text:
    9018.
    COX v. THE STATE.
    1. There was no abuse of discretion by the trial judge in refusing to give counsel for defendant a longer time than two hours for argument of the case.
    2. The exception to the charge of the court, that it was argumentative of the State’s case, is not well taken. The charge fully and fairly presented the contentions of the defendant.
    3. There is no merit in the exception to the charge of the court set out in ground 6 of the motion for a new trial. The court fully instructed the jury upon the law of reasonable fears as applied to the defense set up by the accused.
    4. Under the evidence in this case the court did not err in failing to charge the jury upon the subject of involuntary manslaughter. Under no theory was the killing unintentional or involuntary. Neither was the charge erroneous for any of the other reasons assigned in ground ■ 8 of the motion for a new trial.
    3. The excerpt from the charge of the court set out in ground 9 of the motion for a new trial is not subject to the criticism that it “intermingled the law of justifiable homicide and mutual combat.” This excerpt, in connection with the part of the charge immediately following it, correctly stated the law as found in sections 70 and 71 of the Penal Code (1910), and applied it to the defendant’s theory of justifiable homicide.
    6. The evidence authorized the charge on voluntary manslaughter, and the instruction set out in ground 5 of the motion for a new trial is not subject to the exceptions taken.
    7. Grounds 10 and 11 of the motion for a new trial, not having been argued by counsel for plaintiff in error, will be treated as abandoned.
    Decided November 2. —
    Rehearing denied November 17, 1917.
    Indictment for murder; conviction of manslaughter; from Berrien superior court — Judge Thomas'. June 9, 1917.

      J. P. Knight, Hendricks, Mills & Hendricks, E. W. Cox, for plaintiff in error.

      Fondren Mitchell, solicitor-general, H. J. Quincey, J, D. Lovett, J. C. Smith, contra.
   Harwell, J.

Cox was indicted for the murder of I. T. Sealy, • the jury returned a verdict of voluntary manslaughter, the defendant’s motion for a new trial was-overruled, and he excepted. The exceptions taken to the charge of the court, and the other grounds of the motion, and the rulings thereon as shown by the headnotes, need no elaboration, except, perhaps, the grounds referred to in the 1st, 4th, and 6th headnotes .of this decision.

The evidence showed that the killing occurred on December 14, 1916; that the deceased, I. T. Sealy, was a tenant of the defendant,' had become dissatisfied, and had made arrangements to move to a neighboring place; that on the morning of the homicide he and his wife and his young son, J. B. Sealy, had gone to the lot at the place where he lived, for the purpose of moving some fertilizer therefrom; that the defendant Cox, and George Sealy, a brother of-the deceased, were present just outside the lot, at a pile of lumber; that the defendant, óbserving that the deceased and his family were about to move the fertilizer, went into the -lot and objected to their moving it. From this point there is a decided conflict in the evidence offered by the State and that offered by 'the defendant and the defendant’s statement. The sole eyewitnesses to the killing were J. B. Sealy, the young son of the deceased, Mrs. I. T. Sealy, wife of the deceased, and his brother, George Sealy. The two first-named witnesses testified in behalf of the State, and the last in behalf of the defendant. The testimony offered by the State made out a case of murder. It showed, briefly, the following facts: The defendant came into the lot behind Sealy and his wife and son, and asked what they were going to do; the wife replied that they were going to move the fertilizer. The defendant said that if they did, he would have them arrested. The wife replied: “Have us arrested; we don’t care.” Cox then said he would, and, according to the State’s witnesses, turned around, and they thought that he was gone. The next thing they knew, the defendant'grabbed up a hoe, ran up behind the deceased, who was at the time attempting to lift the wagon around, and struck at his head, but missed him; the defendant then struck him on the head with the hoe, inflicting the wound from which he died. Neither one of the Sealys was doing anything to him at the time he struck the deceased. The wife- was engaged in rolling away a block of wood aird was-not looking at the time the blow was struck. The defendant’s statement at the tr-ial tended to make out a case of justifiable homicide, but also we think warranted the inference that he struck the fatal blow in the heat, of passion, after he had disarmed Mrs. Sealy and at a time when no necessity existed to strike. He stated that when he asked them not to move the fertilizer, the wife and the husband both said they would move it or die, and that as he turned, Mrs. Sealy struck him with the hoe; that both of them then attacked him with hoes, and, believing that it was necessary to do so in order to save his own life, he grabbed the hoe from Mrs. Sealy’s hand and struck the deceased with it and killed him. The defendant, in his statement, refers to Mrs. Sealy’s striking him, but, except by the use of the expression, “They had done struck me,” does not indicate very clearly that the deceased ever struck him at all. He said: “I spoke to Mr. Sealy and asked him not to move it, but he said 'I’ll move it or die;’ I turned; as I did Mrs. Sealy struck me and I threw up this arm. There is a scar right there. She was striking me, and I grabbed the hoe, but they had done struck me on the head, and as I got the hoe Mrs. Sealy struck me there the last lick (indicating). With the blood streaming down my face I couldn’t see whether I hit anybody or not, when I made my lick.” The testimony of George Sealy corroborated to some extent the defendant’s statement, but from it we think the inference could be drawn of a mutual, intent to fight. His testimony as to the fight was substantially as follows: Mr. Cox .told the deceased not to move that fertilizer, that if he did he would have them arrested. Then my brother told him he would move it or die. My brother had a hoe in his hand; my brother’s wife had a hoe in her hand. If anything further was said I don’t remember it. My brother and his wife then struck him with hoes on the head and knocked his hat off on the ground. Mr. Henry Cox got hold of a hoe in that fight and drawed it back; I didn’t see anything else — she come in between me and him at that time. I didn’t see the lick start downwards; I didn’t see Mr. Cox hit my brother; I saw him when he hit him; I saw when he hit the lick, and then she come in between me and him. They were fighting. He walked in there and said, 'Mr. Sealy, if you move that fertilizer, I’ll have you arrested.’ Mrs. Sealy said, 'I’ll move it or die.’ That is all that was said. They went to fighting then.”

The record is voluminous, but, taking the evidence as a whole, we think .that it justified the conclusion that the passions of these parties were aroused by the dispute in reference to moving the fertilizer, and that then a general fight ensued between the defendant, on the one hand, the deceased and his wife oh the other. Where there is some evidence of a mutual intention to fight, it is not error for the court to give in charge to the jury the law of voluntary manslaughter. Even though the jury might believe that the deceased and his wife had made an assault on the defendant with hoes, and had attempted his life, still they were authorized to find, from the fact that the defendant had taken the hoe away from the wife of the deceased, and that the left arm of the deceased was broken and useless at the time, that the defendant did not kill to prevent a felony then being attempted on his per-, son, but the jury might havé found that he killed after the personal danger had ended, and that the mortal wound was inflicted in the heat of passion engendered by the previous assault. Evans v. State, 33 Ga. 4; Pierce v. State, 132 Ga. 27, 30 (63 S. E. 792), and cases cited. In addition to this, the testimony of George Sealy, as above shown, clearly indicates that the defendant was engaged in a fight with the deceased and his wife at the time of the homicide, the anger of the participants having been aroused over the dispute concerning the removal of the fertilizer. Eor these reasons we think that the trial judge correctly instructed the jury on the law of voluntary manslaughter. '

The able counsel for the plaintiff in error insist in their brief that the judge should have charged the jury on involuntary manslaughter, citing Lyman v. State, 89 Ga. 337 (15 S. E. 467), where a glass pitcher was the instrument used; Warnack v. State, 3 Ga. App. 590 (60 S. E. 288), where a brake-stick was the instrument used; Farmer v. State, 112 Ga. 80 (37 S. E. 120), where a beer bottle was thrown, and Joiner v. State, 129 Ga. 295 (58 S. E. 859), where the decision does not show the character of the instrument used. Upon examination of these eases and others similar thereto (as Dorsey v. State, 126 Ga. 633, 55 S. E. 479), it will be seen that there the jury were authorized to find either that the weapon used was not necessarily a deadly weapon, or that it was not used in a'manner likely to produce death. This was not such a case. The weapon with which the deadly blow was given in the instant case was a Scoville hoe, with a handle in it. This is thé ordinary farm hoe with an eye in it, through which tbe handle .passes. The testimony, even of one of the defendant’s witnesses, shows it is a deadly weapon. The testimony is hardly needed for this purpose, however. It is common knowledge, among those who know what such a hoe is, that it is a deadly weapon, when used as in this case. The testimony further shows that the deceased was a small man and that at the time of the tragedy he probably did not have the use of his left arm. It had been broken at the elbow-some time before this, and the testimony indicated that ho had very little use of it at the time he was killed. The hoe was wielded by the defendant with such force as to break the handle and to crush the skull of the deceased. Can it be said, under these circumstances, that the killing was involuntary or unintentional? We think not, and hold that the court-did not commit any error in failing to charge the law of involuntary manslaughter.

One of the grounds of the motion for a new trial complains that the court committed error in refusing to give counsel for the defendant three hours for argument, and in limiting them to two hours. Eule 5 of the superior courts (Civil Code of 1910, § 6264) limits counsel in capital felonies to two hours on a side, and further provides that the court may upon proper application, made as provided therein, grant such extension of time as may seem reasonable and proper. The grant of such extension, as will be seen from this rule, is in the discretion of the trial judge, and his discretion will not be controlled unless it is manifestly abused.- In the instant case there is nothing’to indicate any abuse of discretion by the trial judge in refusing to grqnt the extension of time requested.

The trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9032.
    Nasworthy v. The State.
    Decided November 2, 1917.
   Broyles, P. J.

1. When considered in the light of the entire charge the court and the particular facts of the case, the instruction to which exception was taken was not erroneous.

2. The evidence authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for misdemeanor; from Terrell superior court-judge Worrill. 1 June 9, 1917.

B. B. Jones, for plaintiff in error.

B. T: Castellón?, solicitor-general, B. B. Arnold, contra.


author: Bkoyles, P. J.

text:
    9117.
    Barbour v. The State.
    Decided November 2, 1917.
    Accusation of possessing intoxicating liquor; from city court of Savannah — Judge Bourke. August 6, 1917.

      A. A. Lawrence, C. E. Donnelly, for plaintiff in error.

      Walter C. Eartridge, solicitor-general, contra.
   Bkoyles, P. J.

1. Where a single penal statute may be violated in one of several ways not repugnant to one another, the accused may, in an indictment containing a single count, be charged with violating the statute in each and all of the severál ways prohibited in the statute; and in such cases proof of the commission of any one of the acts by which the statute is violated will support a conviction. Hall v. State, 8 Ga. App. 747 (70 S. E. 211); Cooper v. State, 9 Ga. App. 877 (72 S. E. 436); Sanders v. State, 86 Ga. 717 (12 S. E. 1058) ; Grantham v. State, 89 Ga. 121 (14 S. E. 892) ; Langston v. State, 109 Ga. 153 (35 S. E. 166, 779) ; Henderson v. State, 113 Ga. 1148 (39 S. E. 446) ; Hubbard, v. State, 123 Ga. 17 (51 S. E. 11) ; Haley v. State, 124 Ga. 216 (52 S. E. 159); Wharton’s Crim. Pl. & Pr. §§ 161, 162. It follows that where an accusation, based upon the act of the General Assembly of Georgia, approved March 28, 1917, which makes it a misdemeanor for any person “to have, control or possess” in this State spirituous liquors (Acts 1917, Extraordinary Session, pp. 7, 8), charges that the accused did “have, control, and possess” spirituous liquors, it is not necessary for the State to prove that the accused had, controlled, and possessed the liquors; but proof that he had the liquors, or proof that he controlled them, or proof that he possessed them, would be sufficient to support a conviction; and the court did not err in so instructing the jury.

2. While some of the other excerpts from the charge of the court, excepted to, are subject to some slight criticism, none of them, when considered in the light of the entire charge and of the particular facts of the case, requires a reversal of the ease. The charge as a whole was a full, fair, and correct presentation of the contentions of the parties and of the law of the case.

3. The evidence, though circumstantial in its nature, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, J.J., concur.


author: Harwell, J.

text:
    9136.
    Christopher v. The State.
    Decided November 2, 1917.
    Accusation of obstructing legal process; from city court of Brunswick — Judge Krauss. August 10, 1917.

      Frank E. Harris, for plaintiff in error.

      A. E. Qrovatt, solicitor, A. D. Gale, contra.
   Harwell, J.

1. The solicitor of the city court of Brunswick .has the right to appoint an assistant solicitor. Ga. L. 1907, p. 133. It is provided that accusations in that court shall be signed by the prosecuting officer. Ga. L. 1899, pp. 348, 349. The assistant solicitor has' the power to sign such accusations jointly with the' prosecutor.

2. Even though the voluntary act of the solicitor of that court, in entering the government officer’s training school, placed him in either of the conditions specified of ineligibility to office, still such a disqualification operates only from the time the fact “is ascertained and declared by the proper tribunal.” Political Code (1910), § 264 (4).

3. Hence, the solicitor of the city court of Brunswick was a de facto officer until the fact of his disqualification should be “ascertained and declared by the proper tribunal,” and his act in appointing an assistant solicitor during his temporary absence was valid, as the act of an officer de facto. Political Code (1910), § 258. The plea did not allege that his disqualification had been judicially determined. See Channell v. State, 109 Ga. 150 (34 S. E. 353).

4. The right of the solicitor of the city court to hold his office could not be brought in- question by plea in abatement to an accusation drawn by him. The court could not be called upon, in the same proceeding, to try both the right of the solicitor to his office and the guilt of the accused. Bush v. State, 10 Ga. App. 544 (73 S. E. 697).

5. Neither could the eligibility of the assistant solicitor, who was a United States commissioner for the southern district of Georgia, be brought in question by a plea in abatement to an accusation signed by him. Although “persons holding any office of profit or trust under the government.” are declared ineligible by section 258 '(4) of the Political Code, still the' same section provides that the acts of such persons are “valid, as the acts of an officer de facto.” It is not necessary to decide whether the assistant solicitor was disqualified.

6. Eor the foregoing reasons, the judge of the city court properly sustained the demurrer tb the plea.

Judgment affirmed.

Broyles, P. J., and Bloodicorth, J., concur.


text:
    9168.
    Eidson et al. v. The State.
   Broyles, P. J.

1. The following instructions of the court are excepted to: (1) “If you find from the testimony, beyond a reasonable doubt, in the county of Haralson on the day named in the indictment, or any other time within two years before the finding of this bill of indictment, that the defendant, or defendants, Bill Eidson and E. J. Smith, did unlawfully assault A. H. Keener with weapon as described in bill of indictment and attempt to commit a violent injury upon the person of A. H. Keener, then you would be authorized to find the defendant or defendants guilty of the offense of assault, or assault-and battery, as the testimony may show, and the punishment for an assault is as for a misdemeanor.” (2) “You are to find the facts from the testimony submitted on the.trial of the ease. You are not to go outside of the testimony to find the facts. You are the judges of the law and the facts. You are bound by the law as' written and given you in charge by the court. That is the means, and the only means, from which you are to learn the law of the case, just as the testimony which has been submitted to you is the only means from which you are to learn the facts of the ease.” (3) “After taking the law from the court, and the facts from the witnesses, you then determine, what the verdict should be, considering what the law is and what the facts are.” These excerpts from the charge of the court, when considered in connection with the charge as á whole (the court, having'properly instructed the jury in regard to the defendants* statements), did not restrict the jury to the sworn testimony and eliminate from their consideration the defendants’ statements. Jordan v. State, 130 Ga. 406 (5), 408 (60 S. E. 1063), and cases there cited.

Decided November 2, 1917.

2. The following excerpt from the charge was excepted to: “The burden is on the defendants to establish the defense of alibi, by a preponderance of the evidence, under the rules I have called your attention to, and if you find, from a preponderance of the testimony submitted on the trial of the case, that it was impossible for the defendant or defendants, to have been present at the scene of the alleged offense, then you would be ^authorized to find the defendants not guilty of the offense as charged, but should acquit them.” This was not erroneous for the reason assigned, to wit, “because said charge required defendants to prove said defense of alibi by a stronger weight of evidence than is required by the law, which only requires a sufficient amount of evidence to create a doubt ip the minds of the jury.” The judge elsewhere in his charge properly instructed the jury upon the subject of reasonable doubt, and also, immediately following the charge complained of, gave the following instruction: “You may consider the testimony as to an alibi with the other testimony, and, with all the evidence considered together, if it creates within your minds-a reasonable doubt as to the guilt of the accused, it would he your duty to give them the benefit of the doubt and acquit the defendants.” Cochran v. State, 113 Ga. 726 (39 S. E. 332) ; Lucas v. State, 110 Ga. 756 (2) (36 S. E. 87) ; Bone v. State, 102 Ga. 387 (2) (30 S. E. 845).

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for assault and battery; from Haralson superior court — Judge Bartlett. July 18, 1917.

James Beall, M. J. Head, for plaintiffs in error.

J. B. Hutcheson, solicitor-general, contra.


author: Luke, J.

text:
    8413.
    Augusta-Aiken Railway & Electric Corp. v. Hafer.
    Decided November 13, 1917.
    Action for damages; from city court of Richmond county— Judge Black. December 27, 1917.

      Wright & Wright, for plaintiff in error.

      T. F. Harrison, W. H. Fleming, contra.
   Luke, J.

1. The word, “owner,'’ as used in the Civil Code (1910), § 4420, is not synonomous with “landlord,” as the latter word is used in § 3694; and where the owner of land has fully parted with both possession and right of possession by any lawful contract of rental, his liabilities are those prescribed by § 3694. In such a case § 4420 is without application. It is otherwise where the possession or the right of possession is not fully parted with.

2. Until such a landlord is put upon notice that the rented premises are out of repair, he is not liable in damages for a failure to make the necessary repairs. Stack v. Harris, 111 Ga. 149 (36 S. E. 615); Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (38 S. E. 204).

3. The fact that the rented premises consisted of an amusement park, and the further fact that the landlord — a railway company — thereafter advertised the amusements at the park for the sole purpose of increasing the passenger traffic over its line of road leading to the park, do not affect the application of the principles announced above.

4. In view of the foregoing rulings, the evidence did not authorize the charges to the jury of which complaint is made, or any verdict in favor of the plaintiff.

5. The court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

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


author: Jenkins, J.

text:
    8467, 8468.
    LOTT v. BANKS; and vice versa.

    1. Since the act of the General Assembly approved August 21st, 1911 (Acts 1911, p. 149 (3)), where the judge finally passed on the merits of a motion for a new trial and the parties acquiesced in his entertaining it at that time, without any question being then raised to the sufficiency of the filing and approv.al of the grounds of such motion, no question as to these matters can be subsequently entertained by this court; and therefore the motion of defendant in error to strike the order of the lower court approving and certifying the amended motion for new trial, and to dismiss the amended motion, is without merit. But apart from the provisions of the act cited, it has been held that when the judge is not put on his guard to see that dates are correct, or to explain them if incorrect, there is a stronger presumption that a mistake was made in dating a judicial act than that the act was performed on Sunday. Swindle v. Poore, 59 Qa. 336 (2).
    2.. The amended plea setting up payment was-sufficiently exact in that it did not fail to show, when, how, and to whom the alleged payment was made.
    3. Tiie declaration of an agent is not competent evidence against his principal where it does not appear that such declaration was made while engaged in the business of the master or principal, k. Where in a trover suit brought by the vendor under a conditional sale the plaintiff elects to take a judgment within the amount of the indebtedness for the highest proved value of the property between the time of the conversion and the trial, it is error to direct a verdict for plaintiff where under the evidence the value of the property in any lesser amount could he found. ,
    Decided November 13, 1917.
    Trover; from city court of Hall county — Judge Wheeler. January 6, 1917.

      W. N. Oliver, W. M. Johnson, for Lott.

      K. D. Kenyon, for Banks.
   Jenkins, J.

1. The ruling stated in the first headnote does not seem to require elaboration.

2. This was an action in trover by a vendor of personal property under a recorded contract of conditional sale, and against a subsequent purchaser. The defendant- set up, by amendment to his answer, that the original vendee had fully discharged the indebtedness to plaintiff. We think the amended plea was sufficiently exact to meet the objection of plaintiff to its allowance, as contained in his exceptions taken pendente lite and now embodied in his cross-hill of exceptions, and that it did not fail to show when, how, and to whom the alleged payment was made. Thomas v. Siesel, 2 Ga. App. 663 (5) (58 S. E. 1131). As the ease will have to he submitted to a jury for its determination on the facts, we will not express any opinion here as to whether the averments so made were substantiated, or as to whether the fact of agency involved was proved.

3. The seventh ground of the amended motion for a new trial .complains that evidence of the witness I. J. Little was excluded, in which it was proposed to show by him 'that Maness, the agent of plaintiff, had told him that the cow was paid for; The declarations of an agent are admissible against his principal only when made concerning his appointed business and while he is so engaged. The declaration of an agent is not competent evidence against his principal where it does not appear when it was made. Thus, were it to be conceded that the evidence shows that the declaration of Maness pertained to the busines within the scope of his authority, there' being nothing in the exception taken to indicate when the declaration was made, there was no error in excluding the offered testimony. Adams v. Humphreys, 54 Ga. 496; Civil Code (1910), § 3606.

4. Where the title of a plaintiff in a trover suit is held by him as security for purchase-money or other debt, and he elects to take a money verdict, he is entitled to recover either the highest value of the property between the date of the conversion and the date of the trial, without interest or hire, or the value of the properly at the date of the conversion, with interest or hire, subject, however, to the condition that under neither choice can he recover more than the amount of the debt for which the property stands as security. Elder v. Woodruff Hardware Co., 9 Ga. App. 484 (71 S. E. 806); Tuller v. Carter, 59 Ga. 395 (2); Mashburn v. Dannenberg Co., 117 Ga. 567 (15) (44 S. E. 97); O’Neill Manufacturing Co. v. Woodley, 118 Ga. 114 (44 S. E. 980); Young v. Durham, 15 Ga. App. 678 (84 S. E. 165); Moore v. Furstenwerth-Uhl Jewelry Co., 17 Ga. App. 669 (87 S. E. 1097). Where the suit is for the property and not for its value, it is not necessary to prove value, even though it be alleged. White v. White, 71 Ga. 670. But to authorize a money verdict in a trover suit, there must ordinarily be some evidence to show the value of the personal property converted by the defendant. Brooke v. Lowe, 122 Ga. 358 (50 S. E. 146); Citizens Bank v. Shaw, 132 Ga. 771, 777 (65 S. E. 81); Oglesby v. Hanson, 7 Ga. App. 318 (66 S. E. 802). In this ease the plaintiff elected to take a money verdict, and the judgment was taken in accordance with what the able trial judge regarded as the prima facie and undisputed proved value of the property between the time of the conversion and the trial and within the amount of the debt. There was no direct and express evidence showing the value of the property at the date of the conversion, or at any time subsequent thereto up to the date of the trial. The only evidence as to the value of the property disclosed by the evidence was: first, the amount of the original purchase-price as shown by the note, amounting to $50.50; second, the evidence shows that the original vendee, Saddler, sold the cow to the defendant for $16; third, it appears that the defendant subsequently bargained the cow to another party, Morris, for $26.50, and later took her back at the same price. The plaintiff contends that since the latter amount, as fixed by the defendant himself, states the only value arrived at between the date of the conversion and the trial, this was the only value which could have been found by the jury, and as the directed verdict for the amount due on the note was within this amount, it was legal. Defendant contends, since no witness testified as to the value, and since the only evidence going to show the value consisted of proof as to the price in the sales testified to, that evidence is entirely lacking in the required proof of value. His contention is that what property may be sold for is not evidence of its market value. It has been held.a jnumber of times by this court, that, as between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie but not conclusive evidence- of the actual value of the property, and that upon proof of the contract, in the absence of rebutting testimony as to value, the plaintiff was entitled to recover the balance due thereon. See Elder v. Woodruff Hardware Co., Young v. Durham, and Moore v. Furstenwerth-Uhl Jewelry Co., supra; Jordan v. Jenkins, 17 Ga. App. 58 (86 S. E. 278); Elder v. Woodruff Hardware Co., 16 Ga. App. 255 (82 S. E. 268). But, as was said in the decision last cited: “As'between the seller and third persons, the amount stated in the contract of purchase is of no such evidentiary value.” Thus, in the instant case, the questions are: first, would the evidence, if in no wise contradicted, that the defendant while in possession of the property sold it at a named price and afterwards took it back at the same price, furnish sufficient ground as to value.to authorize the directing of a verdict within that amount; and second, if this be true, was there in fact other evidence on this question which the jury might properly have considered? As a general proposition evidence as to the selling price of an article is a circumstance, though not conclusive, upon the question of value. Southern Railway Co. V. Williams, 113 Ga. 335 (38 S. E. 744); Watson v. Loughran, 112 Ga. 837 (38 S. E. 82). Thus, assuming that this evidence was sufficient upon which a verdict might have been based, still, since the evidence of what the defendant may have succeeded in bargaining the property for to another and different person was not in any way conclusive evidence of value as between the plaintiff and defendant in this case, the jury would not have been absolutely bound by the amount so shown, but would have been entitled to exercise their own judgment in determining this question, with the right to consider the nature' of the property involved, together with every other fact and attendant circumstance throwing light upon the subject properly within their knowledge. Eor this reason we think the question as to value should have been submitted to them. See Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220), and the cases therein cited. However, in this particular case, we think that there is in fact other evidence upon the specific question of value itself which the jury would have had the right to consider. There was evidence tending to establish the value at the time of the conversion, as shown by the purchase-price paid for the property by defendant. The property involved is not such as could be called a fluctuating commodity. Does evidence as to its value at the time of the conversion illustrate to any extent its true highest subsequent value up to the time of the trial? In other words, must evidence as to its initial value at the time of conversion be excluded in determining its highest value throughout the entire period, for the reason that a distinct measure of damages obtains when the plaintiff relies solely on the .proved value at the time of conversion? We can see no reason why this should be true, and we think that in determining the highest value of property of this kind, the jury might well have considered the evidence as to value at the time of conversion as well as the evidence relating to a subsequent date in arriving at what the highest value during the entire period really was. “The phrase 'the highest proved value between the conversion and the trial’ does not mean the highest estimate given by any witness as to the value during the period stated, but means the highest value which the jury, from consideration of all the proof, finds that the property was worth at any time during that period, if during the period there was a change in its value.” When one thus elects to claim the highest proved value, lie is simply not limited to the value shown at the time of conversion; neither in a ease of this sort should proof of value at that time, if in evidence, be excluded from the jury in determining what the highest value during the entire period really was. Barnett v. Thompson, 37 Ga. 335, 340.

Judgment reversed on main bill of exceptions; affirmed on cross-bill.

Wade, O. J., and Lulce, J., concur.


text:
    8539.
    Carter v. Seaboard Air-Line Railway.
    Decided November 13, 1917.
    Action for damages; from city court of Savannah — Judge Davis Freeman. February 6, 1917.

      J. S. Harrison, Osborne, Lawrence & Abrahams, for plaintiff.

      Anderson,' Gann, Gann & Walsh, for defendant.
   Luke, J.

Proof that a railroad company ran a shuttle train from the City of Savannah to its railroad shops near by, for the purpose of carrying its employees to and from their work, and that occasionally other persons boarded the train and were carried either to or from the shops without the payment of fare, does not entitle a person who was upon the train and was not an employee to recover for injuries occasioned by a sudden jerk of the train, upon the allegation that “plaintiff ' boarded said train as a passenger, travelling from said shops to Savannah Union Station,” when there was no payment of. fare or fare exacted or knowledge of the presence of the person. Civil Code (1910), § 2715; DeVane v. Atlanta, Birmingham & Atlantia R. Co., 4 Ga. App. 186 (60 S. E. 1079) ; L. & N. R. Co. v. Mottley, 219 U. S. 467 (31 Sup. Ct. 265, 55 L. ed. 297, 34 L. R. A. (N. S.) 671); Purvis V. Atlanta Northern Ry. Co., 136. Ga. 852 (72 S. E. 343); Livsey v. Georgia Ry. & El. Co., 19 Ga. App. 687 (91 S. E. 1074). The-plaintiff failed to prove his case as laid, and it was not error to grant a nonsuit.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    8643.
    POPE v. SEABOARD AIR-LINE RAILWAY.
    1. (a) Ordinarily the only duty which a railway company owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered. Ashworth v. Southern Ry. Go., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592). But failure to exercise ordinary care to prevent the injury to a trespasser after his presence has become known is usually so much akin to wilfulness or wantonness as to create liability on tlie part of the company, where the failure to exercise that degree of care would render it liable. Charleston Railway Co. v. Johnson, 1 Qa. App. 441 (57 S. E. 1064); L. & N. Railroad Co. v. Plunkett, 6 Qa. App. 684 (65 S. E. 695).
    (6) Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks,’ and the duty of exercising such care and diligence does not in such case arise until the presence of the trespasser becomes known. Southern Ry. Co. v. Chatman, 124 Qa. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675) ; Nashville <&c. Ry. Co. v. Priest, 117 Ga. 767 (45 S. E. 35).
    (c) The mere fact that the public may have been accustomed to travel, on foot along a' certain portion of the right of way belonging to a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute the persons so using the track licensees of the company; and, in the absence of the company’s permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser. Southern Ry. Co. v. Barfield, 112 Qa. 181, 184 (37 S. E. 386).

      (d) Where,' however, from the locality, circumstances, and known habits p of the public generally, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then the duty of anticipating the presence of and danger to such trespassers devolves upon the employees of the company operating the train; and upon the discovery of ap person in such peril, ordinary and reasonable care and diligence must be exercised by the company not to injure him. Southern Ry. Co. v. Chatman,' supra.
    (c) Whether or not the locality, the time, and the circumstances of an injury to one using the right of way, and the known habits and frequency of the public in using it, create such a condition as will charge the servants of the company operating the locomotive and'cars with the special duty of looking out for the presence of a trespasser at the time and place of the injury is generally a question for the jury to determine, in the light of all the evidence introduced.. Crawford v. Southern. Ry. Co., 106 Ga. 870 (33 S. E. 826) ; Wright v. Southern Ry. Co., 139 Ga. 448 (77 S. E. 384). See also Gulf Line Railway Co. v. Way, 137 Ga. 109, 110 (72 S. E. 917).

      (f) Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant’s cars, the presumption of negligence does not arise against the defendant, unless it appears that at the time of the injury there was due from the company to the person injured a degree of diligence to prevent such injury. Holland v. Sparks, 92 Ga. 753 (18 S. E. 990). But where it appears from the circumstances of the case that such diligence did devolve upon the company, and that it did owe a duty to anticipate the presence of the trespasser at the time and place of the injury, then, upon proof of the homicide by the company, such presumption of negligence against it does arise. Crawford v. Southern Ry. Co., supra.

      2. The verdict was warranted by the evidence;, and the charge to the jury is not subject to the criticisms made in the exceptions taken.
    Decided November 13, 1917.
    Action for damages; from Dodge superior court — Judge Graham. October 14, 1916.
    This was a suit by the widow of one who was found dead in a mangled condition near the railway track of the defendant. The petition alleged,, that Pope (the deceased), about eleven o’clock on the night of the injury, was walking in an-easterly-direction on the railway track, between the stations of Rhine and Horton in Dodge county; that the .public had long been accustomed so to use this portion of the track with the knowledge and consent of defendant; that Pope suddenly became unconscious, and, falling upon the track, was run over and killed, while lying, thereon; that for a distance of 1100 yards before reaching the place of the accident the track was perfectly straight, and for that distance the man upon it was plainly visible to the engineer of the train; and that although the engineer discovered the deceased upon the track in a helpless condition, he failed to ring the bell or blow the locomotive whistle,, nor did he check or stop the train5 but1 negligently and wantonly ran over and killed the decedent. The defendant ia its answer denied each of these allegations. There was no eyewitness to the homicide. Evidence for the plaintiff went to show that pedestrians frequently used the railway track in going to and from the stations named, of which fact, it could be inferred' from the evidence, the operatives of' the company had knowledge. There was no evidence of any permission from the company authorizing such use of its right of way, and no evidence that employees of the company had knowledge of the presence of the deceased on the track prior to the homicide. Evidence on behalf of the defendant, by the -engineer and the fireman of the train which it was alleged killed the deceased, showed that although they were on the lookout at the time and place of the homicide, with opportunity to see the deceased had he been upon the track as alleged, they did not discover him and did not know of the homicide until the following day.

      J. A. Neese, W. M. Morrison, Eschol Graham, for plaintiff.

      Thomas Eason, for defendant.
   Jenkins, J.

(After stating the foregoing facts.)

It is insisted by the plaintiff that the judge, without any request, should have explained to the jury that when a dead body is found near to a railroad track in a mangled condition, indicating that death'was caused by violence, and no other cause of death is made to appear, and the evidence fails to show that any other person bad an opportunity to do the killing, the presumption thereupon arises that the killing was done by a railroad engine or ear. While it is true that the issue of fact as to whether or not the homicide was occasioned by the defendant corporation may be proved by circumstantial evidence as well as direct testimony (Atlantic & Birmingham Railway Co. v. Clute, 3 Ga. App. 508, 60 S. E. 277; Central Railroad Co. v. Bryant, 89 Ga. 457 (2), 15 S. E. 537; Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (3), 12 S. E. 18), we think that on the issue thus made the burden was upon the plaintiff to show, by either direct or circumstantial evidence, the truth of her contention, and that no presumption arises or can be invoked in her favor, notwithstanding the evidence may have been amply sufficient to authorize the jury to believe the truth of her contention. That they were authorized so to believe in the present case we think is true; and that they could have so found under the charge of the court as given is also true, notwithstanding the fact that the court did not, in his charge, give to the jury the definition of circumstantial evidence and explain its weight and purpose. It is insisted by counsel for plaintiff that the court, without any request, should have given in charge the definition of indirect or circumstantial evidence as embodied in section 5729 of the Civil Code of 1910. It has in fact been repeatedly held by the Supreme Court that on the trial of a criminal case where a conviction depends entirely upon circumstantial evidence, it is the duty of the judge, whether so requested or not, to give in charge to the jury the principles of law by which the weight of the circumstances is to be determined, and under what circumstances a conviction on circumstantial evidence is warranted. Weaver v. State, 135 Ga. 317, 320 (69 S. E. 488). This is a duty which the court owes to the defendant, since section 1010 of Penal Code of 1910 provides that, in order to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis than that of the guilt of the accused. But in the present civil action the charge of the court authorized the jury to find that the homicide was occasioned by the running of defendant’s cars, and stated that in determining this and other issues a preponderance of evidence would be considered sufficient to produce mental conviction. We do not, therefore, think that the plaintiff was injured by the failure of the court to elaborate upon the definition, weight, and purpose of circumstantial evidence, since the doctrine recognized by the Supreme Court in the criminal cases referred to by counsel is intended to protect the defendant, and to restrict rather than to enlarge the probative value of such testimony in criminal cases.

As a general rule, it will not be held to be reversible error, in the absence of a timely and appropriate request, to omit to instruct the jury upon the burden of proof (Small v. Williams, 87 Ga. 682, 13 S. E. 589; Brooks v. Griffin, 10 Ga. App. 497 (5), 73 S. E. 752; Central Railway Co. v. Manchester Mfg. Co., 6 Ga. App. 254, 64 S. E. 1128; Lazenby v. Citizens Bank, 20. Ga. App. 53, 92 S. E. 391, 392), although, if the court does charge the jury upon this subject, it must do so correctly. Cox v. McKinley, 10 Ga. App. 492 (73 S. E. 751). But in a suit for damages against a railway company, upon it being shown that the injury complained of was occasioned by the running of defendant’s cars, it is not ordinarily then incumbent upon the plaintiff to prove the alleged negligence of the defendant by a preponderance of the evidence; but when the cause of the injury thus becomes established, the legal and statutory presumption arises that it was occasioned by the company’s negligence, and in such case the law of such presumption as embraced by section 2780 of the Civil Code of 1910 must be given in charge as a part of the general law of the case, without any request to that effect. Killian v. Georgia Railroad Co., 97 Ga. 727 (3) (25 S. E. 384). Thus, assuming that the evidence pertaining to the use by pedestrians of the portion of the track where the homicide occurred was sufficient to authorize the jury to find that a duty existed on the part of the company to anticipate the presence of persons on the defendant’s property at that point, then we think, under the rules of law stated in the first headnote, that the instruction complained of in ground 3 of the amendment to the motion for 'a new trial, taken by itself, would be erroneous. This portion of the charge is as follows : “While the burden is on the plaintiff to prove her case as alleged, by a preponderance of the evidence, it is a rule of law, that if injury is proven to have resulted to person or property by the operation of a locomotive or ears of a railroad company, the presumption arises, in the absence of evidence to the contrary, that such injury was due to the negligence of such company, or to the negligence of its employees.” In a case where a degree of anticipatory care and prudence was owing by defendant to the deceased, and it is shown that the homicide resulted from the operation of defendant’s cars, the presumption of negligence thereupon arises against the company, whether “evidence to the contrary” is introduced Or not; the purpose of such rebutting testimony being to overcome and not to prevent the arising of such presumption. But the trial judge in the present case charged the jury, in the same connection and immediately following the excerpt from the charge above quoted, as follows: “This presumption, however, is merely prima facie, and may or may not be rebutted by proof; and‘the burden of proof is thereby shifted upon the railroad company to show that such injury was not due to its negligence or the negligence of its employees. In such cases the prima facie presumption would be successfully rebutted by the railroad company whenever it is shown by a preponderance of the evidence that the alleged injury was not due to the negligence of such company or due to the negligence of its employees.” Thus, taking this entire portion of the charge, we think the clear intent and meaning thereof is not subject to -the criticism offered, and that the jury could ■not have been thereby misled. The other objections to the charge as given, as set forth in the motion for new trial, are without merit. The jury were permitted to say whether or not the.duty existed on the part of the defendant of anticipating the presence of deceased at the time and place of the alleged homicide, and, if so, whether or not such duty was met. The testimony permitted a .finding for the defendant upon each of these questions; and the verdict can not, therefore, be disturbed as being contrary to evidence.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


author: Ltjke, J.

text:
    8724.
    Barber v. Atlantic Coast Line Railroad Company.
    Decided November 13, 1917.
    Removal of cause to TJ. S. court; from Grady superior court— Judge Worrill presiding. March 7, 1917.

      Bell & Weathers, Custer & Craioford, for plaintiff.
    Pope & Bennet, Cain & Willie, for defendant.
   Ltjke, J.

1. In a suit by a father.against a railroad company, to recover damages for the homicide of his nine year old son, occasioned by alleged negligence of the railroad company, it was pleaded: “That the said Atlantic Coast Line Railroad Company has injured and damaged your petitioner in the sum of twenty-five thousand ($25,000.00) dollars, as more fully hereinafter appears.” “Petitioner shows that he had. not manumitted or apprenticed the said Roscoe Barber, and that he was entitled to the proceeds of his services for twelve years.” “Petitioner shows that the said Roscoe Barber was capable of earning three dollars per week at the time of his death, that he was in good health, and that his ability to earn money would have increased as he grew older, and the said services for the term of twelve years and until he arrived at the age of 21 years were of the value of three ($3,000.00) dollars.” Held, that the suit will be construed to be a suit for only $3,000, and not removable to the district court of the United States upon diversity of citizenship. 8 R. C. L. 158; Wright v. Smith, 128 Ga. 432 (57 S. E. 684); North American Co. v. Morrison, 178 U. S. 262 (20 Sup. Ct. 869, 44 L. ed. 1061) ; Lawton Co. v. Ross-Keller Co., 33 Okla. 59 (124 Pac. 43, 49 L. R. A. (N. S.) 395) ; Flint v. Southern Ry. Co., 7 Ga. App. 316 (66 S. E. 597). It was therefore error for the court to grant an order of removal.

2. The court did not err in refusing to mark the case in default.

Judgment reversed.

Wade, O. J., and Jerilcins, J., concur.


author: Bloodworth, J.

text:
    8749.
    Nessmith v. Hendry.
   Bloodworth, J.

1. While under the decisions of our courts a sheriff ordinarily has no right to take possession of property in the hands of a claimant after he has accepted a forthcoming bond, yet where property is levied upon and a claim ]s filed, and on a trial of the claim the property is found subject, and thereafter the sheriff does relevy on the property, takes possession, and advertises and sells it, no injury results to the defendant in fi. fa. from this action, and he can not legally complain unless the cost is taxed against him for the second levy and for keeping the property after that levy.

2. It was not error harmful to defendant to admit the testimony complained of in grounds Í, 2, and 4 of the amended motion for new trial.

3. Under the facts of this case the court did not err in admitting the execution with entry of levy thereon, as complained of in ground 3 of the amended motion, nor in refusing to dismiss the levy as complained of in the 6th ground and in the bill of exceptions; the reason urged being that the 'first levy was undisposed of. ■

Decided November 13, 1917.

Affidavit of illegality of execution ; from city court of Nashville — Judge Christian. March 21, 1917.

Hendricks, Mills & Hendricks, for plaintiff in error.

W. D. Buie, contra.

4. Ground 5 of the amended motion presents no issue for consideration by this court, as it is based upon alleged error in admitting evidence, and does not show what objection to its admission, if any, was urged at the trial.

5. When considered in connection with the entire charge of the court, there is no such error in the excerpts therefrom, complained of in the motion for new trial, as to authorize a reversal. Mere inaccuracies of expression, or slight errors, which are not likely to obscure the meaning of the court of mislead the jury, will not authorize this court to set aside a verdict, where the charge is comprehensive and otherwise correct.

6. Under the ruling in paragraph 1 above, there was no error harmful to defendant in the failure of the court to give the requested instruction set out in the 10th ground of the amended motion, for a new trial.

7. It appearing from the record that the second levy was made by express direction of the plaintiff, and that all the cost was taxed against the defendant in the trial court, it is ordered that the cost of 'the second levy and of keeping the horse thereafter be assessed against the plaintiff in execution.

Judgment affirmed, with direction.

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


text:
    9029.
    Craft v. The State.
   Broyles, P. J.

1. A proceeding for bastardy is purely statutory, and, being somewhat penal in its character and procedure, the statutory requirements must be strictly followed. 7 Corpus Juris, 967, § 57.

2. While in many judicatories a .proceeding for bastardy may be commenced by the affidavit of some public officer, in Georgia and in several other States it can be instituted only by the affidavit of the mother of the bastard. 7 Corpus Juris, 972, § 73, note 25.; Park’s Penal Code, § 1331; Walker v. State, 5 Ga. 491; Davis v. State, 58 Ga. 174; Watts v. State, 12 Ga. App. 350 (77 S. E. 206).

3. In the instant case, upon the trial of the defendant for the offense of bastardy, in the city court of Richmond county, the court admitted in evidence the written judgment of the magistrate before whom the bastardy proceedings were instituted. Under the foregoing rulings, the judgment showed upon its face that the magistrate had no jurisdiction of the ease, for the reason that it appeared in the judgment that the affidavit upon -which the proceeding was based was made by one Guy Sturgis, and not by the mother of the bastard. The defendant having timely made this objection to the admission of the- evidence, the court erred in overruling the objection and in admitting the evidence, and thereafter in refusing to grant a new trial.

Decided November 13, 1917.

Accusation, of bastardy; from city court, of Richmond county— Judge Black, July 3, 1917.

Len B. Gillebeau, for plaintiff in error.

W. Inman Curry, solicitor, contra.

Judgment reversed.

Harwell, J., concurs. Bloodworth, J., concurs duWtante.


text:
    9173.
    ELLISON v. THE STATE.
    1. “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party. ”
    2. On the trial of one Charged with murder, where it was not shown, otherwise than by the statement of the accused, that the deceased was the assailant in the fatal encounter, it was not erroneous to refuse a new trial upon newly discovered evidence of threats made by the deceased against the accused", which were not communicated to the accused prior to the homicide.
    3. The evidence authorized the verdict of voluntary manslaughter.
    Decided November 13, 1917.
    Indictment for murder; conviction of manslaughter; from Talbot superior court — Judge Howard. August 4, 1917.
    Charles Ellison was indicted for the murder of his brother, Richard Ellison. It appears, from the evidence, that on the night of the homicide they went to a frolic at the home of Frank Ellison, their kinsman; that the deceased left the frolic before the defendant did, and went to the defendant’s home, where the defendant’s wife was alone; and that the defendant shortly afterward also went to his home. The next time the defendant was seen he reT appeared at the frolic with a. shot-gun in his hand, stated to the crowd there that he had killed Richard, and said that some one had better go and see about it. A certain witness who was also at this frolic and gone from it to the defendant’s home, and there found the body of Richard Ellison on the floor before the hearth, with a shot-gun wound in the breast, and found no one in the room but the defendant’s wife, but on his return with a doctor, an hour later, he found the defendant in the room. He did not find any ax in the room or elsewhere. The defendant, in his statement on the trial, asserted that his brother Richard “had been kinder running over him about his wife;” on a former occasion, when he found Richard at his house, Richard drew a knife on him and put the knife around his throat, and he told Richard to leave and not come back any more; that on the night of the homicide, when he returned from the party, Richard was on the outside of his house; that he (the defendant) went into the house and shut the door, and Richard got the ax, which was on the outside of the porch, and told him to open the door; that, upon his refusal to do so, Richard bulged against the door, broke the door down, and came in with the ax drawn back on his shoulder; that he (the defendant) then reached up in the rack, got his gun, and told Richard to get back; that Richard continued to advance on him, and he fired, not intending to kill, but intending only to prevent Richard from hurting him. In rebuttal of this statement the State produced a witness who testified that the defendant, after the killing, gave him an entirely different account of the homicide, claiming that it was accidental. The jury found the defendant guilty of voluntary manslaughter, and to the overruling of his motion for a new trial he excepted.

      J. H. McGehee, B. Culpepper, for plaintiff in error.

      0. F. McLaughlin, solicitor-general, contra.
   Harwell, J.

(After stating the foregoing facts.)

1. The motion for a new trial complains of the refusal of the court to allow a witness for the State to answer the following question, propounded to him on cross-examination by the defendant’s counsel: “At the time Charles Ellison (the defendant) said he had shot Richard, why did he say he had shot him?” The ground of complaint is that, the State having 'proved by the witness an admission, the defendant was entitled to have the witness give the entire admission and to let it go to the jury in its entirety. Unquestionably, when a confession is given in evidence, it is the right of the defendant to have the whole confession and all the conversation connected therewith. Penal Code (1910), § 1030; Cox v. State, 64 Ga. 375, 414 (37 Am. R. 76), and citations. And it has been held reversible error on the part of the trial judge to admit a part of a defendant’s confession, and exclude the other part. Long v. State, 22 Ga. 40 (1). However, it is equally well established that, “in order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a .pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); McAllister v. State, 7 Ga. App. 541 (4) (67 S. E. 221). In this case it does not appear what answer the witness would have given to this question. It does not appear that the answer of the witness would have shown that the defendant, when he confessed that he killed the deceased, gave any reason at all for killing him. It does not appear whether, had his statement as to his reason for killing his brother, if made, been admitted, it would have benefited or injured the defendant. This is especially true in view of the fact that it was proved that the defendant made contradictory statements as to his reason for the killing. We are not able to determine whether the answer of this, witness would have shown that the defendant, at the time of his confession, gave a reason for the killing which was consistent Avith his statement on the trial, or would have given still another reason, inconsistent therewith. Hence, we are unable to say that the court committed harmful error in refusing to allow the witness to answer the question propounded to him.

2. One of the grounds of the motion for a new trial is based upon newly discovered evidence of threats made by deceased against the accused prior to the fatal encounter. The deceased-had been overheard to remark that, should the defendant “run up on him” when the deceased was-having improper relations with the defendant’s wife, he (the deceased) would “take a chair or something else and kill him.” This threat was uncommunicated to the defendant prior to the homicide. It will be seen that there is no evidence of an assault made on accused bj the deceased. The evidence for the State makes out a case of killing without justification. It is only in the defendant’s statement that the theory of mutual combat or self-defense arises. Hence the uncommunicated threats made by the deceased would not, under several decisions of the Supreme Court, have been admissible in evidence on the trial of the case, and therefore,- when discovered after trial, are not ground for a new trial. See Vaughn v. State, 88 Ga. 731 (16 S. E. 64); Peterson v. State, 50 Ga. 142; Nix v. State, 120 Ga. 162 (47 S. E. 516); Pride v. State, 133 Ga. 438 (2) (66 S. E. 259).

3. ' The two grounds dealt with above are the only grounds of the motion for a new trial other than the general grounds that the verdict was contrary to the evidence, etc. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    8436, 8457.
    MEADOWS v. MASSEE & FELTON LUMBER COMPANY; and vice versa.

    Under the evidence it was not error to grant a nonsuit.
    Decided November 14, 1917.
    Action for damages; from Bibb superior court — Judge Mathews. December 4, 1916.

      Wimberly & Wimberly, Hall & Grice, O. J. Bloch, for plaintiff.

      Hardeman, Jones, Parle & Johnston, Harry S. Strozier, for defendant.
   Luke, J.

Alf Meadows sued the Massee & Felton Lumber Company for damages for personal injuries, alleging substantially as follows: He was employed to assist in hauling logs from the woods of the defendant to a tramroad, and was placed in charge of two log teams and directed to go in certain woods and there haul certain logs; his duties were to "toggle” the logs to the tongue of the cart. The operation of toggling a log is performed thus: A two-wheel timber-cart pulled by steers is driven into position, straddling a log. The steers are unhitched and then re-hitched by means of a chain to the end of the cart tongue, which is then raised to a vertical position; and when the tongue is thus raised, hooks- suspended from the cart drop upon the log at the sides. The steers are thereupon driven forward, pulling the tongue down to a horizontal position, fastening the hooks securely in the log, and at the same time raising the log from the ground. The front end of the log is then tied to the tongue by means of a toggling chain, the purpose of this being to hold the log securely in place while it is being hauled. The plaintiff was engaged in -tying the log to the tongue when he was hurt. While he was doing this, some of the steers hitched to the tongue suddenly ceased pulling, the tongue shot upward, drawing the chain taut and catching his hand between the log and the chain. By reason of the injury thus inflicted, his hand had to be amputated. It was alleged" that the defendant was negligent, in not providing adequate assistance; in not furnishing a longer cart tongue; in furnishing poorly trained and unruly steers; in failing to warn the plaintiff of the danger of a short tongue; and in the deficiency of the number of helpers and of proper steers. TJpon the trial the plaintiff, who was the only witness, testified, among other things: “Nathan Holmes was in charge of that team; he was a good man. Nath was trying to hold the tongue down. I was trying to toggle the cart. Nath was driving the steers. There was no one standing at the head of the team at the time. John-Lewis was trying to help hold the tongue. Nath and John were both on the tongue. Nath was driving, but he stepped back to help hold the tongue down. He left the team, and I reckon that was the reason it gave back; they [the steers] did not give back until he came where I was. There was nobody looking after the steers, nothing more than he [Nathan] was trying to holier at them. I knew these were new steers, and I knew that they were not well broke. I saw the steers give back; that was the reason that the tongue give back. When I hooked the chain round [the log], then the steers give back and let the tongue go. It went clean up, and the men turned it loose, and that caught the hook right through the knuckle and it went through my hand.” At the conclusion of the evidence the court granted a nonsuit, and the plaintiff excepted.

The court did not err in granting a nonsuit. Park’s Annotated Code, §§ 3129 and 3131; Van Dyke v. Menlo Fruit Co., 129 Ca. 532 (59 S. E. 215); Brown v. Rome Machine & Foundry Co., 5 Ga. App. 142 (62 S. E. 720).

Judgment on main MU of exceptions affirmed; cross-Mil dismissed.

Wade, C. J., and J enkins, J., concur.


text:
    8485.
    Ayash v. William Gerst Brewing Company.
   Jenkins, J.

1. This was a suit on open account, brought in the name of “William Gerst Brewing Go., a corporation,” which statement as to plaintiff’s legal entity was made immediately preceding the first numbered paragraph of the petition, and was not referred to by defendant in his answer. There was no plea denying the corporate existence of the plaintiff. On the trial defendant introduced in evidence, without objection on the part of plaintiff, the written contract entered into between plaintiff and defendant, under which the shipments were made, which contract was relevant for another purpose, and which states that the William Gerst Brewing Company “is Wm. Gerst doing business under that firm name.” There was no other evidence relating to the character of the plaintiff’s entity. A verdict was rendered in favor of “the plaintiff,” and judgment was entered in favor of “The William Gerst Brewing Company.” Held: The general rule of law will not ordinarily permit the introduction of evidence without pleadings to authorize it. Hanesley v. Monroe, 97 Ga. 471 (25 S. E. 321). Where suit is brought in the name of a corporation, and there is no plea denying the existence of such a plaintiff, the defendant will not be allowed, over objection of the plaintiff, to submit evidence for the purpose of disproving plaintiff’s entity. 10 Cyc. 1353 (d). And even in a case where documentary evidence containing such proof.is introduced by defendant and admitted without objection from plaintiff, such evidence, if 'relevant and pertinent to the defense actually pleaded by the defendant, will be assumed to have been admitted for its legal and proper purpose, and will not cause the verdict in favor of the corporation to be regarded as illegal or contrary to evidence. Minnesota Lumber Co. v. Sobbs, 122 Ga. 20 (2), 22 (49 S. E. 783).

2. In O’Connell v. State, 5 Ga. App. 234, 235 (62 S. E. 1007), this court said: “We feel no hesitancy in taking cognizance, as a matter of common knowledge, that beer or other liquor of similar potableness which contains as much as four per cent, of alcohol is intoxicating.” Therefore it was error for the court to exclude from, the consideration of the jury the two bottles of “Maritana,” together with the caps and labels thereon, which were introduced in evidence by the defendant, where the label contained the statement: “Contents 12 oz. Alcohol about 4.25%.” These bottles, together with the caps and labels thereon, were identified by both the defendant and J. E. Baker, traveling salesman and manager for plaintiff, as being the same bx'and and kind of goods as a portion of those sued for and shipped by plaintiff to defendant for pui'poses of sale duxdng. the yeax-s 1914 and 1915; and ac-cox’ding to both of these witnesses, there was no substantial variance in the amount' of alcohol contained in this and the other brand so shipped; one of the defenses relied on, by defendant being that the goods shipped to him by the plaintiff, for which this suit , was brought, were malt, alcoholic, and intoxicating liquors, the sale of which was in violation of the penal statutes of the State of Georgia.

3. While the excerpt from the charge of the court, complained of in the third and fourth grounds of the amended motion for new trial, if taken aloné, might tend to mislead the jury, we do not think that this could be the effect when taken in connection with the whole charge.

Decided November 14, 1917.

Complaint; from city court .of Americus — Judge Harper. January 6,1917.

Ellis, Webb & Ellis, for plaintiff in error.

W. A. Dodson, contra.

Judgment reversed.

Wade, O. J., and Luke, J., concur.


author: Wáde, C. J.

text:
    8501.
    DAVIS v. HALL.
    1. The petition set forth a cause of action, and the court erred in sustaining the general demurrer.
    2. The 15th paragraph of the petition, inasmuch as it sought to recover general damages on the ground that the plaintiff was humiliated, mortified, or shocked, was specially demurrable; since, where the injury complained of is not a personal tort, but an injury to property, there can
    ’ be no recovery for mental suffering. Stovall v. Oaverly, 139 Ga. 243 (4), 246 (77 S. E. 29).
    Decided November 14, 1917.
    Action for damages; from Laurens superior court — Judge Kent. January 23, 1917. '

      G. E. Williams, W. T. Townsend, for plaintiff.

      J. 8. Adams, for defendant.
   Wáde, C. J.

Tbe plaintiff brought suit against S. T. Hall for damages, alleging that he had injured her in the sum of $473.50, by reason of the following facts: The defendant was a resident of Laurens county, Georgia, and was the owner of a certain two-story building in the City of Cartersville, Bartow county, Georgia. The plaintiff occupied a storeroom on the ground floor of said building, as a tenant of the defendant, at. the time of the injuries complained of. During the continuance of her tenancy the building was provided with an automatic fire-protection system, consisting of pipes running throughout all portions thereof, and connected with the water-pipes of the City of Cartersville hy means of a valve. According to the plan of said protection system, the pipes were to be filled with air at all times (except in case of actual fire), with sufficient resulting pressure on the valve connecting the system with the city waterworks to prevent water from flowing into the pipes. On top of said pipes, at intervals of about ten feet, “sprinkler heads” were fitted, which “heads” were closed with a substance that would melt “at about 165 degrees of heat,” and when said substance melted the sprinkler heads would open, the air in the pipes throughout the building would escape, and water would then enter said pipes and be forced out into the building wherever the sprinkler heads were open. 'Said system was so constructed that when the same was in order, and the water from the city waterworks flowed into the pipes thereof, a gong located outside of the building would automatically give an alarm, “the same being thus constructed for the purpose of warning the occupants of said building, and others, in case of actual fire or flood.” The system was so constructed that the water, after entering the pipes thereof, could be “cut off,” and thus the unnecessary flow of water into the building (after an actual fire had been extinguished) could be prevented. -At the time of the injuries complained of, the plaintiff had in her • storeroom in said building a stock of goods of a value alleged, which goods were described generally) besides the usual fixtures for a store of that character; and she was engaged in the sale of merchandise at retail. “On the 20th day of November, 1914, without any warning to petitioner, one of said sprinkler heads above the toilet over petitioner’s said store, and about fifteen feet back from the front thereof, came open, the water began to pour in great quantities into the said store of petitioner from nearly all parts of the ceiling thereof, and continued to pour therein for a period of one and a half or two hours, until the water became some six inches in depth, causing a great portion of petitioner’s goods to become greatly injured and damaged, as hereinafter more fully set out.” “Petitioner had no control over ány portion of said building, except said storeroom No. 104; She had nothing to do with keeping in repair or looking after said system; said Hall had and held general supervision of said building, and especially of said system, subject to the rights of the various tenants in said storeroom, offices,” etc. She was forced to suspend business and procure' help, at a price stated, in removing a large portion of her goods to a place of safety. By reason of the facts set forth sh,e had been “greatly humiliated, mortified, and shocked,” and “her stock of goods was specially damaged, as thereafter set forth in her petition, the amount of dam ages for each article or thing being therein set forth in detail. The defendant was negligent in the following particulars: “ (a) In not having the pipes of said system filled with air, and especially at the time of the commission of the wrongs and injuries herein complained of; (&) in having the pipes of said system filled with water; (c) in allowing said water to flood the store of petitioner for one and a half or two hours, when the same might have been cut off in two minutes; (d) in failing to have said gong connected so as to give petitioner warning of the coming water.” Wherefore she prayed for general damages amounting to $473.50. She amended her petition by alleging that it was the duty of the defendant to keep the water-pipes in the building in repair, so as to protect her stock of goods from leakage therefrom, but he had negligently and carelessly allowed said pipes to become leaky, to her injury and damage as set out in her original petition; that at the time of the injuries complained of the defendant negligently allowed the gong, before referred to, to be removed and disconnected, and “at said time the same failed to give the alarm to petitioner;” that at the time of the injuries the water-pipes were filled with water, and not with air; “that the plaintiff knew nothing-about how to cut off the water from said sytsem, and that the defendant kept an agent in charge of said building, whose duty it was to supervise the same and protect the various tenants from injury,” but “said agent was -careless, negligent, and incompetent, and knew nothing about said system, and that said Hall [the defendant] knew that said agent knew nothing about said system.” The defendant demurred generally, upon the grounds, (1) that no cause of action was set forth; (2) that the alleged injuries were “too remote to be the subject-matter of a legitimate cause for the recovery of damages.” He specially demurred (3) to the allegation that the plaintiff was “humiliated, mortified, and shocked,” and to the allegation of special damages as to various items of personal property, because the petition did not sufficiently show that the defendant was responsible for the loss of such property, or that the same was a total loss; and (4) because the alleged acts of negligence were not attributable to the conduct of the defendant, and it was not alleged that he was “responsible for the appliances therein referred to not being in perfect order.”

The main question in this case is whether the general demurrer was properly sustained. In our opinion, the petition set forth a cause of action, and the trial court erred in holding to the contrary and dismissing the suit.

It is the duty of a landlord to keep the rented premises in repair (Civil Code, § 3699); but ordinarily, before he is liable in damages for a failure to keep the premises in repair (where he has parted with possession), notice of the defective condition of the premises must, of course, be brought home to him. See Ocean Steamship Co. v. Hamilton, 112 Ga. 903 (38 S. E. 204); Stack v. Harris, 111 Ga. 149 (36 S. E. 615); Roach v. LeGree, 18 Ga. App. 250, 251 (89 S. E, 167); Alexander v. Owens, 18 Ga. App. 326 (89 S. E. 437). It is, however, well settled that where a landlord retains a qualified possession of ¿nd a general supervision over the rented premises, by placing an agent in charge thereof, no notice from the tenant is required. See Guthman v, Castleberry, 49 Ga. 272 (1); White v. Montgomery, 58 Ga. 204; Monahan v. National Realty Go., 4 Ga. App. 680 (62 S. E. 127); Florence v. Northcutt, 145 Ga. 265 (88 S. E. 933). It will be noted that the petition alleges that the plaintiff occupied a storeroom which she rented from the defendant, located on the ground floor of the building; and that it was from a defective sprinkler head in the automomatic fire-protection system, in the second story immediately above plaintiff’s store, that the water came which damaged the goods. The water thus flooded the store for one and a half or two hours, although it might have been cut off in two minutes by proper diligence on the part of the agent in charge, or by the plaintiff if she had known where or how to turn it off. According to the allegations, the plaintiff had no control over the operation of the fire-protection system, but to the contrary the defendant retained possession of the building, by placing in charge thereof an agent who had general supervision over the entire premises, and whose duty it was to look after the fire-protection system. It will be further observed from the allegations of' the petition that the fire-protection system was so constructed that the sprinkler heads were closed with a substance or composition which would melt “at about 165 degrees of heat,” thereby automatically causing them to open when exposed to heat of this intensity, allowing the air in the pipes throughout the entire building to escape, and the water from the city waterworks system would then enter the pipes and be forced out into said building, through the open .sprinkler head; and that there was a gong located outside of the building and so connected with the fire-protection system that when the pipes from any cause became filled with water (as on this particular occasion) the same would automatically sound an alarm, the purpose of which was to warn the occupants of the building, and others, by giving notice of the presence of water in the pipes on account of an actual fire or for 'some other reason. The petition clearly shows that there was no fire on the particular occasion when the damage complained of occurred, but that the flow of water into the pipes and out through the open sprinkler heads into plaintiff’s storeroom was occasioned by the defective • condition of the sprinkler heads; and that the-failure to arrest the flow was caused by the defective gong, and the negligence of the defendant’s agent in not cutting off the water, which could have been accomplished in two minutes, and the resulting damage thus prevented almost if not entirely. The allegations, if true, are sufficient to charge the defendant with notice of the defective con-' dition of the fire-protection system, which caused the damage to plaintiff’s merchandise; and we can not hold, on demurrer, that the facts alleged in the petition do not state a cause of action.

Taking the petition as a whole the .plaintiff clearly alleged that she could not have prevented by the exercise of ordinary care the damage resulting to her from the flow of water through the defective apparatus, as she had no knowledge of its construction or operation, and had reason to rely upon the diligence of the defendant through his agent in maintaining the same in proper condition and in protecting her from any defects therein.

The plaintiff alleged “that her stock of goods was specially damaged,” and gave in detail the articles or things alleged to have been damaged and the amount of damage she claimed on each of said articles or things. Construing this paragraph in connection with the entire petition, how and in what manner her stock of goods was “specially damaged” may be clearly ascertained, and the allegations as made sufficiently indicate the nature and character of the injuries sued for, and the amount thereof, to withstand the particular special demurrer that the petition did not show “that the defendant was responsible for their loss, nor that the same was a total loss.’” Clearly no. total loss was intended to be or was alleged.

The 2d headnote needs no elaboration. Except in the particular there pointed out, the petition was not open to the precise criticism made in any of the grounds of the special demurrer.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    8558.
    WIMBERLY v. OCMULGEE GUANO COMPANY.
    1. While it is true that the principal debt stated as such in a promissory-note, and the amount of attorney’s fees agreed thereby to be paid, both constitute an aggregate principal debt, and where "both are sued for, and the gross sum exceeds one hundred dollars, a judgment for any portion thereof in a justice’s court is void for want of jurisdiction (Ashworth V. Harper, 95 Ga. 660, 22 S. B. 670; Almand v. Almand, 95 Ga. 204, 22 S. E. 213; Peeples v. Strickland, 101 Ga. 829, 29 S. E. 22; Morgan V. Kiser, 105 Ga. 104, 31 S. E. 45), yet where the justice’s court summons is silent as to giving the ten days notice of intention to sue for attorney’s fees, as is now provided for as a condition precedent to their recovery by section 4252 of the Civil Code of 1910, the suit can not be treated as claiming attorney’s fees, and the justice’s court has jurisdiction of the cause if the amount of the stated principal sued for be within one hundred dollars, and can render legal judgment therefor, with interest. DeLamater v. Martin, 117 Ga. 139 (43 S. E. 459) ; Godfree v. Brooks, 126 Ga. 627 (55 S. E. 938) ; MacDonald V. Ware, 17 Ga. App. 450 (87-S. E. 679). Prior to the enactment of the statute now of force, requiring the giving of notice as to attorney’s fees as a condition preceden;; to their recovery, the rule was different, Hill v. Haas, 73 Ga. 122. Thus, it was not error for the court, in a money-rule proceeding, to admit in evidence the justice’s court executions each for $100 principal, besides interest and attorney’s fees, where it was also shown that; the summons from the justice’s court in which they were obtained failed to state the giving of- the statutory notice for attorney’s fees, and where each of the executions had entered thereon the following: “The attorney’s fees shown in within fi. fa. not having been sued for, the same are hereby disclaimed and written off.” Sháhan v. Myers, 130 Ga. 724 (61 S. E. 702) ; Smith v. Knowles, 12 Ga. App. 715 (78 S. E. 264) ; Latimer v. Sweat, 125 Ga. 475 (54 S. E. 673).
    2. The lien of a common-law judgment binds the property of the defendant from its date, while the lien of a distress warrant, upon property other than crops raised on the rented premises, attaches^ only from the date of its levy. The lien given to landlords for supplies, etc., furnished to their tenants in the making of crop's can be foreclosed only on such crops of the year in which the advances are made, and a ff. fa. issued under such a foreclosure can not be levied upon or claim other property. The award of the fund as made by the trial judge was- in accordance with law.
    Decided November 14, 1917.
    Money rule; from Bleckley superior court — Judge Graham. January 12, 1917.

      Minter Wimberly, G. A. Weddington, for plaintiff in error.

      Marion Turner, contra.
   Jenkins, J.

In DeLamater v. Martin, supra, Mr. Justice Candler says: “At the time of bringing -the suit the plaintiff had not given the notice required by the act of 1900, and therefore he could in no event have recovered attorney’s fees in this action. It is clear that, under the ruling in the case last cited [Pickett v. Smith, 95 Ga. 757, 22 S. E. 669], he had the right to sue for the principal debt alone. It is true that in the summons first issued he apparently sued for an amount beyond the jurisdiction of the justice’s court, but as a matter of fact, not having given the requisite notice of his intention to sue for that amount, he in reality sued for less, and his suit was within the jurisdiction of the justice’s court.” In the case of Godfree v. Brooks, supra, Mr. Justice ' Atkinson, in discussing the DeLamater case, says: “In that ease the question was as to the right of the plaintiff to amend by alleging an omission to give the notice, the court holding that, with the amendment in, the court had jurisdiction. We go one step further and hold that, because the condition was precedent, the court had jurisdiction without amendment.” In the instant ease, although the summons apparently included a specific claim for attorney’s fees, still, since the condition precedent for their recovery is not made to appear, the suit must be taken as in fact embracing no such claim, and the entering up of a void judgment for the fees which were not sued for, in reality and in a legal sense, would not affect the validity of the judgment had for the amount of principal and interest sued for and within the jurisdiction of the court.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


author: . Jenkins, J.

text:
    8583.
    TAYLOR v. GEORGIA LOAN & TRUST CO. et al.

    1. An assignment of error on the grant of a nonsuit, viz.: “To this order, ruling, and judgment, granting a nonsuit in said cause, plaintiff then and there excepted, and now excepts and assigns the same as error, for the reason that the ruling of the court is contrary to law and contrary to the evidence, the plaintiff having fully carried the burden in said case,” presents the question as to whether the evidence was sufficient to require the case to be submitted to the jury. Randolph v. Brunswioh do. Railroad, Go., 120 Ga. 969 (2) (48 8. E. 396) ; Fargason V. Ford, 119 Ga. 343 (46 S. E. 431). The motion to dismiss is therefore without merit.
    2. The plaintiff not having failed to establish a prima facie case as laid, it was error to grant a nonsuit. Civil Code (1910), § 5492; Ray v. Green, 113 Ga. 920 (39 S. E. 470); Garrett V. Morris, 104 Ga. 88 (30 S. E. 685); Pendleton v. Atlantia Lumber Go., 3 Ga. App. 714 (60 S. E. 377); Moore V. Dixie Fire Insurance Go., 19 Ga. App. 800, 804 (92 S. E. 302).-
    Decided November 14, 1917.
    Action for money had and received; from city court of Nashville — Judge Christian. February 28, 1917.
    Suit was brought by Hattie Taylor. The allegations of her petition, briefly stated, were as follows: P. D. Lewis is the duly and legally qualified administrator on the estate of Thomas S. Taylor, late of Berrien county, Georgia. As such administrator he declines to prosecute this suit, and has duly assigned the claim herein sued on to petitioner, the widow of Thomas S. Taylor, deceased, and therefore a distributee of said estate, in order that she may prosecute this suit in her own name. A copy of the assignment is attached to the petition as an exhibit. The Georgia Loan & Trust Company is a corporation of the City of Macon, Bibb county, Georgia. R. A. Hendricks, doing business in the name of Hendricks, Mills & Hendricks, is a resident of Berrien county, Georgia. On the first day of September, 1909, Thomas S. Taylor executed and delivered his three promissory notes to the Georgia Loan & Trust Co., for the sum of $1000 each, payable five years after date, together with five coupons attached to each note, representing the annual interest on said indebtedness. In order to secure these notes, Thomas S. Taylor executed and delivered to the Georgia Loan & Trust Company a security deed to land described in the petition. Thomas S. T'aylor departed this life during the year 1913, long before the maturity of said notes. By the terms of the deed it was provided that in the event the said Thomas S. Taylor defaulted in the prompt payment of either one of the interest coupons or principal notes, or insurance premiums, or failed to pay the taxes promptly assessed against the property therein- described, it should immediately become the right and power of the holder of said notes to declare all of said indebtedness then and there due, and to proceed to collect the same at law or to exercise the power of sale contained in said deed. Default having been made in the payment of the interest due, on the 1st day of October, 1913, the Georgia Loan & Trust Co., by its agent and attorney at law, E. A. Hendricks, then doing business in the name of Hendricks & Hendricks, of Nashville, Ga., proceeded to advertise in the Nashville Herald the lands described, offering the same for public sale before the court-house door in Berrien county, Georgia, on the first Tuesday in December, 1913; said advertisement and sale being made under and by virtue of the-power of sale contained in said deed. At the time of exercising the power of sale the Georgia Loan & Trust Co. claimed that the said Thomas S. Taylor was indebted to it in the sum of $3,247, for which sum the advertisement was had and the sale made for the purpose of cancelling said indebtedness. On December 2, 1913, before the court-house door in Berrien county, the premises were offered for sale at pub-lic outcry, after being duly advertised for thirty days, under and by virtue of the power of sale in the security deed, and were knocked off to John A. Gaskins for the sum of $3,631. In pursuance of said sale, the Georgia Loan & Trust Co. caused to be executed and delivered to John A. Gaskins a deed to the premises, which was recorded on Janaary 16, 1914, in Book 36, page 72. The total sum of $3,631 was paid by Gaskins to E. A. Hendricks for and in behalf of the Georgia Loan & Trust Co. The difference in the indebtedness due by Thomas S. Taylor to the Georgia Loan & Trust Co. and the amount that said lands sold for under the power of sale is the sum of $384, which sum the plaintiff is entitled to receive for the payment of debts and for- distribution among the heirs of said estate, it being the overplus above thé indebtedness of said Taylor to the Georgia Loan & Trust Co. at the time of making the sale. The plaintiff has demanded this sum of the defendants, and payment of it has been refused. There now remains in the hands of the defendants, E. A. Hendricks and the-Georgia Loan & Trust Co., the sum of $384 now owing and due to the estate of Thomas S. Taylor, deceased, which they fail and refusp to pay over to petitioner, she being the legal representative of the estate of Thomas S. Taylor in the collection of this particular claim. It is necessary to collect said $384 for the purpose of paying the indebtedness of the said Thomas S. Taylor and making distribution among his heirs. In the power of sale before referred to, the Georgia Loan & Trust Co. agreed, in the event of sale of said premises under said power, that the proceeds of said sale would be applied first to the payment of said debt, interest, and expenses of the proceeding, and the remainder, if any, to the said Thomas S. Taylor, or his legal representative. The Georgia Loan & Trust Co. and E. A. Hendricks have jointly appropriated to their own use said $384, and failed and refused to account to the estate for said amount in accordance' with the terms of said power of sale contained in said deed. The plaintiff prays that she may recover of the defendants the sum of $384 principal, with interest at seven per cent, per annum since the 2d' day of December, 1913.
    The defendants, after filing a demurrer to the petition, which was overruled, filed an answer in which they either denied, or alleged that for the want of sufficient information they could neither admit nor deny, the allegations of the petition.

      William Story, W. B. Smith, for plaintiff.

      W. D. Buie, Hendricks, Mills & Hendricks, for defendants.
   . Jenkins, J.

(After stating the foregoing facts.) Aside from the motion to dismiss the bill of exceptions, which is disposed of by the ruling stated in the first headnote, the only question made by the record is whether or not the court below erred in granting a nonsuit, upon the theory that the plaintiff had failed to make out a prima facie case on the cause of action as laid. Hnder section 4003 of the Civil Code of 1910, if the administrator for any cause declines to place any claim in suit, he may assign the same to a distributee, who may at his own expense prosecute the claim the proceeds if recovered, after paying expenses, to be distributed by the administrator. We think the evidence for plaintiff established, prima facie, her case as laid; and since it sustained each of the material allegations contained in the petition, the jury would have been authorized to find in her favor. The award of a nonsuit was therefore erroneous. Objection was made to the introduction by plaintiff of the official files of the’ newspapers containing the advertisement for the sale of the land, upon the ground that only certified copies thereof were admissible; and it is contended that, if the judge reached the conclusion that this original testimony was illegal, he was authorized to reverse his previous ruling admitting it, by granting a nonsuit.' Since, however, the original newspapers containing the advertisements as contained in the official file were legal and competent evidence for the purpose of showing the contents of the advertisement, we find no merit in this contention. Bond v. Central Bank of Georgia, 2 Ga. 92 (8); Barrett v. Butler, 54 Ga. 581 (2); Schley v. Lyon, 6 Ga. 530 (6).

Judgment reversed.

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