text:
    8763.
    JACKSON v. FREEMAN, receiver.
    On the trial of an action by which the receiver of an insolvent national bank sought to collect from the defendant, as owner of certain stock in the bank, an assessment for payment of debts of the bank, and to which the defendant pleaded that he was not the owner of the stock, the following facts appeared from uncontradicted evidence: Before the bank became insolvent the defendant sold this stock, received the purchase price, and delivered to the purchaser the stock-certificate, with a duly executed power of attorney in blank on the back of the certificate, to be filled in by the latter, the blank being left because the purchaser stated that his wife might want it in her name and he requested an opportunity to consult her and see whether he wanted it put in her name or not. The person who thus purchased the stock as an individual was the cashier of the back, and had charge of its stock-book, and was the officer whose duty it was to make all transfers of stock on its books, and the defendant, on delivery of the certificate,, directed him, as cashier, to transfer this stock on the books, and he promised to do so. He testified that whatever transfer was made was “to be made at once, completed at once.” He neglected to make the transfer on the books, and the certificate, with the power of attorney in .blank, remained in his possession. The defendant did not know or suspect until after the bank had become insolvent that the transfer had not been made on the books, and at the time of the sale of the stock he ha‘d no knowledge or intimation that the bank was insolvent or in a failing condition. Held: Under the facts in evidence, the defendant was not subject to the assessment, and the court erred in directing a verdict against him.
    Decided August 3, 1917.
    Action on stock assessment; from Walker superior court—Judge Wright. February 22, 1917.
    This was a suit by the receiver of a national bank to collect an assessment on the capital stock of the bank, it being alleged that at the time of the appointment of the receiver it appeared on the books of the bank that the defendant was the holder of a certain number of shares of its capital stock; that the comptroller of the currency, in order to pay the debts of the bank, ordered an assessment on all its shareholders of $75 for each share of the capital stock owned by them, and that the receiver had given the defendant timely written notice of the levy of the assessment. The defendant refused to pay the assessment, denying that he was the owner of the stock which stood in his name on the hooks of the bank. On the trial it appeared, from undisputed testimony, that the defendant had been the holder of a certificate representing ten shares of' the capital stock of the bank, and that prior to two months before the appointment of a receiver for the hank he sold and delivered this certificate to S. A. Hunt Jr., the cashier of the bank; that though this sale was to Hunt in his private capacity, Hunt, at the time of the sale and delivery, was requested, as cashier of the bank, to transfer the certificate upon the books of the bank, but that this transfer had never been made; and that at the time of the sale the defendant had no reason to believe that the bank was insolvent, or was about to become so.

      Earl Jackson, B. M. W.. Glenn, Maddox & Boyal, for plaintiff in error, cited:
    7 Corpus Juris, 771, 772; Whitney v. Butler, 118 U. S. 655; Earle v. Carson, 107 Fed. 639 (46 C. C. A. 498, 60 60 L. R. A. 266), aff. 188 U. S. 42; Snyder v. Foster, 73 Fed. 136, 142, 143 (19 C. C. A. 406); Young v. McKay, 50 Fed. 394; Hayes v. Shoemaker, 39 Fed. 912; Matteson v. Dent, 176 U. S. 521, 531; Briggs v. Spaulding, 141 U. S. 132; McDonald v. Dewey, 134 Fed. 528 (67 C. C. A. 408); 202 U. S. 510, 520, 521; Earle v. Coyle, 95 Fed. 99, aff. 97 Fed. 410 (38 C. C. A. 226); Hayes v. Yawger, 39 Fed. 912; Cox v. Elmendorf, 97 Tenn. 518 (37 S. W. 387); Foster v. Bross, 120 Mich. 1 (79 N W. 696); Fowler v. Crouse, 175 Fed. 646 (99 C. C. A. 200); 202 U. S. 510; Vandergriff v. Rich Hill Bank, 163 Fed 823 (90 C. C. A. 129); Kimball v. Apsey, 164 Fed. 830; Rev. Stat. U. S., § 5139; Richmond v. Irons, 121 U. S. 27.

      Rosser & Shaw, contra, cited:

      Freeman v. Jackson, 146 Ga. 55 (90 S. E. 467); Simmons v. Freeman, 146 Ga. 118 (90 S. E. 965).
   Bboyles, P. J.

(After stating the foregoing facts.) When

this case was before the Supreme Court (Freeman v. Jackson, 146 Ga. 55, 90 S. E. 467), under the evidence as disclosed by the record it was held that the direction of a verdict for the defendant was erroneous. We have carefully examined the original record on file in the office of the clerk of the Supreme Court, and we find that in several material respects the evidence contained in that record is different from that contained in the record now before this court. In the record before the Supreme Court the only evidence as to who was the proper bank official to transfer stock on the books of the bank was the following testimony of Jackson, the defendant, and Hunt, the cashier of the bank, respectively. Jackson testified: “I thought Mr. Hunt was the proper party to transfer the stock on the books of the bank. I thought so'at the time and I think so yet.” Hunt, the cashier, upon this question gave the following testimony: “It was the duty of the cashier and president, or vice-president, in the absence of the president, to transfer stock when sold. . . It was the president’s and the cashier’s duty to transfer stock on the books of the bank. New stock would have to be issued and necessarily have to be signed by the cashier and the president.” Moreover, the evidence in the Supreme Court record did hot definitely show that when Jackson delivered the certificate of stock to Hunt, the purchaser, Hunt was directed, as the cashier of the bank, to make the transfer upon the books of the bank. The only evidence on that question was the following testimony of Jackson: “I delivered the certificate to Mr. S. A. Hunt, the purchaser, who was then the cashier of the bank, and told him to transfer it on the bank books.”

In the record in the instant ease the testimony upon these points was as follows: Thurman, the bookkeeper of the bank, testified: “When transfers of stock were made, it was Mr. Hunt’s duty to make those transfers. I mean S. A. Hunt Jr., who at the time was cashier of the First National Bank of LaFayette.” S. A. Hunt Jr. testified, that he was acting as cashier of the bank at the time it was closed by the bank-examiner; that he had been serving in that capacity about ten years; also: “It was a part of my duties to look after the transfer of stock on the books of the bank.” “Some time prior to the closing of the bank I purchased ten shares of stock from Mr. T. A. Jackson, represented by one of the certificates shown on the books of the bank. The date of that purchase was April 29, 1913; that was nearly two months prior to the closing of.the bank. I paid him in cash for that stock, and he delivered the certificate to me and signed the transfer in blank.' That is the form of the transfer that was on the back of that certificate, and it was signed by T. A. Jackson, and that stock certificate was delivered to me, and 1 paid him in cash for it, and, at the same time he delivered it to me, he made a request of me, as the cashier of the First National Bank of LaFayette, to transfer that stock on the books of the bank, and at that time Mr. Jackson made a request of me, as the cashier of the bank, to transfer that stock on the books of the bank. It was my duty, as cashier of the bank, to make those transfers, and, as cashier, I had charge of and kept these stock-books, and all the transfers of stock that were made were made and signed by me, as cashier of the bank. That stock'was never transferred on the books,—this particular ten shares of stock that I purchased from Mr. Jackson. I guess it was my fault. It came about in .this manner: Mr. Jackson and myself had been on a trade for several days about this stock, and when he started to transfer the stock, he started to write my name in it, and I told him that probably my wife might want it in her name, and to wait until I could see about that, and I put the stock certificate in my pocket, and the next day I changed clothes and the stock certificate was left in my pocket, and my wife took the papers out and put them in my trunk, and it just escaped my memory. It was through an inadvertence of mine that the transfer was not made, and through no fault of Mr. Jackson. I didn’t tell Mr. Jackson that the transfer had not been made,—never thought of it; didn’t come to my attention until after the bank was closed. Frequently in the transfer.of stock it is merely signed in blank. It frequently happens in banks, as well as in other corporations, that stock is not immediately transferred where sold by one party to another; in the form of the assignment the person to whom it is assigned is not put in there. All the bank demanded was the signature of the person in whose name the stock certificate was standing, and I did not require the name of the person to whom it was transferred; that was frequently left blank. That was a bona fide transfer between myself and Mr. Jackson as to the sale of this stock. . . At the time I received the stock certificate it was purposely left blank, because I did not know at that time whether my wife would become the purchaser or me. He started to write my name, and the certificate will show how he put the letter ‘S’ there, and I stopped him. . . Mr. Jackson had nothing to do with any of ■the books of the bank, and at the time he delivered the stock to me he gave it to me and says, ‘You can make the transfer,’—says ‘I will leave that blank, and you can make the transfer on the books;’ and I told him I would make the transfer, but before doing so I merely requested an opportunity to consult my wife and . see whether I wanted to put it in her name or not, but the transfer .was to be made at once, completed at once; and Mr. Jackson at that time told me that I could fill in there whichever name I wanted to, and make the transfer accordingly. Mr. Jackson just stated to me, ‘When you determine that, you can make the transfer.”’ The defendant, Jackson, substantially corroborated the above evidence of Hunt, the cashier, and testified: “When I was discussing the question of the transfer of the stock with Mr.- Hunt I told him, as cashier of the bank, to do that. He had been making all those transfers. He was the proper person to do that. . . - I had no knowledge, or intimation, or suspicion that the transfer had not been made on the books of the bank, not until after, the bank was closed.”

In the case made by the record before the Supreme Court that court decided that it did not come within the ruling in the case of Whitney v. Butler, 118 U. S. 655 (7 Sup. Ct. 61, 30 L. ed. 266), which was as follows: “A, an owner of shares in the capital stock of a national bank, employed a broker and auctioneer to sell them by public auction. They were bid off by B, who paid the auctioneer for them, and received from him the certificate of stock, with a power of attorney for transfer duly executed in blank! The auctioneer paid the purchase-money to A. B was employed by the president of the bank to make this purchase for a customer of the bank, who had made a deposit in the bank for the purpose, and he delivered the certificate and the power of attorney to the president, and'received from the bank the money for the purchase. No formal transfer of the stock was made on the transfer-book of the bank. Shortly afterwards the bank became insolvent, and eventually went into the hands of a receiver, who made an assessment on the stockholders under the provisions of Rev. Stat. § 5205 [U. S. Comp. St. 1913, § 9767], to make up the deficiency in the capital. Until after the stoppage A had no knowledge as to the purchaser, or as to the neglect to formally transfer the stock, and no reason to suppose that the transfer had not been made.” And it was there held, that “the responsibility of A ceased upon the surrender of the certificate to the bank, and the delivery to its president of a power of attorney sufficient to effect, and intended to effect, as the president knew, a transfer of the stock on the books of the bank.”

In our judgment, however, the facts as disclosed by the record now before this court bring this case, in principle, up to the case referred to. In that case the certificate was surrendered to the president of the bank, accompanied by a power of attorney, which would have enabled the officers of the bank to make the transfer on the books, and a demand that this be done. In the instant case the certificate was delivered to the cashier of the bank by the shareholder in person, and accordingly no power of attorney was needed, as the shareholder signed the transfer which was on the back of ■ the certificate, and expressly authorized the cashier of the bank to write the name of the purchaser in the space left blank in the transfer for that purpose, and furthermore the cashier had authority, and was expressly directed, to transfer this certificate upon the books of the bank. In the Whitney case the stock was bought, not for the bank itself, but for a customer of the bank. In the instant case, likewise, the stock was not bought for the bank, but was bought by the cáshier thereof for himself individually. In both eases the stock certificate was delivered to an officer of the bank, and it was, so signed and arranged that he had the power and authority to fill in the name of the purchaser in the certificate, and to transfer the certificate upon the books of the bank. In both cases, at the time of the delivery of the stock to the bank official, he was requested as such official to make the proper transfer of the stock upon the books. In both cases the seller of the stock ha.d,. made a bona fide sale of it and had done all that could be .reason-, ably required of him to see that the proper transfer was made, ¡upon, the books of the bank. In neither case did the defendant have any: “reason to suppose that the transfer had not been made.” In the instant case the certificate was delivered to Hunt in his dual capacity as its purchaser and as cashier of the bank, and at the time of the delivery he, as cashier of the bank, was.instructed to transfer the stock upon the books of the bank, and as cashier of the bank he ; promised to do so. In our opinion the certificate was, in contemplation of law, delivered to the bank itself when it was delivered to Hunt, accompanied by the instruction to transfer it, as cashier . of the bank, upon the books of the bank. The undisputed evidence was that Hunt was the only officer of the bank whose duty it was to make such transfers. It seems to us that Jackson, like the defendants in the Whitney ease, supra, had done all that he could to . have the transfer put upon the books of the bank, and that his responsibility ceased upon the surrender of the certificate to the bank through Hunt, its cashier,, accompanied with the demand that Hunt, as cashier of the bank, transfer the stock upon the books of the bank.

Upon the second trial of this case there was no uncertainty, as the Supreme Court intimated there was upon the first trial, as to what person had purchased the stock from Jackson, and as to whose name it should have been transferred in. The undisputed evidence in the record before us is that Hunt, and not Mrs. Hunt, had bought and paid for the stock, and that the stock was delivered to Hunt himself, and that Hunt, as the cashier of the bank, Was - officially instructed to enter the transfer of the stock upon the bank’s books, and that it was his duty to do so immediately. Hunt had authority, and contracted with Jackson, to fill in the blank, in the transfer certificate, by entering therein either Mis name or that of Mrs. Hunt. -The uncontradicted testimony was that it was Hunt’s duty, and not Jackson’s, to see that this was done. '•

The undisputed evidence was that the sale of this stock was a bona fide and unconditional sale to Hunt. Mrs. Hunt was not a party to the purchase and was not known in the transaction. The mere fact that Hunt stopped Jackson from writing his (Hunt’s) name in the transfer, stating that he wanted to wait until he could see his wife and find out whether she wanted the stock put in her name, is insufficient, when taken in connection with all the other facts of the transaction, to relieve Hunt from the duty of making the transfer on the bank’s books, or to make Jackson liable for Hunt’s negligence. The record further disclosing that Hunt’s wife did not request that the stock be put in her name, Hunt should have filled in the blank with his own name, he being the purchaser of the stock, and should have promptly put the transfer upon the books. He was the bona fide holder and owner of the stock, and, although he bought the stock personally, he had simultaneously been instructed, as cashier of the bank, to transfer it on the books of the bank, and, since he was the only officer of the bank whose duty it was to make such transfer, he, as such officer, knew that he himself, and not his wife, had bought the stock, and he therefore officially knew that it should be transferred to him-on the books, and not to his wife, and he knew this at the time he was instructed to transfer the stock.

We are clearly of the opinion that Hunt was the person liable for the assessment on this stock, and not Jackson. It therefore follows that the court erred in directing a verdict for the plaintiff.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8864.
    FARMERS & MERCHANTS BANK OF BREWTON v. BRANTLEY et al.

    The admissions in the plea, as to the note sued on, were not such as would entitle the defendant to the opening and conclusion of the argument; and the error in allowing the defendant to open and conclude requires a new trial.
    Decided August 3, 1917.
    Complaint; from city court of Dublin—Judge Flynt. April 14, 1917.

      Larsen & Crockett, for plaintiff. J. S. Adams, for defendants. .
   Broyles, P. J.

To entitle the defendant to the substantive and valuable right of opening and concluding the argument in a case, he must, before the introduction of any evidence, clearly and unequivocally in his written plea admit such a prima facie case in favor of the plaintiff as will entitle the latter to recover without the introduction of any evidence whatsoever. The admission, must be unequivocal and not merely inferential. Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363 (58 S. E. 222); Wall v. Wall, 15 Ga. App. 156 (82 S. E. 791); Central of Georgia Ry. Co. v. Morgan, 110 Ga. 168 (35 S. E. 345); Culver v. Wood, 138 Ga. 60 (2) (74 S. E. 790); Hendricks v. Lott, 143 Ga. 647 (85 S. E. 843); Roberson v. Weaver, 145 Ga. 626, 631 (89 S. E. 769). In an action upon a promissory note, to entitle the defendant to the opening and conclusion, he must, before the plaintiff has introduced any evidence, admit in-his written plea the execution of the note sued upon and that the plaintiff is the legal holder thereof. Montgomery v. Hunt, 93 Ga. 438 (21 S. E. 59); Levens v. Smith, 102 Ga. 480 (31 S. E. 104); Southern Mutual Association v. Perry, 103 Ga. 800 (30 S. E. 658); Swanson v. Cravens, 105 Ga. 471 (30 S. E. 642); Whitaker v. Arnold, 110 Ga. 857 (36 S. E. 231); Walker v. Bryant, 112 Ga. 412, 414 (37 S. E. 749). In the instant case, which was a suit upon a promissory note, the defendant, before the introduction of any évidence, admitted in his wfitten plea the execution of the note sued upon, but he did not therein directly,or unequivocally admit that the plaintiff was the owner or legal holder of the note, or had title thereto. It is true that the plea admitted that the plaintiff was the payee of the note and had obtained possession of it; but, for aught that the plea shows, the plaintiff may have sold and indorsed the note to some other person before the suit was brought. The plea fails to admit that at the time of the bringing of the suit the title to the note was in the plaintiff. It follows that the court erred in allowing the defendant the opening and conclusion of the argument. This error rendered the further proceedings in the case nugatory.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    8881.
    Interstate Chemical Corporation v. Slade & Treadwell.
    Decided August 3, 1917.
    Rehearing denied September 25, 1917.
    Attachment; from city court of Macon—Judge Mathews. March 27, ■ 1917. ■

      Minter Wimberly, Jesse Harris, for plaintiff in error.

      Hardeman, Jones, Parle é Johnsion, contra.
   Broyles, P. J.

1. The' court erred in admitting in evidence, over timely and appropriate objections of the defendant, certain letters written by the defendant to a brokerage Arm which at the time of the writing of the letters had no connection with the plaintiff brokerage Arm.-

2. The plaintiffs contended that under section 3587 of the Civil Code of 1910 they were entitled to commissions on all goods sold through them to the defendant and accepted by the latter, irrespective of whether the goods were ever delivered. On the other hand, it was the defendant’s contention that it had a special contract with the plaintiffs, under which the latter were to receive commisions on such goods only as were delivered to the former. There was evidence to support each of these contentions, and it was not clear what was the actual understanding and intention of the parties in this respect. This question, therefore, should have been submitted to the jury, and the court erred in directing a verdict in favor of the plaintiffs.

Judgment reversed.

JenlUns and Bloodworth, J.J., concur.


text:
    8900.
    OUTLAW v. PARK LIVE STOCK COMPANY.
    The court did not err in rejecting the oral testimony offered to vary the terms of the written contract which was the basis of the suit; or in striking the amended plea which set up fraud in the procurement of the note.
    Decided August 3, 1917.
    Trover; from city court of Nashville—Judge Christian. February 13, 1917.
    W. D. Buie, for plaintiff in error. H. L. Jaclcson, contra. ~
   Broyles, P. J.

This was a suit in trover, based upon a promisr sory note given for the purchase price of a mule. A plea of failure of consideration, based on fraud in the procurement of the note, was filed. While the general rule is well settled, that fraud in the procurement of a contract renders it invalid, jret in a suit.where the basis of recovery is a promissory note given for the purchase price of a mule, and it is recited in the instrument that the purchaser bought the animal “after a full inspection of the same, which I have received in good order,” and “I have purchased the said described property on my own judgment, and without any warranty express or implied and without any representations whatever, which are not fully set forth in this note,” and the only representations in the note, as to the mule, were that it was “one black mare mule about six years old, about 35 hands high, weight 3084 lbs., fresh shipped,” a plea setting up fraud in the procurement of the note, which does not allege that such representations were untrue, but which in substance states that the fraud consisted of express false representations by the seller, made at the time of the sale, and known by him at the time to be untrue, that the animal was sound and healthy, was not a good plea in law, since it was expressly stipulated in the written contract, signed by the purchaser, that no express or implied warranties or representations as to the animal sold thereunder were made. There was no allegation in the plea that any trick or artifice had been employed to induce the defendant to sign the note. This written contract was therefore a valid one and binding on the purchaser, and it was not error for the court to repel oral evidence, offered by the defendant, which varied and contradicted its plain, unambiguous terms. Nor was it error for the court to strike the entire amended plea of the defendant, on the ground that under the note which was the foundation of the suit it could.not be sustained.

In Mizell Live Stock Co. v. Banks, 10 Ga. App. 362 (73 S. E. 410), relied on by counsel for the plaintiff in error, the written contract itself, as construed by this court, contained an express warranty that the animal in that case was “about eight years old,” and the plea of the defendant alleged that in reality the animal was from fifteen to sixteen years of age; and it was there held that the plea of fraud in the procurement of the note was accordingly good. It was distinctly held in that case, however, that under the written contract, “except as to the fact that the mare was about eight years old, every other express warranty as to its kind or quality was excluded, as well as all implied warranties as to the soundness of the horse, etc.”

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: George, J.

text:
    7933.
    MITCHELL v. THE STATE.
    1. The act of 1915 (Ga. L. 1915, Extraordinary Session, p. 99, § 16) made it a penal offense, punishable as a misdemeanor, for any person to re- . ceive, accept delivery of, possess, or have in possession at one time, or ■within any périod of thirty consecutive days, whether in one or more places or whether ir original packages or otherwise, more than two quarts of spirituous liquors or other intoxicating or prohibited liquors.
    2. “A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” Penal Code (1910), § 81. Criminal intent is a necessary element in.the commission of any of the offenses njade penal by the prohibition act of 1915; but criminal intent in such connection is simply the intention to do the act which the legislature has prohibited.
    3. The evidence demanded a verdict of guilty, and the exception to the charge of the court is without merit.
    Decided September 13, 1917.
    Accusation of misdemeanor; from city court of Thomasville— Judge W. H. Hammond. October 3, 1916.

      W. j. Hammond, Titus, Dehle & Hopkins, O. E. Hay, for plaintiff in error. II. J. MacIntyre, solicitor, contra.
   George, J.

Bob Mitchell was tried and convicted on an accusation which charged that he did, in Thomas county, on the second day of September, 1916, unlawfully receive and accept delivery of, and possess and have in his possession at one time and in a period of thirty consecutive days, more than two quarts of whisky. The accused at first denied that the whisky was in his possession, but later admitted that he had in his possession, on the date alleged in the indictment, more than two quarts of whisky. The whisky in his possession consisted of about 48 half-pints. He contended that under an agreement with J. C. Tyrus, who sometimes acted as a deputy sheriff, he brought the whisky from the State of Florida into the county, for the purpose of delivering it to residents of the county who were engaged in violating the prohibition law, and then reporting to Tyrus the' names of those to whom he had delivered it, in order that they might be arrested. Tyrus was sworn as a witness, and testified that he had been acting as special deputy sheriff for several months; He had been sworn in as such deputy sheriff, but had given no bond. On September 2 the accused reported to Tyrus .that several negroes had requested him (the accused) to get them more than the amount of whisky allowed by law. Tyrus told the accused to go after this whisky for the people who wanted him to get it, and deliver it to them as soon as he got back, and then to report to the witness. The accused had not succeeded in making a delivery of the whisky before he was arrested and lodged in jail. It was the intention of the witness to arrest those to whom the accused delivered the whisky, after he had delivered it and had furnished the necessary information to the witness. The witness further testified that he had not notified the sheriff concerning his purpose, but intended to do so. The sheriff disclaimed any knowledge of the scheme, but admitted that Tyrus had acted on several occasions as his deputy, and further admitted that the .accused had helped him to locate certain violators of the prohibition laws, and had furnished information which led to their arrest and conviction.

It is the contention of the plaintiff in error that the act of 1915 (Georgia Laws, Extraordinary Session 1915, p. -90) did not make it a penal offense for any person to receive, accept delivery of, possess, or have in possession, at one time or within any period of thirty consecutive days, more than two quarts of spirituous liquors or intoxicating liquors or other prohibited liquors, but merely made the possession of more than two quarts of such liquors prima facie evidence of an intent to sell, and to keep on hand for the purpose of sale, whisky and other prohibited liquors. In this we do not agree with the plaintiff in error. Section 16 of the act declares that “it shall be unlawful for any person to receive, accept delivery of/possess, or have in possession, at any one time, or within a period of thirty consecutive days, . . more than two quarts of spirituous liquors” or other prohibited liquors. Section 29 of the act provides that “any person, firm, or corporation violating any provision of this act shall be guilty of a misdemeanor and punished as for a misdemeanor, as prescribed in section 1065 of the Penal Code of 1910.” Under the act, the possession at any one time, or within any period of thirty consecutive days, of more than two quarts of liquor is in itself a misdemeanor, and is also prima facie evidence of the further offenses defined in the act.

• Section 31 of the Penal Code (1910) declares: “A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” It is insisted that intent to violate the law was wholly rebutted by the evidence in this record. This position is founded upon a misapprehension of the law. The defendant intended to commit the act which the law prohibits. He knew the law, and brought the whisky into Thomas county for the express purpose of inducing others to violate the law, or for the purpose of assisting them in its violation. He was enmeshed in the net spread by himself. The law does not countenance the commission of a crime even though the purpose be the apprehension of others engaged in the same criminal conduct. There is crime enough already, and it is no part of the duty of an officer of the law to aid or abet another in the commission of crime. If, to accomplish a great good, it is ever permissible to do a wrong, certainly the ministers of the law are not to be encouraged in their efforts to induce others to commit crime, even though they may intend the arrest and punishment of their unsuspecting victims. The sheriff of the- county washed his hands of the whole transaction, and he is -to be commended for his act. Perhaps the jury that convicted the defendant, and the judge who sentenced him, believed that his whole defense was but another scheme to evade the plain letter of the prohibition laws of the State. The defendant’s contentions were substantiated by the acting deputy sheriff, but this does not relieve the defendant or, in our view, mitigate his offense,- Let the judgment be

Affirmed.

Wade, C. J., and Luhe, J., concur.


author: Luke, J.

text:
    8077.
    GEORGIA RAILWAY AND POWER COMPANY v. JOHNS.
    The evidence did not authorize a recovery of damages on account of the flooding of the plaintiff’s farm, alleged to have been caused by water from the defendant’s dams.
    Decided September 13, 1917.
    Action for damages; from Stephens superior court—Judge J. B. Jones. June 10, 1916.

      Colquitt & Conyers, Claude Bond, for plaintiff in error.
    W. A. Charters, Fefmór Barrett, contra.
   Luke, J.

The plaintiff’s petition makes the following case: The defendant company owns and operates a hydro-electric generating plant on' Tallulah river. Four miles below this plant the Tallulah and Chattooga rivers unite and form the Tugaloo. Four miles down the Tugaloo, eight miles from the defendant’s plant, the plaintiff owns find operates a farm, bordering on the river banks. The company maintains a dam about 100 feet high and about 500 feet long across Tallulah river, where the electric plant is located, which dam forms a storage basin for water, averaging 50 feet deep, 400 yards wide, and three miles long. Eight miles above the plant and across the same river the company has erected another dam of substantially the same dimensions and for the same purpose, but which forms a much larger basin. On October 14 and 15, 1914, heavy rains fell in that community, all the streams were swollen, the plaintiff’s farm was overflowed and his crops, of the value of $1,500, destroyed. That part of the petition designed to show specifically wherein the defendant is liable for the plaintiff’s losses proceeds as follows: “9. The company obstructed the natural flow of the waters of Tallulah river on said date above the farm of petitioner by holding in its dams aforesaid the water collected in said Tallulah river by reason of said rainfall, and collected, stored, and held said waters until about noon of October 15, 1914. 10. The rainfall had been large, and froni noon to three o’clock p. m., October 15, 1914, the river passing the farm of petitioner was filling from the waters of Chattooga river and other streams flowing into Tallulah river below the plant of the company, and into Tugaloo river above the farm of petitioner. 11. About noon, October 15, 1914, the company released from its dams an immense volume of water which it had obstructed in said river, and stored from the rains of the 12 hours previous, and this vast quantity of water rushed down the precipitous Tallulah falls along Tallulah river, and, reaching Tugaloo river, already swollen, quickly overflowed its banks, and the waters of Tugaloo, by reason of this obstructed and stored water suddenly turned loose, overflowed the crops of petitioner,” and thereby caused the injuries specifically set forth.

The brief of the evidence covers 92 pages, approximately 35,000 words, and embraces the testimony of 24 witnesses. -Its nature needs to be indicated here, however, only as to those particulars wherein it is insufficient to prove the plaintiff’s case as laid in his petition, or to support the verdict for $250 which the jury returned in his favor. The plaintiff had operated his farm for 15 years, but the evidence is silent as to how long the company had maintained its dams. The dimensions of the dam at the company’s plant were substantially as alleged in the plaintiff’s petition, except that along the top of the cement dam there was a line of flash-boards, containing a series of gates 6 feet high and 25 feet long and virtually increasing the height of the dam 6 feet if the gates remained closed, but not so if they were opened, because water in the basin could not flow over the top of the cement dam until it had also risen above the top of the closed gates or passed through the open gates. Six of these gates were automatic, the others stationary; that is to say, six of them were so constructed as to be opened by the pressure of high water against them, and to be closed by their own mechanism upon such pressure being removed. They were also designed to open with varying degrees of pressure, or heights of water in the basin, so that all would not open at once, and, after one or more had opened, the others would not open at all unless the surface of the water in the basin continued to rise in spite of the increased flow allowed by the open gate or gates. All the gates were of modern and improved designs. On the day of. the plaintiff’s loss only five of these gates worked automatically, the other being out of order and remaining stationary. The company’s other dam, known as the Mathis dam, 8 miles up-stream from the dam above described, was constructed on a somewhat different plan. The Mathis dam had no gates on top, but had two open sluice gates at the "bottom, in the bed of the river, and other sluice gates higher up in and through the cement dam, the two open gates at the bottom being more than ample to allow the pássage of the river’s normal flow. Aside from the maintenance and construction of these dams, which were necessary to the operation of the business, the company did nothing either to cause or to prevent the injuries for which the plaintiff sues.

As to the volume and duration of the rainfall on the dates in question, the witnesses do not agree; but these apparent conflicts are easily reconciled by reason of the fact that the different witnesses testify as to different times and places, some of the places being several miles apart. All the witnesses, however, do agree upon the one important fact that there was an unusually heavy rainfall, covering all of the watersheds of the Tallulah and the ■Chattooga rivers on the night of October 14, and on the morning of October 15, the latter being the date of the plaintiff’s injuries. As to the physical facts in point relating directly to the ■dams and the water behind them, there is no material conflict in the-evidence. At 7 o’clock in the morning of October 15 the water stood approximately three feet below the top of the cement part of the dam at the company’s plant, nine feet below the top of the flash-boards; by noon it had risen sufficiently to open one of the automatic gates; during the next hour it had risen sufficiently to open the other four automatic gates that were then in good order; and,, an hour or so later, it was not only pouring through the five open gates, but was also flowing over the top of all the stationary gates, including the so-called automatic gate that failed to open. It was five o’clock p. m. before the water in this basin ceased to rise, the inflow from heavy rains -up-stream being greater in volume than the outpour through and over the gates. At the Mathis dam, where the bottom sluice gates were open, alloying more than a normal flow of the stream, and having no effect whatever on the stream except to partially check the flood, the water in the basin increased from a depth of three to a depth of thirty feet during the same day. The plaintiff testified, that about 2 o’clock p. m., October 15, he observed the waters of the Tugaloo overflowing its banks where that river passed his farm; that the water continued to rise so fast that before darkness' came his farm was overflowed to a depth of 15 feet on the lowest lands; that the water rose from about 2 p. m. to about sunset at a rate between two and three feet to the hour; that ho had many times seen the Tugaloo overflow its banks, both before and since the construction of the company’s dams, but he had never before seen the water rise with such rapidity, or apparently come in waves or cease for a while and then commence to rise again as it did on this occasion, though on other occasions he had seen it rise to a depth of 15 or 20 feet over the low places on the same farm. The normal depth of the river by his farm was from one to three feet, the width of the river-bed 75 yards, and the width of his overflowed bottom lands about a half mile. Other parts of the record material to an understanding of the case will appear in the opinion.

Under the evidence, the jury were not authorized to find that the proximate cause of the plaintiffs injuries was the conduct of the defendant as set out in the petition. Nor were they- authorized to find that any wrongful act of omission or commission on the part of the defendant was the proximate cause of such injuries. In the first place, from the evidence before us, it is impossible to say, or to estimate with any degree of certainty, what proportion of the plaintiff’s injuries was caused proximately and directly by the swollen waters of the Chattooga river, or by the turbulent tributaries which empty into the Tallulah below the dam in question, or even by the Tugaloo’s own tributaries that rushed into the flood above the plaintiff’s farm, or by any of the waters passing the defendant’s dams. Necessarily all of these waters, including that which poured over and through the gates on the defendant’s dam, had united to form the damaging flood before any of them reached the plaintiff’s farm. But can it be said that the same flood would not have destroyed the same crops had the dams never been constructed? If so, why? The plaintiff himself testifies that before the Tallulah was dammed, substantially similar floods did come, upon the same farm, from the same streams, following like downpours of rain. But be that as it may, the sole effect of the cement part of the dam, as shown by the evidence, was to withhold perr manently from the lower stream and from the plaintiff’s farm a volume of water equal to at least a three-foot depth over the entire basin behind the dam. What the cement part of the dam checked it permanently held; thereby to that extent positively reducing the volume of the water below and diminishing what otherwise would have been the height'of the flood at the plaintiff’s farm. The only water shown by the evidence to have been checked in its natural course and to have been thereafter allowed to pass on with the flood is that which was held for a short while only by the flash-boards above the top of the cement dam, and which then passed through the open gates, even this being due to an unusual rainfall, rather than to the conduct of the defendant. What water passed over the closed gates because of the great inflow from heavy rains above the dam and in spite of five open gates, together with what in its natural course would have passed over if five of the gates had not been open, is not in any sense chargeable to the defendant company, but stands upon the same footing as the waters of the Chattooga, the tributaries of the Tallulah below the dam, and of the Tugaloo above the plaintiff’s farm. As for the Mathis dam, there is no evidence that it had any effect upon the situation other than to check and keep checking the excessive flow of Tallulah’s swollen stream at that point, holding it to a steadier and more nearly normal flow than it otherwise would have had. The evidence concentrates upon the other dam. But, taking all of the evidence with reference to both dams, it is impossible to say on which side their influence was the greater, whether in increasing or in decreasing the depth of the overflow that destroyed the plaintiff’s crops. Let us grant, however, what the evidence does not show, and say, for the sake of the argument, that the total effect of the two dams was to increase slightly the depth of the overflow on the plaintiff’s farm. Does it follow that the plaintiff’s damage would have been any less if the depth of that overflow had been 14 feet, or only 12 or 13 feet, instead of approximately 15 feet, as the evidence shows that it actually was? We think the difference would be a trifle, if any; and certainly there is no evidence in the record to show that such a difference in the depth of the overflow might have made a material difference in the extent of the damage done. For these reasons, it must be held that neither the defendant’s conduct nor its property, nor both together, constituted the proximate cause of the plaintiff’s injuries.

While the judgment denying the motion for a new trial must be reversed for the reasons pointed out, yet it should not be amiss to point out also what appears to be a.material variance between the theory of the case laid in the petition and the theory of the case sought to be shown by the evidence. In the petition there is no intimation that the defendant was guilty of any faulty construction, improper maintenance, or negligent operation of its dams in the regular course of its business. The wrongful act charged in the plaintiff’s petition is a positive and deliberate misuse by the defendant of its property, to the plaintiff’s injury; the allegations of inducement and charge being, respectively, (1) that the company maintained two dams across Tallulah river, thereby obstructing the natural flow of the river, collecting and holding two large volumes of water, one dam holding a volume 50 feet deep, 400 yards wide and three miles long, the other a volume 50 feet deep, a half-mile wide and 8 miles long; and (2) that having so collected and stored said water, the defendant suddenly “released” and “turned loose” these immense volumes of water upon the plaintiff’s property, etc. Such is the petition, though not one word of evidence was offered by the plaintiff to establish his charge that the defendant had misused its property, either wilfully or from lack of due care. On the contrary, the plaintiff contented himself -by showing merely that the defendant had previously installed a certain mechanical device, designed to work automatically and prevent the accumulation of water beyond a fixed depth, and that on the occasion in question this machine worked merely as it was designed to work. Such evidence does hot establish the charge in the petition. Until the impropriety of such a use of such a device is alleged and proved, the other evidence touching it does not establish anything against the person so using it. Moreover, from the uncontradicted evidence in behalf of the defendant, it appears that the automatic gates were of an improved and modem design, their advantage over older designs being that they released an excessive inflow of water more gradually and in less bulk than did the older designs; and it further appears, from all the evidence, that on the occasion in question the dam, the flash-boards, and the automatic gates merely performed the function for which they were designed, performing it substantially, if not precisely, in the manner in which they were designed to perform it in such a situation.

The plaintiff’s losses, therefore, were not chargeable to the defendant, and the plaintiff was not, under any view of the case, entitled to a verdict in his favor, and the defendant’s'motion for a new trial should have been sustained.

Judgment reversed.

Wade, O. J., and George J., concur.


author: Luke, 'J.

text:
    8084.
    Tallulah Falls Railway Company v. Taylor.
   Luke, 'J.

1. Under the employer’s liability act of this State (Civil Code of 1910, § 2782), a railroad company is liable in damages to its section foreman for an injury resulting in whole or in part from' the negligence of a member of a crew of employees who, as subordinates, work under such foreman as a vice-principal, both the foreman and the subordinate employee being at the time of the injury engaged in the work for which they were respectively employed, unless it is further made to appear that the injury was brought about by the foreman’s own carelessness amounting to a failure to exercise ordinary care, or that he could have avoided the injury by the exercise of such care. Wrightsville & Tennille Railroad Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 953) ; Savannah & Northwestern Railway v. McCoy, 17 Ga. App. 82 (86 S. E. 282).

(a) The trial court therefore did not err in overruling the defendant’s demurrer, or any of the special grounds of the motion for a new trial complaining of excerpts from the charge of the court which are in harmony with the ruling above announced.

2. The sole witness in the case was the plaintiff, who testified to facts substantially as set forth in his petition, and to additional facts on which the defendant relied for its defense. The court instructed the jury as follows: “The burden is on the plaintiff to show his right to recover, by a preponderance of the evidence, before you would be authorized to find in his favor. A preponderance of the evidence does not necessarily mean by the greater number of witnesses in the case, though the jury may consider the number of witnesses in determining where the preponderance of evidence lies.” This is assigned as error, (1) because sections 5731 and 5732 of the Civil Code of 1910 were not given in full; and (2) because, “there having been no witness introduced by the defendant, the charge as given was confusing .and misleading to the jury;” and (3) because, without the said code-sections being given in charge or a witness being introduced by the defendant, this charge “left the jury under the impression that the evidence supported the plaintifF’s right to recover.” Reid: (a) The charge here complained of was not error for any of the reasons assigned. (6) In the absence of an appropriate written request, it is never error for the court to fail to explain to the jury the meaning of the term “preponderance of evidence.” Ga. So. & Fla. Ry. Co. v. Young Investment Co., 119 Ga. 513 (46 S. E. 644); Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (71 S. E. 887).

3. The court instructed the jury as follows: “If the plaintiff’s injury, if he was injured, was caused solely through the negligence of a fellow servant, he could recover, provided that he himself did not bring about his claimed injury by his own carelessness amounting to a failure to exercise ordinary care. The meaning of this rule is this: The plaintiff can not recover if at the time and place of the claimed injury the plaintiff did not exercise ordinary care in avoiding the consequences of the claimed 'negligence of the defendant or of its employees.” This excerpt from the charge is assigned as error, (1) because it is inapplicable to the evidence in the case, and (2) because the plaintiff was not the fellow servant of the employee whose negligence caused the injury, but was the vice-principal of the defendant, having authority to hire and discharge such employee and being under 'the duty of directing his actions and movements. Reid: (a) This charge was not, for any of the reasons assigned, such error as to demand the grant of a new trial. ■ (b) While in one sense the plaintiff was a vice-principal of the defendant, rather than a fellow servant of the negligent employee (Spencer v. Brooks, 97 Ga. 681, 25 S. E. 480; Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. E. 839, 10 L. R. A. (N. S.) 772; Blackman v. Thomson-Houston Electric Co., 102 Ga. 64, 29 S. E. 120), yet in another sense the vice-principal and Ms subordinate were fellow-servants (Brush Electric Light &c. Co. v. Wells, 110 Ga. 192, 35 S. E. 365; Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S. E. 932; Shepherd v. Southern Pine Co., 118 Ga. 292, 45 S. E. 220) ; and, in view of the qualifying conclusion of the excerpt complained of, and also in view of the charge as a whole, it is apparent that the use of the words “fellow servant” was a mere lapsus linguse, and did not convey a wrong idea . to the jury and did not influence them in arriving at their verdict.

Decided September 13, 1917.

Rehearing denied September 24, 1917.

Action for damages; from Rabun superior court—Judge J. B. Jones. September 1, 1916.

O. L. Bynum, B. E. A. Hamby, Bam Eimzey, Blanton Eorison, for plaintiff in error. McMillan & Erwin, contra.

4. The charge as to contributory negligence, complained of in ground 7 of the motion for a new trial, was error, for the reason that there was no evidence of any negligence or want of due care on the part of the plaintiff; but the error was against the plaintiff, and the defendant will not be heard to complain of an error in its own favor.

5. In an action against- a railroad company, where several different elements of damage are claimed, it is the duty of the court to explain to the jury, with respect to each element, the basis on which the assessment of damages should be made; and, where the case is a close one on the evidence, or where the amount of the recovery is apparently excessive and is reasonably attributable to a lack of such instructions, a new trial will be granted for a failure of the court to instruct the jury as to the rules of law for measuring any element of damage set forth in the petition and supported by evidence. Southern Ry. Co. v. O’Bryan, 112 Ga. 127 (37 S. E. 161). In the instant case, however, the charge complained of in the 8th ground of the motion for a new trial is not cause for a new trial. Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702 (87 S. E. 1093).

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

Judgment affirmed.

Wade, C. J., and George, J., concur.


text:
    8093.
    Dobbs v. Georgia Railway and Power Company.
    Decided September 13, 1917.
    Action for damages; from Cobb superior court—Judge Patterson. April 28, 1916.

      J. Z. Foster, for plaintiff.

      Colquitt & Conyers, John T. Dorsey, for defendant,
   Luke, J.

There is no merit in the assignments of error, and the court did not err in overruling the motion for a new trial.-

Judgment affirmed.

Wade, G. J., and George, J., concur.


text:
    8106.
    Western and Atlantic Railroad Company v. Nance.
    Decided September 13, 1917.
    Action for damages; from Catoosa superior court—Judge Fite. July 38, 1916.

      Tye, Peeples & Tye, Maddox, McOamy & Shumate, M. L. Harris, for plaintiff in error.

      Atkinson & Born, J. R. Johnston, contra.
   Luke, J.

1. While in some instances the charge of the court was not an accurate statement of the law, yet, when considered as a whole, it presents no reversible error of law.

2. The evidence authorized the verdict, and the court did not, for any of the reasons assigned, err in overruling the motion for a new trial.

Judgment affirmed.

Wade, 0. J., and George, J., eoneur.


author: Wade, 0. J.

text:
    8414.
    AUGUSTA-AIKEN RAILWAY & ELECTRIC CORPORATION v. ANDREWS.
    1. The motion to dismiss the bill of exceptions, upon the ground that the brief of evidence appearing in the record is not such a brief as is required by the statute, is overruled. The insertion of some questions and answers in a brief of evidence, where apparently necessary to present the evidence with lucidity and precision, does not necessarily constitute a breach of the requirement that testimony be presented in narrative form; and besides, in no event would a bill of exceptions be dismissed for this reason alone; but, where no proper brief is supplied, exceptions requiring a consideration of the evidence can not be considered.
    2. Where damages are sought on account of alleged negligence, an instruction to the jury, that if they should And from the evidence that at the time the injury was received a given state of facts existed, the defendant would be liable, is error, when the facts enumerated are not such as would constitute negligence per se, under the operation of a statute or valid ordinance.
    Decided September 13, 1917.
    Action for damages; from city court of Richmond county— Judge Black. December 31,1916.
    Gladys Andrews brought suit, through her next friend, against the Augusta-Aiken Railway and Electric Corporation, a street-railway company, and alleged: that about 10:05 o’clock p. m. on October 35, 1913, she went with her sister to the usual stopping place of the defendant’s ears at a point on Broad street, and that just as she reached that place a car belonging to the defendant came to a standstill for the purpose of taking on passengers; that three men unknown to her boarded the car just ahead.of herself and her sister, and as the last one of the three stepped upon it she herself caught hold of the handle-bar and put one foot on the step of the ear and was in the act of boarding it, when the conductor in charge of the car, who was then at the front end, signaled the motorman to go forward, and the car immediately started, with a sudden lunge and jerk which threw the plaintiff violently on the ground and caused the injuries for which she sued. She alleged that the injuries complained of were produced wholly by the negligence of the defendant, “in that it did not' stop said car at its usual stopping place long enough for passengers to safely board the same, and in that the defendant company’s conductor in charge thereof signaled the 'said car forward while the said Gladys Andrews was in the act of boarding the same, and in that the defendant company’s motorman in charge of said ear started said car with a lunge or jerk while the said Gladys Andrews was in the act of boarding said car, and in that the said Gladys Andrews was not given sufficient time to board said car; she being 'in plain view of the conductor in charge of said car, who saw her, or by the exercise of ordinary diligence could have seen her.” She further alleged that at the time of the occurrence she was sixteen years of age, and that she was damaged in the sum of $10,000. The defendant denied generally the essential allegations of the petition, and alleged that the injury complained of was the result of the plaintiff’s own negligence, in that, by the exercise of ordinary care and diligence, she could have avoided the consequences of the alleged negligence of the defendant, and that the defendant and its servants at the time and place of the injury were in the' exercise of all ordinary care and diligence, and the injury was an accident pure and simple, for which the defendant was in no wise responsible, if it did not in fact result from the plaintiff’s own negligence. The trial resulted in a verdict for $3,000 in favor of the plaintiff, the defendant made a motion for a new trial, which was overruled, and it excepted.

      Wright & Wright, for plaintiff in error.

      I. 8. Peebles Jr., T. F. Harrison, C. H. & B. S. Cohen, contra.
   Wade, 0. J.

(After stating the foregoing facts.)

The ruling in the headnote on the motion to dismiss the bill of exceptions needs no amplification. The brief of evidence, it is true, contains approximately two pages of questions and answers, out of a total of nearly fourteen pages appearing in the record in this court, but- it is obvious that a bona fide effort was made by counsel for the plaintiff in error to reduce the testimony to narrative form; and their opinion that the inclusion of certain questions and answers, without abbreviation or "condensation, was essential to the presentation of a lucid and precise statement of the testimony is not without reasonable ground. Even if the brief of evidence were not in proper form, this would not require a dismissal of the bill of exceptions, under the well-settled practice in the Supreme Court a.nd this court. The ruling in Crumbley v. Brook, 135 Ga. 723, 724 (70 S. E. 655), succinctly and clearly covers this question: “If a paper is brought to this court which is called a brief of evidence but which constitutes no compliance with the law on that subject, it does not furnish ground for dismissing the writ of error. But, in such event, no ground of error which involves a consideration of the evidence can be considered. If all the assignments of error are of that class, a judgment of affirmance will result. If there are assignments of error, such as rulings on demurrers, or the like, which do not involve a consideration of the evidence, they may be passed on. Stansell v. Merchants and Farmers Bank, 123 Ga. 278 (51 S. E. 321); Hawkins v. Tanner, 129 Ga. 497 (59 S. E. 225).”

The 7th ground of the motion for a new trial assigns error upon the following charge of the court: “If, on the other hand, gentlemen of the jury, you find from the evidence that the car was started on the signal of the conductor, and that the conductor gave the signal for the ear to start while the plaintiff was in the act of getting on the car, and before she had a chance to get on the car, and that she was thrown to the ground and received injuries as alleged in the petition, then.I charge you that the railroad company is liable.” The errors assigned on this charge were: “ (a) It instructed the jury that the facts recited would show the defendant to be negligent, whereas it was for the jury to determine whether, under the supposed facts, the defendant was or was not negligent. (b) It charges what particular acts of the defendant’s agents would constitute negligence, (c) It places too great a burden on the defendant, in that it makes the defendant liable as a matter of law if the plaintiff was injured while boarding the car by the starting of the car in response to the signal of the conductor, no matter whether the conductor was in the exercise of due care in signaling for the car to start, and no matter whether the motorman was in the exercise of due care when he started the car. (d) It puts too great a burden on the defendant, in that the court instructs the jury that the plaintiff may recover under the supposed facts, without adding any qualification; as, for example, that the plaintiff could not recover if her own negligence and not that of the defendant was the proximate cause of the injury, or that the plaintiff could not recover if she failed to use ordinary care and diligence to avoid the consequences of the defendant’s negligence.”

The uniform decisions of the Supreme Court and of this court, to the effect that a judge in charging a jury can not state what particular acts or facts constitute negligence, unless such acts or facts constitute negligence per se under the operation of a statute or valid ordinance, are too numerous to require more than a mere reference. In West End and Atlanta Street Railway Co. v. Mozely, 79 Ga. 463 (4 S. E. 324), the first headnote of the case is: “Where suit was brought against a street-railway company to recover for an injury alleged to have been received by a passenger in leaving a car, it was error to charge the jury that 'if the plaintiff rang the bell as a signal to the driver to stop, and the car stopped, and the plaintiff, without fault on his part, was in the act of alighting, and before he had completely left the car,—as by having one foot upon the ground and one still on the step—the car suddenly started forward at the will of the driver, and the plaintiff was, by reason of the start or jerk, thrown to the ground and injured, the defendant would be liable.’ Such a charge was equivalent to instructing the jury that the facts recited would show the defendant to be negligent. Whether or not the defendant was negligent was a question for the jury.” In the decision in that case it was said: “We think this charge was error. It took from the jury the consideration of the great fact in- the case, whether the defendant was guilty of negligence in thus doing; it was for the jury to say whether these facts made the defendant negligent. They were the legal alchemists, as has been said by a distinguished member of this court, to determine what was and what was not negligence. It was not' for the court.” See also Georgia Railroad & Banking Co. v. Clary, 103 Ga. 640 (30 S. E. 433); Central Railroad Co. v. Neighbors, 83 Ga. 444 (10 S. E. 115); Atlanta, Knoxville & Northern Railway Co. v. Bryant, 110 Ga. 247 (34 S. E. 350); Coursey v. Southern Ry. Co., 113 Ga. 297, 299 (38 S. E. 866); Chattanooga, Rome & Southern R. Co. v. Swafford, 113 Ga. 363 (38 S. E. 826); Snowball v. Seaboard Air-Line Railway, 130 Ga. 83 (60 S. E. 189). In Mayor &c. of Milledgeville v. Wood, 114 Ga. 370 (40 S. E. 239), the Supreme Court laid down the rule as follows: “In a suit to recover damages alleged to have been sustained in consequence of the negligence of the defendant, a charge which in effect instructs the jury -that if they believe from the evidence that, at the time the injury was received, a given state of facts existed, such facts would constitute negligence on the part of the defendant, is erroneous, when the facts are not such as would, under the operation of a statute or valid ordinance, constitute negligence per se.”

Under the testimony in this case there was a sharp issue as to whether the conductor in charge of the car, or some unauthorized-person or passenger thereon, gave the signal which caused the motorman to start the ear forward and thus precipitate the plaintiff upon the street. The conductor testified positively that he himself did not give the signal. The motorman testified that the signal was given, but he was unable to say by whom it was given. A witness for the plaintiff testified positively that he saw the conductor, or a person wearing the uniform cap of a conductor, give the signal; and there was testimony for the defendant tending to show that this witness at the rear of the car could not have seen the conductor up near the front, because the ear was crowded and the aisle was full of standing passengers. There is nothing whatever to suggest that the conductor, if he in fact gave the signal for the car to proceed, saw or could have seen the plaintiff from inside the car as she attempted to step upon the platform, or knew that she would attempt' to enter the car, and there was no testimony from which it must necessarily be inferred that it was the duty of the conductor to remain on the back platform of the car at all times and under all circumstances to guard against possible injury to passengers seeking to enter the car at that point, but, to the contrary, his explicit testimony was that he was required, in the performance of his proper duties, to enter the car and approach the front part fqr the purpose of collecting fares from passengers who had omitted to pay him as they entered from the back platform. It was, therefore, a question for determination by the jury, even if they believed under the testimony for the plaintiff that the conductor gave the signal to the motorman which caused the car suddenly to advance on its way without warning to the plaintiff, and to her injury, whether, under all the circumstances and in the absence of knowledge on his part (on account of his presence in the performance of other duties near the front of the car) that the plaintiff was seeking to step upon the back platform, he was pegligent in signaling the motorman to proceed, or was in the exercise of the degree of care required by law. The instruction complained of eliminated entirely from the consideration of the jury the question whether the conductor was, under all the circumstances of the case, as shown by the evidence, in the exercise of due care in signaling for the car to start; and likewise is subject to the exception, urged by the plaintiff in error, that too great a burden was imposed upon the defendant by the instruction from the court that the plaintiff might recover, under the supposed facts recited, without adding, as a part of the instruction, the qualification that she could not recover if her own negligence was the proximate cause of the injury, or if she failed to'use ordinary care and diligence to avoid the consequences of the defendant’s negligence.

It is true that the charge complained of was immediately followed by the instruction that if the injury was caused by the negligence of the plaintiff, and she could by the exercise of ordinary care and diligence have avoided the consequences to herself of the defendant’s negligence, no recovery could be had; but the charge complained of was given, without. qualification, as a complete statement of the facts which if proved would constitute negligence on the part of the defendant and render it liable; and hence the qualification included in the additional instruction can not be held with reasonable certainty to have removed all probable harm from the preceding bald statement that certain enumerated facts would render the company liable. This excerpt, when considered alone, eliminated from the consideration of the jury the further question whether the plaintiff was in the exercise of ordinary care in hurrying aboard the crowded car without any knowledge as to the whereabouts of the conductor, and with no means of knowing whether or not the signal for its starting had already been given; all of which questions were for them, especially in view of the plaintiff’s testimony that she did not hear the bell ring, at all; from which the jury might possibly have inferred that the bell had already rung, and the car was actually on the very .verge of starting or had just begun to move when the plaintiff caught the handle-bar and placed her foot on the step. The charge of the court as given necessarily excluded, however, this view from the minds of the jury; for while, as already stated, the judge instructed the jury that a lack of ordinary care on the part of the plaintiff would prevent a recovery, in the excerpt complained of he explicitly said: “If, on the other hand, gentlemen of the jury, you find from the evidence that the car was started on the signal of the conductor, and that the conductor gave the signal for the ear to start while the plaintiff was in the act of getting on the car, and before she had a chance to get on the car, and that she was thrown to the ground and received injuries as alleged in the petition, then I charge you that the railroad company is liable.”

The defendant in error cites, in support of her contention that the excerpt above quoted is not subject to the exceptions taken, the case of Savannah Electric Co. v. Bennett, 130 Ga. 597 (61 S. E. 529). In that case the charge complained of was as follows: “If you find that the ear was stopped for the purpose of enabling the plaintiff to alight, and that she was not afforded a reasonable time and opportunity to alight with safety, and while in the exercise of ordinary care for her own safety she was injured as alleged in her petition, you would be authorized to find for the plaintiff.” In the decision Mr. Justice Atkinson said: “The court in effect charged that the railroad company owed the passenger the duty to afford her a reasonable opportunity to alight in safety, and if there was a' breach of this duty and the plaintiff was injured while in the exercise of ordinary care for her own safety, she could recover for such breach of duty. This is merely the application of legal principles involved in the case, and does not withdraw from the consideration of the. jury any question of fact. The plaintiff was a passenger on the ear of the defendant, and, as a matter of law, was entitled to a reasonable opportunity to alight in safety at the place of her destination, and the charge was not open to the criticism made upon it.” It will be observed that the charge complained of in that case left for determination by the jury not only the question whether or not the time afforded the plaintiff to alight was a reasonable time, but whether or not the opportunity “to alight in safety” was afforded her, and the further qualification was added, in the same sentence, that the plaintiff must have been “in the exercise of ordinary care for her own safety when she was injured.”

It has been repeatedly held, as already suggested, that the only instance in which a trial court has the right to instruct the jury in a negligence case that certain acts' or facts constitute negligence is where there is a statute or valid ordinance so declaring. Central Railway Co. v. McKenney, 116 Ca. 13, 16, 17 (42 S. E. 229); Central Railway v. McKinney, 118 Ca. 535, 537 (45 S. E. 430); Atlanta, Knoxville & Northern Ry. Co. v. Bryant, supra; Augusta Railway & Electric Co. v. Smith, 121 Ca. 29, 32 (48 S. E. 681); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (8), 369 (54 S. E. 110). In the McKenney case (116 Ga. 13, 16) a charge held to he error was: “If you believe the train did not stop long enough to allow this passenger to alight in safety, that would be, upon the part of the company, negligence.” The court in so holding quoted from the decision- in the Bryant case, as follows: “ Only the commission of those acts which are prohibited by statute, or the omission of those things which are prescribed by statute, constitutes, under such circumstances, negligence per se. Whether the commission of acts other than those so inhibited, or the omission to perform those required, constitutes negligence, is a question of fact, and must be determined by the jury, and not by the judge.” It may be said further that a clear distinction between the instruction approved in the Bennett case, supra, and the case now under consideration may be found in the fact that in' the former ease the measure of the railroad company’s duty, as there defined, was to afford “a reasonable time and opportunity to alight with safety,” whereas in the case under consideration the measure of the railroad company’s duty was declared to be that it must afford the passenger “a chance to get on the car,” and that if the car started “before she had a chance to get bn the ear,” the company would be liable. The phrase “before she had a chance to get on the car” is indeterminate, vague, and indefinite, and does not exclude a bare chance or a desperate chance, or confine the jury to the consideration of whether the 'plaintiff was afforded a reasonable chance to get on the car, and hence whether she was justified in making the attempt; nor did it permit them to find that she was not in the exercise of ordinary care for her own safety in attempting to'board the car because the “chance to get on the car,” actually afforded her, did not justify such an attempt, in the exercise of ordinary care for her own safety, either because the car had already started, or was in motion when she made the attempt, or a signal had already been given for it to start before the attempt was made. Under the instruction given, the jury might have concluded that the plaintiff was justified in attempting to enter the car, notwithstanding it was in motion, but inasmuch as the defendant had not afforded her what they might consider was a “chance to enter the ear,” the defendant would nevertheless be liable. In other words, the instruction as given, considered by itself, eliminated the question whether the plaintiff was in the exercise of ordinary care in attempting to enter the car at all, under the circumstances disclosed by the testimony, and declared that if a chance to enter was not afforded her, the defendant would be liable.

Had the plaintiff been already on the car, she would have been entitled to a reasonable opportunity to alight therefrom in safety, and possibly an instruction that she was entitled to “a chance” to get off of the car in safety, considered by itself, would have been unobjectionable; but the instruction that if the signal was given by the conductor for the car to start while the plaintiff was in the act of getting on the car “and before she had a chance to get on the ear,” and she was thrown to the ground and injured, the railroad company would be liable, undoubtedly excluded the question whether (under the circumstances) the plaintiff was in the exercise of ordinary care in attempting to get on the car at all, or whether the conductor was in the exercise of extraordinary care in giving the signal for the car to start while she was (unknown to him) thus attempting to get on it. It was the duty of the railroad company to give the plaintiff a reasonable opportunity to enter the car with safety, but the question whether or not the opportunity afforded her at the time of the injury was apparently so reasonable as to relieve her of the charge of failing to exercise ordinary care for her own safety in making an attempt to enter the car,—or whether, -under the circumstances, she should have declined altogether to make the attempt to enter, was for the jury, but, under the instruction given, was removed from their consideration; for if a reasonable opportunity were not afforded her to board the car in safety, it was her .duty not to make the attempt. In Western & Atlantic Railroad Co. v. Burnham, 123 Ga. 28 (50 S. E. 984), the Supreme Court declared it to be the duty of the railroad company to stop the train “long enough” at the station for the plaintiff to alight, but the trial court did not in that case undertake to advise the jury that-if a given state of facts were shown to exist, the defendant would be liable, as was done in the case under consideration. In Central Railroad & Banking Co. v. Neighbors, supra, the court, after reciting the facts, added the words, “and negligently” did thus and so; leaving the jury to determine the question of negligence. We think that the charge complained of in this case was error requiring a reversal of the judgment.

The remaining grounds of the motion for a new trial are without substantial merit, and do not require elaboration or further reference.. The court erred in overruling the motion for a new trial, for the reason that the excerpt from the charge, complained of in the 7th ground, contains a statement as to what proved facts would constitute negligence.

Judgment reversed.

George and Luke, JJ., concur.


author: Wade, C. J.

text:
    8651.
    Leader & Rosansky v. Moseley.
   Wade, C. J.

1. There was evidence from which the jury could infer that the defect in the horse warranted as sound by the agent of the seller existed at- the time the warranty was made.

2. The charge of the court expressly limited the jury to the consideration of whether or not there was a breach of warranty “as contended for the plaintiff;” and under this instruction, when considered in connection with the pleadings, the jury were not authorized to And against the defendants for defects not existing at the time the Warranty was made.

3. There is nothing in the evidence to indicate that at the time the second note was executed by the purchaser (about five days after the first note had been given, and in lieu thereof), he had discovered that the horse was diseased or worthless; and hence the giving of the second note did not amount to a waiver of the defect complained of.

4. There being no sufficient legal foundation for the introduction of secondary evidence as to the contents of the original written contract of purchase, the court did not err in declining to admit the proffered testimony.

Decided September 13, 1917.

Action on contract; from Toombs superior court—Judge Hardeman. November 5, 1916.

E. J. Giles, Hines & Jordan, for plaintiffs in error.

5. There was no error in overruling the motion for a new trial.

Judgment affirmed..

George and Luhe, JJ., concur.


author: G-eobge, J.

text:
    8687.
    Haggerty v. Holmes & Barber.
    Decided September 13, 1917.
    Action for damages; from city court of Yaldosta—Judge Cranford. March 20, 1917.

      Greene F. Johnson, James M. Johnson, for plaintiff.

      E. K. Wilcox, Whitaker & Dukes, for defendants.
   G-eobge, J.

An examination of the record discloses no substantial error upon any controlling issue in the case. This being the second verdict in favor of the defendant, and there being evidence to sustain the verdict, the judgment overruling the plaintiff’s motion for new trial will not be reversed.

Judgment affirmed.

Wade, C. J., and Luhe, J., concur.


author: Geobge, J.

text:
    8697.
    Baker Mercantile Co. v. Hancock Brothers & Co.
   Geobge, J.

1. Where an attachment against a non-resident has been sued - out in a justice’s court and executed by service of garnishment only, and no notice has been served as provided in the Civil Code (1910), § 5103, and there has been no bond or appearance and defense, a general judgment against the defendant is void. Parks v. Williams, 137 Ga. 578 (73 S. E. 839), and cases there cited.

2. In such ease a valid judgment against the defendant in attachment is a necessary prerequisite to a final judgment against the garnishee. Fagan v. Jackson, 1 Ga. App. 24 (57 S. E. 1052); Americus Grocery Co. v. Link, 116 Ga. 813 (43 S. E. 49).

3. In such case the justice’s court is without jurisdiction to enter a judgment in rem until the garnishee has answered, or it has been judicially determined by judgment or verdict, on the trial of a traverse to his answer, that he is indebted to or has in his hands property or effects of the defendant. Where the garnishee in his answer denies that he is indebted to or has in his possession money or effects of the defendant in attachment, jurisdiction of the suit depends upon the judgment or verdict sustaining the traverse to the truth of such answer. Henry v. Lennox-Haldeman Co., 116 Ga. 9, 11 (42 S. E. 383) ; Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 499 (2) (55 S. E. 251, 115 Am. St. R. 108).

4. In such case the jurisdiction of the court over the non-resident defendant is in abeyance until the fact that there are effects in the hands of the garnishee appears by answer, or by judgment on a traverse to the answer. Where the attachment is executed by service of summons of garnishment only, no judgment can be rendered until it is made to appear to the court that the effects of the defendant have been seized under garnishment proceedings. Albright-Pryor Co. v. Pacific Selling Co., supra.

5. In such case, therefore, it is necessary for the plaintiff to sustain his traverse to the answer of the garnishee, and on the trial of the issue formed by the traverse it is unnecessary for the plaintiff to show that he has obtained a judgment against the defendant in attachment. He can not in such circumstances obtain a valid judgment against the defendant prior to a judgment or verdict sustaining his traverse to the answer of the garnishee. Parker-Fain Grocery Co. v. Orr, 1 Ga. App. 630 (57 S. E. 1074).

6. In such case, on the trial of the issue formed by the traverse to the answer of the garnishee, it was erroneous to admit in evidence, over the objection of the garnishee, an unauthorized and void general judgment entered against the defendant in attachment. While the void judgment was irrelevant, immaterial, and of no force, its introduction in evidence, under the facts in the present record, did not and could not prejudice the rights of the garnishee. The only issue for the jury was on the traverse to the garnishee’s answer denying indebtedness to the defendant. That issue being found against the garnishee, it was the right and the duty of the court to hold the case against the garnishee in abeyance until final judgment was rendered against the defendant. Parker-Fain Grocery Co. v. Orr, supra.

7. After verdict sustaining the traverse to the answer of the garnishee, it was error to enter a final judgment against the garnishee, no valid judgment against the defendant in attachment having been rendered. It follows that the judge of the superior ■ court erred in overruling the certiorari.

8. “When a suit is brought by attachment in this State against a nonresident of the State and the attachment is levied by service of summons of garnishment, the situs of any debt due by the garnishee to the defendant shall be at the residence of the garnishee in this State, and any sum due to the defendant in attachment shall be subject to said attachment.” Civil Code (1910), § 5095. This section of the code changed the rule announced in Central Railway Co. v. Brinson, 109 Ga. 359 (34 S. E. 597, Am. St. R. 382), Johnson v. So. Ry. Co., 110 Ga. 303 (34 S. E. 1002), Henry v. Lennox-Haldeman Co., supra, and Beasley v. Lennox-Haldeman Co., 116 Ga. 13 (42 S. E. 385).

9. The reversal of the judgment of the court below will not require a new trial upon the traverse to the answer of the garnishee, since that verdict is sustained by the evidence in the record, and no legal reason appears why it should be set aside. If the result of the trial on the main issue is a judgment in favor of the plaintiff and against the defendant in attachment, then final judgment may be entered against the garnishee.

Decided September 13, 1917.

Certiorari; from Coffee superior court—Judge Summerall. March 2, 1917.

B. T. Allen, for plaintiff in error. Levi O’Steen, contra.

Judgment reversed.

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


text:
    8701.
    E. Tris Napier Company v. Dennard.
    Decided September 13, 1917.
    Certiorari; from Bibb superior court—Judge Mathews. February 19, 1917.

      Charles H. Qarrett, for plaintiff in error.

      Napier & Maynard, G. M. Nottingham, contra.
   Geobge, J.

A liveryman’s lien was foreclosed in the city court of Macon and a levy was made upon certain personalty as the property of the defendant. A third person filed a claim to the property, and, by agree- , ment between the plaintiff and the claimant, the property was sold, without prejudice to the rights of either party. At the trial the lien foreclosure was dismissed upon a technical ground urged by the claimant, and the judge entered an order dismissing the levy and taxing the costs against the plaintiff, and awarding to the claimant the proceeds of the sale. The plaintiff obtained a writ of certiorari, and on the hearing the judge of the superior court reversed the judgment of the lower court. Held: The dismissal of the levy was proper, it appearing, from the answer of the judge of the municipal court (which was not traversed), that the plaintiff acquiesced in and consented to the dismissal; but it was properly held that so much of the judgment of the municipal court as awarded the fund to the claimant was error, it appearing that no evidence whatever was introduced by the plaintiff, the defendant, or the claimant, and that the levy was dismissed upon a purely technical ground. Under such circumstances the municipal court had not the authority to award the proceeds of the personalty levied upon to the claimant. Stewart v. Mundy, 131 Ga. 586 (4) (62 S. E. 986).

Judgment affirmed.

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


text:
    8721.
    Thurman v. Avera.
    Decided September 13, 1917.
    Action for damages; from Berrien superior court—Judge Thomas. March 21, 1917.

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

      W. D: Buie, Q. A. Christian, for defendant.
   George, J.

The defendant in a bail-trover action was discharged by order of the judge, because of his inability to produce the property or give the bond required by statute. The plaintiff obtained’ a supersedeas of that judgment, for the purpose of reviewing the judgment. The court ordered the release of the defendant, pending the appeal, on condition that he execute in effect an eventual-c'ondemnation-money bond. The sheriff allowed the defendant to go, on the giving of a bond for his personal appearance to abide the judgment in the cause. The judgment discharging the defendant was affirmed by the Court of Appeals. Thurman v. Smith, 16 Ga. App. 523 (85 S. E. 799). Thereafter and after verdict and judgment in favor of the plaintiff and against the defendant the plaintiff filed suit against the sheriff, for damages occasioned by “the breach of an official duty of the sheriff and his deputy;” to which the deputy sheriff and the defendant in the trover action, and the sureties upon the bond for the defendant’s personal appearance were made parties. Held: The petition did not set forth a cause of action, and the demurrer of the sheriff, on this ground, was properly sustained. There was also a misjoinder of parties defendant. If the sheriff had taken the bond required of the defendant by the order of the court, the liability upon that bond would have been at an end on the affirmance by this court of the judgment discharging the defendant. This being true, the failure of the sheriff to take such bond did not result in loss to the plaintiff.

Judgment affirmed.

Wade, G. •/., and Luke, J., concur.


text:
    8735.
    CROOM v. JORDAN.
    1. The judgment of a trial court, sitting without a jury, on a question of ■ fact, will not be disturbed by the Court of Appeals, where there is legal evidence to sustain the finding of the court.
    2. The lien of a chattel mortgage executed prior to the act of 1916 (Georgia Laws, 1916, p. 48), as security for a loan of money, for the use of which interest at a rate greater than five per cent, per month has been reserved or charged, may be asserted for the principal and lawful interest on the debt. Where such a mortgage has been executed since the act of 1916, the lien may be asserted for the principal amount actually loaned or advanced. The fact that the charging or taking of interest in excess of five per cent, per month is made a misdemeanor, punishable by fine and imprisonment, does not render the mortgage absolutely void, since the laws of this-State provide for'the status of usurious contracts, including mortgages, when the subject of an action in a civil court.
    Decided September 13, 1917.
    Certiorari; from Bibb superior court—Judge Mathews. February 14, 1917.
    A chattel mortgage, executed in 1915 by Croom to Jordan, was foreclosed by Jordan in the municipal court of Macon, and Croom filed an affidavit of illegality, contending, (1) that at the time of the execution of the mortgage he was an infant; and (2) that the plaintiff reserved and charged interest in excess of five per cent, per month for the money advanced as the consideration for the execution of the mortgage. On the plaintiff’s motion the judge of the municipal court struck the second ground of the affidavit of illegality, so far as it sought to bar the plaintiff’s right to recover-the sum actually advanced and legal interest, and the case proceeded to trial upon the questions as to the infancy of the defendant at the date of the execution of the mortgage, and as to the amount of usury, if any, included in the note secured by the mortgage. The court, sitting without a jury, found in favor of the plaintiff for the principal and legal interest, and against the plea of infancy.. Certiorari was sued out by the defendant, the judge of the superior court overruled the certiorari and the case came to this court on exceptions to that judgment.

      G. H. Garrett, for plaintiff in error.
    J. Q. Fstes, Walter DeFore, contra.
   George, J.

. The evidence in the record authorized the judge of the municipal court to find that the mortgage executed by the defendant was given by him during his minority, to obtain .money with which to pay the purchase price of a horse to be used and which was used by him in connection with his business as salesman and collector. Under section 4235 of the Civil Code (1910), and on the facts in the record, it can not be said that the judgment finding against the plea of infancy is without evidence to sustain it.

The Civil Code (1910), § 3436, provides as follows.- “It shall not be lawful for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever.” By section 3438 it was provided that “Any person, company, or corporation violating the provisions of section 3436 shall forfeit the excess of interest so charged or taken, or contracted to be reserved, charged, or taken.” Section 3442 provided that “All titles to property made as a part of an usurious contract, or to evade the laws against usury, are void.” A mortgage, under our law, does not convey title, and if infected with usury, is not void except as to the excess of interest reserved, charged, or taken. Under our law a power of sale contained in a mortgage infected with usury is valid and may be exercised to the extent of collecting the principal together with lawful interest. Holliday v. Lowry Banking Co., 92 Ga. 675 (19 S. E. 28); Hodge v. Brown, 81 Ga. 276 (7 S. E. 282); Moseley v. Rambo, 106 Ga. 597, 600 (32 S. E. 638); Payton v. McPhaul, 128 Ga. 518 (58 S. E. 50). By act of 1916 (Georgia Laws, 1916, p. 48) sections 3438 and 3442, supra, were repealed and it was provided that “Any person, company, or corporation violating the provisions of section 3436 of the Code of 1910 shall forfeit the entire interest so charged or taken, or contracted to be reserved, charged, or taken.”' Section- 2 of the act is as follows: “Be it further enacted, by the authority aforesaid, that no further penalty or forfeiture shall be occasioned, suffered, or allowed further than as stipulated in section 1 hereof (the entire interest).” The mortgage involved in the instant case was- executed before the passage of that act, and the status of the mortgage, under the rule obtaining in this State, is fixed by the law as it existed at the time of the execution of the mortgage. “Statutes amending prior statutes are to be construed as intended to have operation on future transactions only, and as having no retroactive .purpose not' plainly expressed.” Compare Maynard v. Marshall, 91 Ga. 840 (2) (18 S. E. 403).

Section 3444 of the Civil Code (1910) provides as follows: “It shall be a misdemeanor for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection- of any sum of money, any rate of interest greater than five per cent, per month, either directly or indirectly, by way of commission for advances, discount, exchange, the purchase of salary or wages, by notarial or other fees, or by any contract, or contrivance, or device whatever; save and except only that regularly licensed pawnbrokers, where personal property is taken, in their actual physical possession and stoed by them, may charge, in addition to said rate of interest, not exceeding twenty-five cents at the time said property is first 'taken possession of by them for the storage of said property.” Section 3445 declares: “The preceding section shall not be construed as repealing or impairing the usury laws now existing, but as being cumulative thereto.” Section 700 of the Penal Code (1910) provides that “whoever shall violate section 3444 of the Civil Code, relating to interest at a greater rate than five per cent, per month, shall be guilty of a misdemeanor.” It is insisted by the plaintiff in error that the mortgage executed by him is absolutely void. The uncontroverted evidence is to the effect that the mortgage contained, an amount as interest in excess of five per cent, per month. .Under the law of this State such a contract is unlawful, and the a;ct of reserving, taking, or charging a rate of interest greater than’ five per cent, per month for the loan or advance of money, or forbearance to enforce the collection of money, is made penal. Section 3444 of the Civil Code and section 700 of the Penal Code would have the effect (nothing further appearing) to sustain the contention made by the plaintiff in error, and defeat the mortgage in this case, manifestly made in the face of the plain provisions of the law of this State, referred to above. However, the statutes and the decided cases of the courts of last resort in this State on the subject of usury provide for the civil status of usurious contracts. As to contracts made prior to the acts of 1916, the excess interest, that is, the amount charged over and above the legal rate of interest, shall be forfeited; The status of a mortgage infected with usury, when the subject of an action in a civil court, as in this case, is thoroughly established by the decisions of this court and of the Supreme Court. Such a mortgage is not void, except as to the usury included therein, and may be enforced for the collection of the actual principal and the legal interest thereon. As to contracts made since the act of 1916, the principal only is collectible. In the absence of our statutes and decided cases the invalidity of the mortgage involved in the present case might be conceded. In view of the recognized status of usurious .mortgage contracts, the judge of the superior court, in our opinion, rendered the proper judgment, and it is accordingly affirmed. Compare Waite v. Bartlett, 53 Mo. App. 378 (2).

Judgment affirmed.

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