the owner, is to be used by her for purposes of prostitution, does not of itself avoid a policy of insurance issued thereon in favor of the owner. The contract of insurance is not so connected with the contract of rental as to prevent, in case of loss, the maintenance of an action on.the policy by the owner.” If, however, in that ease, the policy of insurance had béen expressly conditioned upon the maintenance of the business of prostitution in the house insured, we apprehend that the decision would have been different. Or, if the owner in that case had brought suit against his tenant for the rent of the house, leased for such purpose or with knowledge that it would be so used, a recovery would.not have been allowed. Harris v. Barfield Music House, 18 Ga. App. 444 (89 S. E. 592); Morris v. Terre Haute Brewing Co., 17 Ga. App. 383 (87 S. E. 159). .While it might be said that in the Phenix Insurance Co. case, supra, the issuance of the insurance to the owner of the realty was in a very remote and indirect sense connected with the independent illegal business of the tenant, still, in order to enforce the contract of insurance in that case, the plaintiff was in no wise, even-remotely, compelled to invoke the aid of the acts done by his tenant in violation of law. As was stated by Chief Justice Simmons in that case, “The policy was for a valuable and legal consideration, and for what appears on its face to be a good and lawful purpose. It was made not to protect the business of keeping a lewd house, but to protect the property of the owner of the building.” And further: “The owner could, without violating the policy, use his house for any other and lawful purpose which would not increase the hazard. The contract does not require that the property shall he devoted to any one use [italics ours], and, as it is susceptible of lawful uses, the company can not be held to have contracted concerning it in an unlawful manner unless the contract is itself for an illegal purpose.” ’ Quite different are the facts in the present case. Here it must necessarily be said that the contract of insurance is connected with and grows directly out of the illegal use of the property insured; and since in this case “the contract does require that the property shall be devoted to one use,” and that an illegal one, we think the doctrine laid down in the Phenix Insurance Co. case is in entire harmony with the ruling of the trial judge in sustaining the demurrer- to plaintiff’s petition.

Judgment affirmed.

Wade, C. J., concurs. Lulce, J., dissents.

Luke, J.,

dissenting. I do not agree to the conclusion reached by the majority of my brethren in this case. Hnder the law at the time of the execution of this contract of insurance (1915) a person could have a property right in, and could hold as property-, wines, beers, and liquors. It is my opinion that when the State declares by statute that property may be owned by its citizens, such property may be insured as against loss by fire. In this case it was not the use to which the property might be put that the contract of insurance covered, but the contract was for an indemnity against the loss of the property by fire. In the case of Phenix Insurance Co. v. Clay (supra) the Supreme Court permitted the plaintiff to recover upon a contract of insurance that indemnified the owner of a certain building against loss by fire, where it was admitted that the plaintiff was renting the property with full knowledge that it was to be used for an illegal purpose, to wit, a lewd house. The court in that case held that it was not the use to which the property was put that was covered by the contract, but it was a contract of insurance to pay for the loss of the property if destroyed by fire. What is the difference in the Phenix case and this case ? At the time of the fire the property in both instances was being put to an illegal use. The use to which the property was being put is a mere incident, and should not render illegal a contract of indemnity against its loss by fire.