text:
    8649.
    HAGAN, administrator, et al. v. CONE, ordinary, for use.
    Under the laws of Georgia, the fact that an heir kills the person from whom he expects to inherit will not change' the application of the statutes of descent. *
    Decided December 13, 1917.
    Action upon bond; from Bulloch superior court — Judge Hardeman. October 25, 1916.

      Anderson & Jones, Strange & Metis, for plaintiffs in error.

      Brannen & Booth, J. D. Sparks, contra.
   Bloodworth, J.

1. The question in this case is whether or not a husband who kills his wife can inherit her property. It appears that this question has never been answered by a court of last resort of this State. Section 3930 of the Civil Code of 1910 is as follows: “Upon the death of the wife the husband is her sole heir, and upon payment of her individual debts, if any, may take possession thereof without administration, unless she dies intestate leaving a separate estate without remainder or limitation oyer which can and does take effect, and leaves, with the husband, a surviving child or children . . ; then such separate estate shall be equally divided, share and share alike, between said husband and said offspring per capita, but the descendants of children shall take per stirpes.” We know of no law in Georgia changing this rule in case the husband should kill his wife. Indeed the constitution of our State provides, in article 1, see. 2, par. 3 (Civil Code of 1910, § 6384): “No conviction shall work corruption of blood or forfeiture of estate.” As showing the policy of our law along this line, § 4161 of the Civil Code of 1910 is as follows: “Forfeiture to the State for crime is abolished in this State, except so far as the lien which the State holds upon all the property of an offender for the costs of the prosecution against him.” While in some of the States it has been held that one who kills another can not inherit from the deceased, yet the strong current of authority is-against this opinion; and where there is a statute which fixes the rule of descent, as in our State, the authorities are practically united in holding that the fact that the heir killed the person from whom he is to inherit will not bar the operation of the statute. In the case of McAllister v. Fair, 72 Nan. 533 (84 Pac. 112, 3 L. R. A. (N. S.) 726, 115 Am. St. R. 233, 7 Ann. Cas. 793), the headnote is as follows: “The power to declare the rule for the descent of property is vested in the legislature; and where it has provided in plain and peremptory language that a husband shall inherit from his deceased wife, and no exception is made on account of criminal conduct, the court is not justified in reading into the statute a clause disinheriting the husband because he feloniously killed his intestate wife for the purpose of acquiring her property.” And in the opinion of the court Johnston, C. J., says: “Although a theory cutting a murderer out of any benefits resulting from his crime appeals to the court’s sense of justice, it can not be overlooked that the legislature has the power to declare a rule of descents; it has done so in language that is plain and peremptory, and no rule of interpretation would justify the court in reading into the statute an exception, or clause disinheriting those guilty of crime.” In the case of Bosley v. Mattingly, 53 Nv. 89, the. principle is thus announced: “When the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by the change of the law itself, to be effected by legislative and not judicial aption.” See also Shellenberger v. Ransom, 41 Neb. 631 (59 N. W. 935, 25 L. R. A. 564). In the case of Owens v. Owens, 100 N. C. 240 (6 S. E. 794), the 2d headnote is as follows: “Forfeiture of prop- ' erty for crime is unknown to our law, nor does crime intercept the transmission of an intestate’s property to his heirs.and distributees.” In the opinion Smith C. J. says: “Does the husband who kills his wife impair his right, under'the statute of distributions, to succeed to the ownership of her personal property left after payment of debts? Or, in general terms, does any one, as a consequence of an unlawful taking of a human life, become thereby dis'■abled to take a part of the estate left by the deceased, which the law gives him, and gives him subject to no such condition? We are unable to find- any sufficient legal ground for denying to the petitioner the relief which she demands; and it belongs to the lawmaking power alone to prescribe additional grounds of forfeiture of the right, which the law itself gives, to a surviving wife. Forfeitures of property for crime are unknown to our law, nor does it intercept for such cause the transmission of an intestate’s property to heirs and distributees, nor can we recognize any such operating principle. We have searched in vain for any authority or ruling on the question, and find no adjudged case; the fact that none such is met with affords a strong presumption against the proposition.” A headnote in the case of James Carpenter’s estate, 170 Pa. 203 (32 Atl. 637, 29 L. R. A. 145, 50 Am. St. R. 765), has the following: “A son who has murdered his father, for the purpose of securing his father’s estate is entitled to take the estate under the intestate laws. -His crime does not destroy his right-of inheritance.” In discussing this case Mr. Justice Green (pp. 207-209) says: “The penalty for murder in the first degree in Pennsylvania is death by hanging. No confiscation of lands or goods, and no deprivation of the inheritable quality of blood, constitutes any part of the penalty of this offense. The declaration of rights, artiele 1, section 18, of the constitution of the State declares that ‘no person shall be attainted of treason or felony.by the legislature,’ and by section 19 it is provided that ‘no attainder shall work corruption of blood nor, except during the life of the offender, forfeiture of estate to the commonwealth. The estate of such persons as shall destroy their own lives shall descend or vest as in cases of natural death; and if any .person shall be killed by casualty, there shall be no forfeiture by reason thereof.5 These- ar"e provisions of the organic law which may not be transcended by any legislation. . . The legislature'has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence. . . It is argued that the son who murders his own father has forfeited all right to his father’s estate, because it is his own wrongful act that, has terminated his father’s life. The logical foundation of this argument is and must be that it is a punishment for the son’s wrongful act. But the law must fix punishment; the courts can only enforce them. In this State no such punishment as this is fixed by any law, and therefore the courts can not impose it. '. . It is argued however, that it would be contrary to public policy to allow a parricide to inherit his father’s estate. Where is the authority for such a contention? How can such a'proposition be maintained, when there is a positive statute which disposes of the whole subject? How can there be a publie policy leading to one conclusion, when there is a positive statute directing a precisely opposite' conclusion? In other words, when the imperative language of a statute prescribed that, upon the death of a person, his estate shall vest in his children in the absence of a will, how can any doctrine or principle, or other thing called- publie policy, take away the estate of a child and give it to some other person? The intestate law casts the estate upon certain designated persons, and this is absolute and peremptory, and the estate can not be diverted from these persons and given to other persons without violating the statute. There can be' no public policy which contravenes the positive'language of a statute.” It is argued by counsel for. the plaintiffs in error that it is against public policy to allow one to reap any benefit from his own criminal act; to allow the murderer to inherit from his victim. The quotation from the Carpenter case, just cited, answers this argument. “The public policy of a State is the law of that State as found in its constitution, its statutory enactments, and its judicial records.” People v. Hawkins, 157 N. Y. 12 (51 N. E. 257, 42 L. R. A. 490, 6 Am; St. R. 736); Kuhn v. Kuhn, 125 Iowa, 449, 453 (101 N. W. 151). The statute of our-State, quoted above, provides that the husband shall inherit from the wife. This is an absolute provision of the law; and where there is no will made by the wife, and she leaves no children, her "entire estate goes to the husband, and can not be diverted and given to others without a violation of the statute. “There can be no public policy which contravenes the positive language of the statute.” This question is discussed as follows in 9 Ruling Case Law, 47, 48: “The weight of authority is to the effect that in the absence of a statute providing that murderers shall not inherit the property of their victims, the courts can not except murderers from the operation of the statutes of descent. The theory of these cases is that the horror and repulsion caused by such an atrocity does not warrant the court in reading into a plain statutory provision an exception which the statute itself in no way suggests. It is declared that the logical foundation of the argument that the wrongdoer can not take is that it is a punishment for the wrongful act, but that as the law must fix punishments and the courts can only enforce them, therefore, if no such punishment as this is fixed by any law the courts can not impose it; and further, that since the constitution positively prohibits any attaint of treason or felony by the legislature, and any corruption of blood by reason of attainder or any forfeiture of estate, except during the life of the offender, no such consequence can be visited on the offender. To the proposition that to permit the murderer to inherit is contrary to public policy, the reply in effect is that there can be no public policy which contravenes the positive language of a statute. With much force it has been pointed out that some leading cases which take a contrary view are based on wills and contracts, and not on mere statutory rights, and may be harmonized or their language disregarded as being dictum.”

The court did not err in sustaining the demurrer to the plea, and properly directed a verdict for the plaintiff, under the agreement between the parties that this result should follow if the ruling on'the demurrer was correct.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    8694.
    Collins v. Broom.
   Bloodworth, J.

1. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors in law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132) ; Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732) ; McGarty v. Keys, 19 Ga. App. 494 (91 S. E. 875).

Decided December 13, 1917.

Trover; from city court of Savannah — Judge Freeman. March 19, 1917.

H. G. Dukes, J. P. Dukes, for plaintiff in error.

W. B. Hewlett, B. L. Golding, contra.

2. The motion for new trial embraced the usual general grounds only. There was ample evidence to support the verdict, and the court properly refused a new trial.

Judgment affirmed.

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


text:
    8723.
    Cox v. Gulp Guano Company.
    Decided December 13, 1917.
    Writ of error; from Mitchell superior court.

      Charles Watt Jr., Peacock & Gardner, for plaintiff in error.

      Billie B. Bush, contra.
   Bloodworth, J.

Where a bill of exceptions fails to show any service thereof upon the opposite party or his counsel, or any acknowledgment or waiver of service, the writ of error will be dismissed. Civil Code (1910), § 6160; Gorman v. Central of Ga. Ry. Co., 141 Ga. 125 (80 S. E. 553); Albritton v. Tygart, 139 Ga. 231 (77 S. E. 28).

Writ of error dismissed.

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


text:
    8733.
    Richey v. Alverson.
    Decided December 13, 1917.
    Processioning; from Whitfield superior court — Judge Fite. December 1, 1916.

      J. M. Budolph, for plaintiff in error. J. A. Longley, contra.
   Bloodworth, J.

1. Grounds 4, 5, 6, and 7 of the amended motion for new trial are but amplifications of the general grounds.

2. Ground 8 is too indefinite to present any issue for determination by this court.

3. There was evidence to support the verdict.

4. A new trial was properly refused.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    8999.
    Turner v. North Georgia Fertilizer Company, for use, etc.
    Decided December 13, 1917.
    Complaint; from city court of Floyd county — Judge Nunnally. May 21, 1917.'

      Harper Hamilton, F. W. Copeland, for plaintiff in error.

      Nathan Harris, contra.
   Broyles, P. J.

Under the facts of the case the court did not err in sustaining the exceptions of law to the auditor's report; and.the entire case being controlled by matters of law, and there 'being no material ■issue of fact, and a reference to a jury, or a rereferenee to the auditor, being unnecessary, the court did riot err in overruling the report of the auditor and in rendering judgment in favor of the plaintiff. ■

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Harwell, J.

text:
    9002.
    BROOKE v. PICKETT.
    1. Where the jury, on the trial of a joint action against two cosureties, finds against the plea filed by one of them, the relationship, unknown until after verdict, within the prohibited. degrees, of a juror to the other surety, who filed no plea, will require the grant of a new trial, since the failure of such surety to sustain his plea gives to his co-surety a right, of contribution against him, and furnishes a motive to such a juror to find against his plea. Under these circumstances the relationship is not presumed to be in favor of, but is presumed to be prejudicial to, the interests of the complaining party.
    2. It is not necessary to pass upon the remaining grounds of the motion for a new trial, since the errors therein complained of are not likely to occur upon another trial.
    Decided December 13, 1917.
    Complaint from Milton superior court — Judge Morris. May 14, 1917.
    Mrs. O. Piekétt brought suit on a promissory note against R. J. Webb, principal, and W. J. Webb and J. P. Brooke as sureties. R. J. Webb and W. J. Webb filed no plea. J. P. Brooke filed a plea setting up that he was indorser on the. note, and that by reason' of certain acts of the plaintiff, increasing his risk as surety or indorser, he was released. A • verdict was found against R. J. Webb as principal,- W.-J. Webb as surety, and J. P. Brooke as indorser; and judgment was entered accordingly. J. P.. Brooke filed-a motion for new trial, upon several grounds,, which the court .overruled, and lie excepted. The 5th ground of the motion complains that Dinsmore, one of the jurors who tried the case, is related within the prohibited degrees to W. J. Webb, in that the wife of Dins-more is a third cousin of the wife of W. J. Webb. The 6th ground complains that Eobert Martin, one of the jurors who tried the case, is related within the prohibited degrees to W. J. Webb, in that Martin’s wife is a third cousin of W. J. Webb. Affidavits are attached to the motion, showing the relationship, and also that neither Brooke nor his counsel had any knowledge of this relationship before the trial and could not have known it by the exercise of proper diligence.

      George F. Gober, W. I. Heyward, J. P. Brooke, for plain tiff in error. F. W. Coleman, G. B. Walker, contra.
   Harwell, J.

The juror Dinsmore was not disqualified by reason of the fact that his wife was'related as third cousin to the wife of W. J. Webb, one of the defendants. Central R. Co. v. Roberts, 91 Ga. 517 (18 S. E. 315). The juror Martin was disqualified by reason of the relationship of his wife within the prohibited degrees to W. J. Webb. Ledford v. State, 75 Ga. 856. The defendant in error, however, insists that this is not a ground for new trial in the instant case, because of the fact that the juror Martin was not related to an opposite party, but was related to a codefendant of the unsuccessful party, J. P. Brooke; and her counsel cites the following cases in support of her contention: Wright v. Smith, 104 Ga. 174 (30 S. E. 651); Downing v. State, 114 Ga. 30 (39 S. E. 927). We recognize that the appellate courts of this State, have laid down the rule that relationship of a juror within the prohibited degrees to one of the parties will not be cause for the grant of a new trial, where the relationship is to the unsuccessful party; and if, in the instant case, the juror Martin were related to the plaintiff in error Brooke, it would come within the rule stated by these decisions, and would not be cause for the grant of a new trial. The plaintiff in error insists, however, that this rule does not apply in the instant case, for the reason that the interest of W. J. Webb in the result of the suit (that is, as to whether Brooke shall prevail on his plea) is not in harmony with, but antagonistic to, Brooke’s defense For, being sureties, if Brooke prevails, W. J. Webb will have the whole debt to pay, if it can not be made out of the principal; if Brooke loses, Webb will be entitled to contribution from him.

The question is not without some difficulty, and we find no case exactly in point; but we think, upon principle, that the relationship of the juror in the instant case to a cosurety of the plaintiff in error does afford cause for the grant of a new trial. Brooke was an accommodation indorser, and is to be considered merely as a surety. Civil Code (1910), § 3541. He is cosurety with TV"; J. Webb. The verdict being against both of these parties as sureties, W. J. Webb is entitled to contribution from Brooke in the payment of this judgment, if it can not be made out of the principal. Civil Code (1910), § 3564. It is to the interest of W.' J. Webb that a verdict should be rendered against Brooke. Otherwise, upon failure of the principal to pay the debt, the entire burden of the payment will fall upon Webb. Hence the interest of the related juror would be to hold Brooke, the plaintiff in error, liable as a surety in order that the right of contribution might exist to his cousin. We do not mean to intimate that any such motive actuated the juror in rendering this verdict. • It may be that he was perfectly impartial and decided the case without any regard to his relationship. But, as was said in the case of Temples v. Central of Ga. Ry. Co., 15 Ga. App. 122 (82 S. E. 777), “the ruling which fixes the disqualification of a juror and debars one from serving who is related to either of the parties within the ninth degree is itself not based upon the actuality of interest, but upon the probability of its existence.” For the reasons stated we think that the juror Martin was disqualified, and that a new trial should be granted. It is not necessary to deal with the other grounds of the motion, since the errors therein complained of, if there be any, will not likely occur upon another trial of the case.

Judgment reversed,.

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


text:
    9005.
    CANTON FERTILIZER COMPANY v. HUNT.
    1. There is no merit in the motion to dismiss the hill of exceptions on the ground that the sheriff was not made a party thereto.
    2. No traverse of , the answer of the .garnishee having been filed by the claimant, the court erred in not sustaining the motion to dismiss her intervention, and in directing a verdict in her favor.
    Decided December 13, 1917.

      Claim; from Cherokee superior court — Judge J. B. Jones presiding. May 9, 1917.
    The Canton Fertilizer Company, holding a fi. fa. against E. M. Hunt & Company, T. J. Hunt, and J. G. Hunt, had summons of garnishment served on Spears, sheriff. In his first answer the sheriff said he had $500 in money belonging to T. J. Hunt, one of the defendants; but in his answer as amended he denied indebtedness to the defendants, and made allegations in the nature of an interpleader, the substance of which is, that a bank check for $500 had been placed in his hands by T. J. Hunt as security for the appearance of J. G. Hunt at the August term, 1914, of Cherokee superior court, and from term to term thereafter until a criminal case against J. G. Hunt should be finally disposed of; that the cheek, which was signed by Mrs. S. F. Hunt, had been cashed on the sheriff’s indorsement, and the money was in his hands; and that, so far as he knew, no indictment had been returned in said matter up to the time of the answer. Mrs. S. F. Hunt filed an intervention, asking to be made a party, and setting up, briefly, that she was the mother of J. G. Hunt; that the bank check was turned over to her husband, T. J. Hunt, to be turned over to the sheriff as security for the appearance of her son, J. G. Hunt, to answer a criminal charge against him; that said money was her individual money; that neither of the defendants had any interest in it; and she prayed that it be awarded to her. This petition was not sworn to. The judge of the superior court passed an order making her a party claimant. At the trial the plaintiff in fi. fa. made a motion to dismiss the claim filed by Mrs. Hunt, for the reasons that (a) the garnishee admitted having in his possession the sum of $500 under the conditions above stated, and this answer had never been traversed by the claimant; and (&) the claimant had never given bond and dissolved the garnishment, neither had she filed a claim and given a forthcoming bond, or filed a claim and given a pauper affidavit, as provided by law, and (c) she had not filed any claim under oath, and was-not, under the law, a party. The motion was overruled, and to this the plaintiff in fi. fa. excepted. The claimant assumed the burden of proof, and on hearing the evidence the court directed a verdict awarding the $500 in question to the claimant; to which the plaintiff in fi. fa. exceptéd.

      G. I. Teasley, Howell Brooke, Anderson & Roberts, for plaintiff.

      W. W. Stark, W. D. Mills, contra.
   Harwell, J.

(After stating the foregoing facts.)

’’“Before a claimant becomes a party, to a garnishment suit, he must file a claim to the . property apparently belonging to the defendant, in the hands of the garnishee, or he must give a bond to dissolve the garnishment, under the provisions of the Civil Code” (1910), § 5282. Drought v. Poage, 3 Ga. App. 178 (3) (59 S. E. 728). “Where . . the garnishee in his answer admitted that he had a fund in his hands, but was unable to state whether the same belonged to the defendant, or. to a third person, who, before the filing of the answer, had,- as a claimant of the fund, given bond as required by . . the code for the dissolution of the garnishment, the court had no jurisdiction, as between the plaintiff and the claimant, to proceed to judgment upon- the claim bond thus filed, until after a traverse had been filed by one or the other, or both, of the contending parties, and an issue made up as prescribed by the code,” § 5283. Small v. Mendel, 96 Ga. 532 (23 S. E. 834). Upon the answer of the sheriff the court should not have directed a verdict in favor of the claimant. The answer of the garnishee was in the nature of an interpleader, setting out the facts. It stated that he did not know, to whom the money belonged, but that he held it subject to the order of the court. We think the answer, showed that the fund belonged to T. J. Hunt, as the check was turned over to the sheriff by him, though signed by Mrs.'Hunt; it was in the possession of T. J. Hunt when turned over to the sheriff, and possession is prima facie evidence of ownership; No bond was given to dissolve the garnishment, as required by § 5282 of the Civil Code (1910). No claim was filed by Mrs. Hunt, unless the intervention filed ,by her can be treated as such, and we think it can be so treated. See Gordon v. Wilson, 99 Ga. 354 (27 S. E. 762). No traverse of the garnishee’s answer was filed by the claimant. The answer of the garnishee is taken to be true until traversed; and-under the answer of the garnishee, until traversed by the claimant and an issue made thereon, the court could not direct a verdict in favor of the claimant. We think,, therefore, no traverse having been filed by the claimant, that the court erred in not sustaining the motion of the plaintiff in fi. fa. (now plaintiff in error) to dismiss the intervention attempted to .be-made by the claimant, and in directing a verdict in her favor. Davis v. Pringle, 108 Ga. 93 (33 S. E. 815); Gordon v. Wilson, supra; Sam Weichselbaum Co. v. Allen, 20 Ga. App. 204 (92 S. E. 1014); Booth v. Brooke, 6 Ga. App. 299 (64 S. E. 1103); Harris v. Exchange Bank, 17 Ga. App. 700 (88 S. E. 40).

Judgment reversed.

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


text:
    9006.
    Kennedy v. Ocean Steamship Company of Savannah.
    Decided December 13, 1917.
    Action for damages; from city court of Savannah — Judge Freeman. April 18, 1917.

      Osborne, Lawrence & Abrahams', for plaintiff.

      H. W. Johnson, Lawton & Cunningham, for defendant.
   Broyles, P. J.

1. Even if the exclusion of certain testimony" given by the plaintiff's husband was error, the plaintiff was not injured thereby, since, as shown by the evidence contained in the bill of exceptions, substantially the identical testimony by the same witness was elsewhere admitted.

2. The plaintiff did not prove her ease as laid. A material allegation in-her petition was that the stairway, which descended from the hurricane or middle deck to the main or lower deck, upon the steps of which she slipped and fell, thereby sustaining the injury sued for, was “located for the purpose of affording methods of. ascent and descent.between said floors or decks for passengers on said vessel.” In an amendment to the petition it was alleged that “passengers were permitted to use said steps by the defendant. Said steps were generally and commonly used by passengers.” The proof did not sustain these allegations.

3. Under the evidence submitted, liability of the defendant for the plain-' tiff’s injuries was not shown, and the court did not err in awarding a nonsuit.

Judgment affirmed.

Bloodioorth and Harwell, JJ., concur.


text:
    9015.
    DOUGHERTY v. WOODWARD.
    1. The owner of an automobile is not liable for injuries inflicted by his son, twenty years of age, in negligently operating it, where it appears that at the time of the injuries the son was using the car for his own purposes, and not as the agent or servant of the father.
    2. The trial judge, under the facts appearing in the record, did not err in directing a verdict in favor of the defendant.
    Decided December 13, 1917.

      Action, for damages. Before Judge Bell. Fulton superior court. May 31, 1917.
    Mrs. Dougherty sued Woodward for the financial value of the life of her son, alleged to have been killed by the defendant’s son in the negligent operation of defendant’s automobile. It is alleged in her petition that “defendant’s son at said time and place drove defendant’s automobile, and the other occupant of the automobile was defendant’s wife, and the automobile at said time and place was operated for and in behalf of defendant,.and in the furtherance of his interest.” By amendment it was alleged: “Said automobile was owned by the defendant and was for the use of his family, and each member of his family, and for his family collectively in their recreation and for their pleasure, and for the purpose of transporting the members of his said family from place to place for any purposes which the said members of his family wanted to use said ear for, and as they desired, and said car was so used by the different members of the defendant’s family, and at said time and place the said defendant’s automobile had in it, as occupants, two members of defendant’s family, and said automobile was being used in transporting the wife of the defendant, and was being driven by the defendant’s son, and was being used by the son and the wife of the defendant for one of the purposes for which said automobile was kept by the defendant.” After the conclusion of the evidence for plaintiff and defendant the court directed a verdict in favor of the defendant, to which ruling the plaintiff excepted. So much of the evidence as is material to an understanding of the case is given in the opinion, infra.

      Nalley & Scott, for plaintiff. Moore & Branch, for defendant.
   Harwell, J.

(After stating the foregoing facts.) It is not necessary to consider the allegations or the proof as to the acts of negligence charged to the defendant’s son, the value of the life of plaintiff’s deceased son, or any other circumstance save that of the agency of the son in driving the defendant’s ear, which feature we deem controlling upon the case. The evidence was in sharp conflict as to whether the car, driven by the defendant’s son at the time of the injury, was the property of the defendant or his wife, and would have authorized either conclusion. However, conceding that the car was the property of the defendant and was being negligently driven by his son, the father would still not be liable, unless the son, in driving the car, was in the performance of his father’s business. “It may be taken as settled law in this State that a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he- did not derive any benefit, merely because of the relation of parent and child. . . A child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the-general principles governing the relation of master and servant, or principal and agent.” Griffin v. Russell, 144 Ga. 275, 278 (87 S. E. 10, L. R. A. 1916E, 216, Ann. Cas. 1917D, 994). And, as said by the New York court: “The liability of an owner of a motor-ear for the negligence of one driving it in his absence depends upon whether the relation of master and servant existed at the time. It must be shown that at the time of the injury the driver was within the control of the owner, or executing his orders, or doing his work. An owner who allows his son, twenty years of age, to drive such vehicle at his pleasure is not liable for injuries received by his negligence when the owner was not present, and the son was not acting for him but was driving the car for his own purposes.” Maher v. Benedict, 123 App. Div. 579 (108 N. Y. Supp. 228). The evidence in the present record shows that the defendant’s son on the occasion of the injury was using the car on his own behalf and in connection with his own business, being at the time of the injury on his way home from inspecting some property he contemplated buying. There is no evidence in the record showing that the automobile was owned and kept by his father for the purpose for which it was being used at the moment of the injury. It is true that his mother was in the car with him, but she went with him at his own request and in order to give him the benefit of her judgment in regard to the property. The evidence is not sufficient to show that the automobile was driven by the son as the chauffeur of his father and about his father’s business. It shows, on the other hand, that the son, though a minor, lacked only a few months of being twenty-one years of age, and was in the naval service of the United States government, and was on this occasion at home on his vacation, and was using the automobile for his own personal business purposes, and even without the knowledge of his father.

Nor do we think that the father, by his expressions of sympathy to the bereaved family and his statements to the mother of the deceased that'“he would do the right-thing by her,” and would do his Christian duty in the matter, amount to a ratification of the tort or to an acknowledgment of his liability therefor. It does not appear that the father was charged with liability for the injury and failed to deny liability, or that he offered his assistance to the bereaved mother in a spirit of compromise; but his statements seem to have been made only in a spirit of benevolence, and without any admission of legal liability. . For these reasons we think that the jury would not have .been authorized to return a verdict in ■ the plaintiff's favor, and that the court properly directed a verdict in favor of the defendant.

Judgment affirmed.

Bloodworth, J., concurs. Broyles, P. J., concurs dubitante.


author: Bbovles, P. J.

text:
    9026.
    Melton v. Andrews.
    Decided December 13, 1917.
    Attachment; from Appling superior1 court — Judge Highsmith. May 17, 1917.

      W. W. Bennett, for plaintiff in error.

      Padgett & Watson, contra.
   Bbovles, P. J.

1. In a suit by attachment based upon certain promissory notes given by the defendant, it is not error to admit the notes in evidence without proof of their execution, where no plea of non est factum has been filed.

2. In such a suit, where copies of all the notes except one were attached to the petition as exhibits, and where immediately ’ after ' and under . the last note copied, and on the same sheet of paper, appeared 'the words, “one more note exactly like the above not copied,” the original of the note so specified but not copied was admissible in evidence, over the objection that it was not sued upon, was not attached to the plaintiff’s declaration, and its execution had not been proved.

3. The court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9042.
    TERRY v. SWIFT & COMPANY.
    1. Under sections 3 and 4 of the act of August 22, 1911 (Acts 1911, p. 172; Park’s Ann. Code, §§ 1778(c), 1778(d), the publishing of a false or incorrect analysis by branding or by attaching a tag or tags upon the sacks or packages of a commercial fertilizer, and a deficiency of ten per cent, or more below the guaranteed analysis in any one component or ingredient thereof, is a false branding under the terms of the act, entitling the purchaser of such fertilizer to recover the penalty provided by section 3.
    2. The penalty provided by section 3 of the act of 1911 is for publishing the false analysis, and one'penalty only (plus the shortage) is recoverable by a purchaser for the false publishing of the analysis of any one grade of a fertilizer which he has purchased.
    Decided December 13, 1917.
    Complaint: from Webster superior court — Judge Littleiohn. June 15, 1917.
    Swift & Company brought suit against Terry on a promissory note given for the purchase of fertilizers. The defendant admitted giving the note, but pleaded that the fertilizers failed to come up to the guaranteed analysis, and claimed on that account a deduction from the purchase-price in the total sum of $821.61. He claimed that fifty-one tons, known as the “Pioneer Brand,” fell off more than three per cent, from the guaranteed commercial value, and he asked to recover the twenty-five per cent, penalty allowed by law, plus the shortage, that is, the difference between the guaranteed commercial value and the actual commercial value as found by analysis. In addition to this, on the fifty-one tons he claimed that the actual analysis of the nitrogen constituent fell more than ten per cent, below the guaranteed analysis; and because of this he asked a recovery of an additional penalty of twenty-five per cent., plus the shortage. As to four tons called “Excelsior Top Dresser,” he claimed that its actual commercial value fell more than ten per cent, below the guaranteed commercial value; and he asked to recover both penalties, that is, the penalty of twenty-five per cent., plus the shortage, because of the deficiency of more than three per cent, in the commercial value, and also a penalty .of twenty-five per cent., plus the shortage, because of the false branding, as allowed under sections 2 and 3 of the act of 1911 (cited in the decision). He claimed further that on the four tons of fertilizer he was entitled to recover the same penalty, plus the shortage, on account of the fact that the actual analysis of the nitrogen in this fell more than ten per cent, below the guaranteed analysis. The plaintiff conceded a deduction on behalf of the defendant of a total amount of $420.74, representing shortage for the three per cent, deficiency on the fifty-one tons and three per cent, deficiency on the four tons, and also the penalty of twenty-five per cent, for false branding on the four tons. An analysis-by the department of agriculture was offered in evidence, and showed that the actual commercial value of the fifty-one tons fell slightly more than three per cent, .below the guaranteed value, and also showed that the' actual commercial value of the four tons fell more than ten per cent, below the guaranteed value. This analysis also showed that the nitrogen constituent in both of the two fertilizers fell more than ten per cent, below the guaranteed analysis. Upon hearing evidence the court allowed the defendant to set off the amount conceded by the plaintiff, and directed a verdict on the note for $946.78, the balance of principal, and for interest and attorney’s fees. A motion for new trial, on the general grounds, was overruled, and the defendant excepted.

      J. F. Souter, J. B. Hudson, Little, Powell, Smith & Goldstein, for plaintiff in error. G. Y. Harrell, contra.
   Harwell, J.

(After stating the foregoing facts.) The deduction conceded by the defendant in error and allowed by the court covered the penalties and shortage as allowed by the act of 1911 (Ga. L. 1911, p. 172, § 2), for the differences between the guaranteed commercial value and the actual commercial value as found by analysis, on both fertilizers, and also on the “Excelsior Top Dresser” (the four tons), the 25 per cent, penalty and shortage for false branding under section 3 of that act. This deduction from the purchase-price was in accord with the decision in Arlington Oil & Guano Co. v. Swann, 13 Ga. App. 562 (79 S. E. 476). The act of 1911 (supra) allows to the purchaser twenty-five per cent, of the purchase-price as damages, plus the shortage, when the difference between the actual commercial value and the guaranteed commercial value, by reason of the deficiency in any ingredient, is more than three per cent. Section 3 of this act allows to a purchaser damages in a sum of twenty-five per cent, of the purchase-price, plus shortage, for false branding; and by section 4, ten per cent, below the guaranteed analysis constitutes a false branding. The plaintiff in error insists that he should have been allowed the penalty, plus the shortage, provided by section 3 of this act, for false branding on the fifty-one tons, because of the ten per cent, deficiency in nitrogen. He also insists that he should have been allowed on the four tons an additional penalty for false branding, because there was a deficiency in them of ten per cent, in nitrogen, and also of ten per cent, in the commercial value. The act of 1911 must be construed with the law as embodied in sections 1771 to 1775, inclusive, of the Civil Code of 1910. If any conflict exists, the act of 1911 must prevail. Johnson v. Southern Mutual Building &c. Asso., 97 Ga. 622 (25 S. E. 358); Terdery v. Walton, 137 Ga. 213, 216 (73 S. E. 390). Section 1772 of the Civil Code (1910) requires the guaranteed analysis on the tag on each bag, barrel, or package to show the valuable constituents of the fertilizer in minimum percentages. Sections 3 and 4 of the act of 1911 read as follows:

“Sec. 3. Be it further enacted by the authority aforesaid, That any manufacturer, manipulator,-dealer, or vendor of commercial fertilizers in this State, who publishes by branding dr by attaching a tag or tags upon the sacks or packages of fertilizer a false or incorrect analysis of the components and ingredients thereof, shall be liable in law to any and every purchaser of such falsely and incorrectly branded or tagged fertilizer in a sum of twenty-five per cent, of the purchase-price, plus the shortage of such commercial fertilizer.
“See. 4. A deficiency of more than ten per cent, below the guaranteed analysis of the fertilizers as published and branded or tagged on the sacks or packages thereof shall be held and declared by the courts of this State to constitute a false and incorrect publishing, branding, or tagging within the intent, purpose, and meaning of this Act.”

Thus, section 3 provides a penalty on any manufacturer, etc., who publishes by branding or attaching a tag or tags upon the sacks or packages a false or incorrect analysis of the components and ingredients thereof. Section 4 says that a deficiency of more than ten per cent, below the guaranteed analysis shall be held a false branding. The question is whether the language of section 4, as to “a deficiency of more than ten per cent, below the guaranteed analysis,” has reference to each component or ingredient, or whether it applies only to the total of these components, or to the total commercial value of these components. The purpose of § 1772, supra, and of the act of 1911, is to inform the purchaser of the percentage of phosphoric acid, nitrogen, and potash, or other components, in each sack. It is well known that these ingredients are used for different purposes in the fertilization of crops. One may be valuable for one plant or one soil, and another'valuable for another and different plant or soil. The quantities of each component used would also vary with different conditions of the crops. An intelligent farmer, understanding these matters, buys and uses his fertilizers accordingly. A fertilizer may come up to the total guaranteed percentage, and yet might be entirely unsuited to the purposes for which it was purchased. It was to meet exactly this need of intelligent farming that these acts were passed. The farmer, not being able to analyze for himself, must rely on the analysis as he finds it published. To place on the act the construction insisted upon by defendant in error would destroy one of its purposes. In the interpretation of the act we must look for the intention of the General Assembly, keeping in view the old law, the evil and the remedy, and give it that reasonable construction which will effectuate its purpose as disclosed by the. legislative mind. Section 4 does not make a deficiency of a certain percentage of the commercial value as used in § 1774, supra, or as used in section 2 of the act 1911, a false branding. If the legislature had intended such, we must presume that it would have said so. It is a publishing of a false analysis of the components and ingredients which is penalized, and if it is false as to the nitrogen or any one component, and the deficiency in that constituent amounts to ten per cent., it is a false or incorrect analysis.

We do not think, however, the law means to impose, under section 3, two penalties, though the analysis may show a deficiency of ten per cent, in each of two components, or a deficiency of ten per cent, in one component and also in the commercial value. The penalty is for the act of publishing the false analysis. The analysis may be false as to one component or as to several components, but only one penalty is recoverable for the act of publishing the analysis. That, we think, is the correct interpretation of the act. Applying these rulings to the instant ease, a fur-. ther penalty of twenty-five per cent., pins the shortage, should have been allowed on the fifty-one tons, amounting to $334.81. The facts in the present record being undisputed, if at the time the remittitur is entered as the judgment of the trial court, the defendant in error will write off from the verdict this amount of $334.81 from .the principal sum recovered, and a proportionate amount be written off of the interest and attorney’s' fees recovered, the judgment will stand affirmed; otherwise, the judgment will be reversed.

Judgment affirmed, on condition.

Broyles, P. J., and Blood-worth, J., concur.


author: Jenkins, J.

text:
    8568.
    Blumenthal & Company v. Schneider & Brother.
    Decided December 14, 1917.
    Complaint; from city court of Biehmond county — Judge Black. January 15, 1917.

      Paul T. Chance, William E. Fleming, for plaintiffs.

      C. H. & Pi,. 8. Cohen, Samuel E. Myers, for defendants.
   Jenkins, J.

The provision of the statute of frauds, that any contract for the purchase and sale of goods or merchandise to the amount of $50 or more shall' not be binding unless the contract be in writing and signed by the purchaser, or some person lawfully authorized by him, does not, by the terms of the statute itself, have application where the buyer, after receiving the full shipment- of merchandise in accordance with an unsigned contract of purchase, shall accept and actually retain, under the terms of such a contract, part of the goods so received. Thus, where a certain bill of goods consisting of 190 suits of the total value of $1,039.50 was sold by the plaintiff to the defendant, and the order made out by the plaintiff’s salesman was not signed by any one, but was subsequently filled by the shipment of the entire purchase, of which shipment the defendant actually accepted and retained forty-nine of the suits under the terms of the contract as made, and subsequently returned the remainder, it was error, in an action brought for the recovery of the purchase-price of the order, for the trial judge to grant a nonsuit on the gound that the contract of sale, not being in writing, came within the provisions of the statute of frauds, 'and was therefore void. Civil Code (1910), § 3222 (7).

Judgment reversed.

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


author: Wade, C. J.

text:
    8613.
    Love v. Bush.
    Decided December 14, 1917.
    Certiorari; from Morgan superior court — Judge Park. March 8, 1917.

      M. C. Few, for plaintiff' in error.

      Williford & Lambert, contra.
   Wade, C. J.

1. No exception to the answer of the magistrate having been filed in writing-before the case was called in its order (Civil Code, § 5196; Ford v. Toomer, 116 Ga. 795 (43 S. E. 45), upon oral objection that the answer was not verified the court did- not err in ordering it to be returned to the magistrate, who made it after he had retired from office, tó be verified by his affidavit and again returned to the court. Civil Code, § 5197.

(a) This ruling is not in conflict with Pitts v. Simpson Grocery Co., 15 Ga. App. 617 (2) (83 S. E. 1102), as by the verification of the answer no additional statement of fact was incorporated in it, as to which the defendant in fi. fa. was deprived' of an opportunity to except, because of the statutory requirement that exceptions to an answer must be filed before the call of the case.

2. The filing of an answer to the petition for certiorari by the former magistrate raised the presumption that service of the petition had been duly effected, and dispensed with the necessity for legal proof of such service. All that could have been accomplished by formal service was in fact attained when the answer of the proper party was duly filed.

3. It is conceded in the brief of counsel for the plaintiff in error that if the trial judge was authorized to order the verification of the answer and pass upon the certiorari, the grant of a new trial is not subject to review.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8619.
    TOLAR v. FUNDERBURKE.
    A contract with a partnership forms no basis for a suit in favor of one of the partners individually against the other contracting party.
    Decided December 14, 1917.
    Complaint; from city court of Bainbridge — Judge Spooner. March 20, 1917.

      A. F. Thornton, for plaintiff in error.

      Hartsfield & Conger, contra.
   Wade, C. J.

T. 0. Funderburke instituted suit against Mrs. Tolar, to recover $365 principal, besides interest at 7 per cent., • alleged to be due according to contract for the boring of two deep wells upon her lands. The petition alleged distinctly that the defendant was indebted to the plaintiff, and prayed for judgment; and it was verified by the affidavit of Funderburke, and process issued in his name as plaintiff. It is nowhere suggested that the plaintiff was a partnership doing business in the name and style of “T. C. Funderburke,” but to the contrary the petition as brought clearly seeks to recover the amount sued for under an alleged contract between the defendant on the one hand and Funderburke in his individual behalf on the other. The defendant denied that she had ever contracted with Funderburke or was in-,' debted to him in any amount; in addition, to other defenses set up in her plea. The undisputed proof showed that the wells, for the boring of which a recovery was sought by Funderburke individually, were bored by one E. A. Cloud, who testified that he and Funderburke each owned a half interest in the machine with which the work was done and that he was operating the same with Funderburke ; and that he himself made the contract with the defendant for both wells, for which Funderburke, whom he referred to as his “partner,” accepted certain notes without his knowledge, signed by the husband of the defendant, which notes were not, however, sued upon. Funderburke testified that in the boring and drilling of the wells, for which suit was brought, “Mr. Cloud and I were partners. . . Mr. Cloud was interested half with me; we have not dissolved partnership. . . After Mr. Tolar [the husband of the defendant] died, Mr. Cloud came to me and asked me if Mr. Tolar owed us, [italics ours] anything, and I told him yes,” etc. There was no testimony to the effect that the partnership composed of Funderburke and Cloud was doing business in the name and style of “T. C. Funderburke,” and, under the direct testimony of both of the partners interested, the amount claimed to be due by Mrs. Tolar was not due to either partner individually, but to the firm, and the action is undoubtely one in which it is sought to recover “in favor of one of the partners severally against the other contracting party,” notwithstanding the fact that the partnership had not been dissolved at the time the suit .was instituted, or even when the trial was had. In Thompson v. McDonald, 84 Ga. 5 (2) (10 S. E. 448), it was said: “A contract with a partnership raises no cause of action in favor of one of the partners severally against the other contracting party, though the partnership was dissolved before full performance, and though, by arrangement between the partners, performance was completed, after dissolution, by the partner who has brought the suit.” Again, in Blackwell v. Pennington, 66 Ga. 340, it was said: “In all suits by partners or persons jointly interested, where the -name of any one who ought to have been joined is omitted, it may be inserted instanter on motion. But a suit brought by one in his individual name can not be changed into a suit in the name of a partnership.” Had the petition in this ease alleged that the amount claimed was due to T. C. Funderburke, a partnership composed of Funderburke and another, it might have been amended by alleging the name of the other partner; but, as ruled in the case last quoted, since the suit was brought by Funderburke in his individual capacity, or as an individual, it could not have been converted into a suit in favor of a partnership even by amendment. The ruling in Myers v. Hook, 11 Ga. App. 517 (75 S. E. 833), precisely covers this case. It was there held: “The plaintiff having alleged in his petition that the defendant was indebted to him as an individual, and having proved that the indebtedness, if there was any, was due by a partnership, he failed to prove his case as laid, and the motion to award a nonsuit should have been granted.” No motion for nonsuit appears, however, to have been made_ in this case. See also Massoud v. Lamar, Taylor & Riley Drug Co., 18 Ga. App. 398 (89 S. E. 443). It is unnecessary to multiply authorities along this line.'.

One of the grounds of the motion for a new trial alleges error because the court gave the following instruction to the jury: “Should you find from the evidence that the plaintiff Funderburke was in a partnership with some other person or persons, and the partnership business was conducted in the name of the plaintiff T. C. Funderburke, he would have the right to bring this suit in that name or in the name of T. C. Funderburke.” This charge is objected to because “not in conformity with the law,” and because the plaintiff alleged that the defendant was indebted to him, whereas the evidence showed that, if indebted to any one, she was indebted to a partnership of which he was a member, and there was no evidence whatever tending to show that the partnership business was conducted in the name of Funderburke alone, upon which to base this instruction. We think this exception well taken. TJpoa ^e pleadings and under the proof, this instruction was error, and the court thereafter erred in overruling- the motion for a new trial based upon this ground.

Under the foregoing ruling, we do not think it necessary to consider the various other exceptions, and they are not passed upon.

Judgment reversed.

Jenlcins and Luhe, JJ., concur.


text:
    8626.
    Branch v. Dublin and Laurens Bank.
    Decided December 14, 1917.
    Complaint; from city court of Dublin — Judge Flynt. March 10, 1917.

      B. Earl Camp, for plaintiff in error.

      Chappell & Burch, contra.
   Jenkins, J.

1. A purchaser of a negotiable note, although with notice either express or constructive of equities and defenses as between the maker and the original payee, is protected in his title and may recover on it, if he purchased, even without recourse, from one who took it, bona fide and without notice, from the original payee. Civil Code (1910), §4535; Burch v. Pope, 114 Ga. 334 (40 S. E. 227); Weil v. Carswell, 119 Ga. 873 (47 S. E. 217); Wade v. Elliott, 11 Ga. App. 646 (75 S. E. 989); Day v. Rogers, 7 Ga. App. 535 (67 S. E. 279).

2. The court did not err in excluding the testimony complained of, or in 'thereafter directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    8632.
    Barrett v. Western and Atlantic Railroad Company.
    Decided December 14, 1917.
    / Action for damages; from Whitfield superior court — Judge Fite. November 27, 1916.
    W. E. Mánn, W. G. Martin, for plaintiff.

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for defendant.
   Wade, C. J.

1. In the absence of timely written requests therefor, there is no merit in those grounds of the motion for a new trial which complain of the failure of the court to give certain specific instructions. The charge was sufficiently full, and clearly submitted the issues to the jury.

2. There is no such substantial merit in any of the remaining special grounds óf the motion for a new trial as to require a reversal.

3. The evidence sufficiently sustains the verdict.

Judgment affirmed.

Jenkins and Luke,.JJ., concur.


text:
    8648.
    Thompson v. Scott.
    Decided December 14, 1917.
    Complaint; from Pickens superior court — Judge Patterson. November 25, 1916.

      Isaac Grant, Fred Morris,, for plaintiff in error.

      Howard Tate, Bell, Bilis & Bell, contra.
   Jenkins, J.

A breach of warranty, express or implied, gives the pur-

chaser a right to damages (Civil Code (1910), § 4136); and even though the seller by his acts might have become liable for fraud as well as for a breach of warranty, the buyer may waive the fraud and sue upon the breach of warranty. Burge v. Stroberg, 42 Ga. 88; Perdue v. Harwell, 80 Ga. 150 (4 S. E. 877). The present action appears to have been brought to recover damages under an alleged express warranty under which the consideration of a purchase had wholly failed. The verdict was not unauthorized, since the evidence, though conflicting, was such as might sustain the contentions of the plaintiff. The exceptions contained in the motion for new trial relating to the alleged errors in the charge of the court, not being referred to in counsel’s brief, must be treated as abandoned.

Judgment affirmed.

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


text:
    8667.
    BOARD OF EDUCATION OF ROCKDALE COUNTY v. GRESHAM.
    1. A motion for a new trial is not an appropriate remedy to contest the jurisdiction of the court. 29 Cyc. 759; Evans v. Allgood, 16 Ga. App. 24, 27 (84 S. E. 603) ; Beery v. Burkhalter, 113 Ga. 1043 (39 S. E. 406) ; Hawkins v. Chambliss, 120 Ga. 614 (2) (48 S. E. 169).
    2, The evidence demanded the verdict for the plaintiff, and the court did not err in directing it.
    Decided December 14, 1917.
    Complaint; from Boekdale superior court — Judge Smith. October 6, 1916.
    This was a suit against the board of edueatión of Boekdale county for an amount claimed to be due to the plaintiff for services as teacher in New Pleasant Hill School, situated in DeKalb county, near the line of Boekdale county. The amount sued for was a part of her salary proportioned to the number of children attending the school from Boekdale county, relatively to the total number of children in the school. The evidence shows that the claim was made out and presented to the defendant, which refused to pay it. The correctness of the items of the account was not disputed, and it was shown by uncontradicted evidence that the school in DeKalb county was nearer the residences of the children who attended it from Boekdale county, and was more accessible to them, than any public school in the county of their residence.

      A. G. & J. H, McCalla, for plaintiff in error.

      L. J. Steele, contra.
   Jenkins, J.

(After stating the foregoing facts.) Section 1378 of the Civil Code of 1895 was as follows: “In special cases, to meet the demands' of convenience, children residing in one sub-district may, by express permission of the county board, attend the common schools of another subdistrict; and when a common school is located near a county line, children from an adjoining county may, by the consent of the county boards of the respective counties, be permitted to attend the school. In such cases the teacher shall make out- two accounts, one against each county board, in amount proportioned to the number of children in the school from the respective counties.” In 1903 the General Assembly so amended this provision as to read as follows: “In special cases, to meet the demands of convenience, children residing in one subdistrict may, by express permission of the county board, attend the common schools of another subdistrict; and when a common .school is located near a county line, children from an adjoining county shall be permitted to attend the school: Provided, such children reside nearer such school, or said school is more accessible to the residences of such children than any public school in the county of their residence. In such cases the teacher shall make out two accounts, one against each county board, in amount proportioned to the number of children in the school from the respective counties.” Civil Code (1910), § 1509. Counsel for the plaintiff in error contend that the word “shall,” as above italicised by us, should be construed as having the meaning of “may;” but since the legislature by specific amendment manifested its intent by not only striking from the law, as originally enacted, the words, “by consent of the county boards of the respective counties,” but by substituting the word “shall” in lieu of the word “may” as originally used, we are without power to give to the present statute the interpretation now asked for by counsel. It appears that the purpose of the legislature was to make such right of attendance independent of any permissive authority of-the county boards, the only condition to such right of attendance under the present statute being the added requirement that such children shall reside nearer such school, or that it shall be more accessible to the residences of such children than any public school in the county of their residence. The sole condition thus prescribed by the statute being met by the evidence, and it being undisputed, the verdict for plaintiff was demanded, and there was no error in directing the same.

Judgment affirmed.

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


text:
    8699.
    CITY OF CUTHBERT v. GUNN.
    1. The petition as amended set out a cause of action, and the court did not err m overruling the demurrers. The suit was based in part upon alleged negligence of the defendant in that a transformer connected with one of its electric lines from which a secondary current was conveyed to the house of the plaintiff “was of limited power” and incapable of reducing a current of more than 2000 volts to a safe voltage, on account of which an “overflow” of electric current on the primary line surcharged the line leading into her domicile, an.d inflicted upon her physical injuries. The court allowed an amendment setting up that the transformer was defective in that it was not supplied with oil; and the allowance of this amendment is complained of upon the ground that it set up a new and distinct cause of action. In its last analysis, the incapacity of the transformer to reduce the primary current of ■ high voltage, so. as to permit a safe current of low voltage to pass into the wires connecting with and intended to afford light to the plaintiff’s house, was the ground of negligence originally set forth, and the amendment merely set up an additional reason why the transformer was insufficient to insure the passage of only a safe current of electricity; and hence it did not set up another and new cause of action, but merely amplified the ground of negligence already alleged.
    2. It was not alleged that the municipality was negligent in failing to provide such approved apparatus in general use a's would be reasonably necessary to prevent injury to the plaintiff arising from an excess of current entering her house over the secondary wires, whether generated mechanically or by a thunderstorm, but the city was alleged to have been negligent in failing to maintain proper insulation on the ’.wires conveying the electricity, and in failing to provide a transformer ‘of sufficient capacity to reduce properly the current passing through it; and hence the charge of the court to the jury, to the effect that the municipality was “bound to provide such safeguards against danger as are best known and most extensively used,” was not harmful to the defendant and will not require a reversal.

      3. While the defendant set up in its answer .that the injury to the plaintiff was caused “by a stroke of lightning during a thunderstorm, the same being an act of God and for which this defendant is not liable,” and there was evidence to the effect that there was some electrical disturbance in the atmosphere on the day the plaintiff was injured, mani- . fested before and at the time of the injury by lightning, thunder, and otherwise, there was neither pleading nor proof to the effect that such electrical disturbance was so extraordinary and unprecedented as to come within the meaning of an act" of God against which the defendant was not required to guard; and hence the court did not err in refusing to charge the jury lhat an-act of God would relieve the defendant from liability. The defendant was under the duty to employ' such approved apparatus in general use as would be reasonably necessary to prevent injury to the plaintiff, when attempting to use the light it supplied for the purpose of illuminating the house she occupied, “arising from electricity which may be generated by a thunderstorm and strike the wires and be conducted thereby into the residence.”
    Decided December 14, 1917.
    Action for damages; from Eandolph superior court — Judge Worrill. March 10, 1917.

      George H. Perry, for plaintiff in error.

      Yeomans £ Wilkinson, James W. Harris, J. P. McDonald, contra.
   Wade, C. J.

It is pnly necessary to refer briefly to the second headnote above. The court instructed the jury that there is a duty of persons or “municipal corporations, operating an electric-light system for the purpose of transmitting electricity over its lines of wires and supplying light in and to the houses of patrons, of properly conducting and maintaining their wires, their poles, their transformers; .[and they] are bound to provide such safeguards against danger as are best known and most extensively used, and all necessary protection must be afforded to avoid casualties which may be reasonably expected.” This excerpt from the charge of the court is objected to upon the ground that it was for the jury to determine whether the defendant had exercised ordinary care in providing the apparatus actually employed, and that this charge did not require of the defendant the degree of diligence which is-exacted by law. In Columbus Railroad Co. v. Kitchens, 142 Ga. 677 (83 S. E. 529, L. R. A. 1915C, 570), the Supreme Court laid down the rule as follows': “Where an electric-light company maintains overhead wires from its plant to a residence of one of its patrons, for the purpose of supplying light to the house, the company is under the duty to employ such approved apparatus in general use as will be reasonably necessary to prevent injury to the house, or persons or property therein, arising from electricity which may be generated by a thunderstorm and strike the wires and be conducted thereby into the residence.” This court said, in Americus Gas & Electric Co. v. Coleman, 16 Ga. App. 17 (3), 18 (84 S. E. 493): “The following charge was error: ‘They are bound to provide such safeguards against danger as are best known and most extensively used, and all necessary protection must be afforded to avoid casualties which may be reasonably expected.’ The duty rested upon the defendant to use such safeguards against danger, in the construction and maintenance of its wires, poles, etc., as were prudent, usual, and customary; but the burden did not rest upon the defendant to employ the safeguards ‘best known and most extensively used.’ The defendant was bound to ordinary care and diligence, and was required to so construct its lighting system that persons proceeding along the streets and highways, according to the usual modes of travel, would not be liable to incur danger from currents of electricity-by contact therewith.” It is true that the Supreme Court in Columbus Railroad Co. v. Kitchens, supra, did make the following quotation from Heidt v. Southern Bell Telephone Co., 122 Ga. 474-478 (50 S. E. 361): “Persons or companies operating telephone and electric-light systems for the transmission of electricity upon and over public highways owe to the public the duty of properly constructing and maintaining their respective wires and poles; they are bound to provide such safeguards against danger as are best known and most extensively used, and all necessary protection must be afforded to avoid casualties which may be reasonably expected.” This statement by Mr. Justice Evans in the Heidt ease, supra, is based upon the authority of Higgins v. Cherokee Railroad, 73 Ga. 149, and Davis v. Augusta Factory, 92 Ga. 712 (18 S. E. 974), there cited. It will be found from an examination of the Higgins case, that the precise ruling therein was as follows: “A carrier of passengers is not obliged to foresee and provide against casualties which have not been known to occur before and which may not be reasonably expected. If it has availed itself of the best known and most extensively used safeguards against danger, it has done all the law requires.” In the decision in the Davis ease, supra, where the action was for the homicide of a minor employee who received injuries resulting in her death from certain machinery of the defendant which, “though not of the latest, safest, and most improved design, was nevertheless safe when properly operated,-” the court said: “It is sufficient if the machinery is,of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence.” In Southern Railway Co. v. Thompson, 129 Ca. 367, 369 (58 S. E. 1044), exception was taken to the charge of the court that if the engine set out the fire which burned the property of the plaintiff, “then the law would presume that it was negligently done, unless the company introduces evidence which shows that they did, through their agents, servants, and employees, exercise all ordinary and reasonable care and diligence, and that they had their engine properly equipped with the most modern and best-known appliances for the prevention of the setting out of fire.” In discussing this instruction Mr. Justice Lumpkin said: “The charge complained of in effect required the defendant to rebut the presumption against it by proving both the use of all ordinary and reasonable care and diligence and also that it equipped its engine ‘with the most modern and best-known appliances.’ This was too stringent.” This court, in Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (58 S. E. 413), said: “It is not incumbent upon persons or corporations using machinery in the prosecution of their business to procure the best and safest machinery which can be made. It is sufficient if the machinery is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. ‘No manufacturing business of business establishment is bound at its peril to make use only of the best implements and the best machinery and the safest methods.’ Cooley, J., in Michigan Cent. R. Co. v. Smithson, 45 Mich. 219 (7 N. W. 793; 1 Am. & Eng. R. Cas. 104).” See also Belhk v. Lee Roy Myers Co., 17 Ga. App. 684 (3) (87 S. E. 1089).

The cases last quoted from, or referred to above, support in principle the view that an instruction placing upon a municipality furnishing electric-lights or electric current the duty of not only employing “such approved apparatus in general use as would bo reasonably necessary to prevent injury to the house, person, or property therein, arising from electricity,” etc., but also the additional burden of using apparatus which must not only be thus reasonably safe, but must be likewise such as was “best known and most extensively used,”'is erroneous. In other words, under such an instruction, notwithstanding the apparatus actually used may have been of such a kind and quality as to preserve to the highest degree and in the most effective manner the safety of persons using the current or coming in contact with any part of the electric system, and though it might be far superior to any other similar apparatus employed by others, if it was not perchance such apparatus as happened to be not only reasonably safe but also the “best known and most extensively used,” the defendant could be held liable for employing it. In the case of Heidt v. Southern Bell Telephone Co., supra, the expression “they are bound to provide such safeguards against danger as are best known and most extensively used,” when taken in connection with the context, and considered in the light of the special facts of that ease, was doubtless correct; but it was not intended as a broad statement of the law touching the ^general duty resting upon those furnishing electricity, which would serve as a safe rule of diligence to be laid down for the guidance of a jury by a trial judge. Many things, as has often been said by the Supreme Court and this court, which find place in the opinions handed down by reviewing courts, may be accurate statements of the law governing the particular case under discussion, and .yet not furnish proper instruction for a jury in trying a similar case.

Proof that a municipal corporation operating an electric-light system provided such safeguards against danger “as are best known and most extensively used” might authorize a finding that it had' not been negligent in employing the particular apparatus actually used to prevent injury from the electrical current transmitted or supplied by the corporation; but no rule of diligence would require the municipality “to provide such safeguards against danger as are best known and most extensively used,” in order to relieve itself from the consequences resulting from defects in its electric apparatus or system, for the-apparatus or system actually employed might in fact be superior to and safer than similar apparatus or a different system “best known and most extensively used.” The employment of such safeguards against dangers “as are best known and most extensively used,” by a person or municipality operating an electric-light system, might relieve such, person or municipality from liabilty on account of injuries resulting from, defects in the apparatus employed to- safeguard the dangers current, and therefore .proof that apparatus coming within that description- had been used might constitute a good defense; but on the other hand, if the person or municipality exercised proper care and diligence in employing safeguards which would reasonably provide against such dangers, this would amply suffice, regardless of whether the apparatus employed was the “best known or most extensively used.”

However, the error in placing upon the defendant in this case the burden of providing such safeguards against danger “as are best known and most extensively used,” in addition to the burden of providing such apparatus in general use-as would be reasonably necessary to prevent the injury (Columbus Railroad Co. v. Kitchens, supra), could not be held to have influenced the jury in arriving at their verdict in favor of the plaintiff, when considered in the light of the pleadings and the particular facts developed at the trial; and therefore will not require a reversal. It will be borne in mind that no. recovery was sought upon the ground that the defendant had failed to provide safeguards of the proper kind and quality to prevent the alleged injury, and it was not alleged, in the petition nor was there any evidence to the effect that the apparatus, to wit, a certain transformer, provided by the defendant to safeguard against danger the consumers of the electric current furnished by the city, was not all that the exercise of the appropriate degree of care and diligence by the city required, and was likewise not such a safeguard against danger as was “best known and most extensively used.” Instead, a recovery was sought upon the distinct ground that (in addition to the danger arising from the alleged fact that the insulating covering had worn off from, some of the wires) the transformer through which the plaintiff received the current of electricity that injured her was riot sufficient in capacity to reduce a current of such high voltage as passed over the primary line on the occasion in question, and was not adequately charged or filled with oil, which still further diminished its reducing capacity; and the undisputed evidence tended to show that the transformer used was in fact as good as any generally employed, and was such a transformer as was “best known and most extensively used,” but, notwithstanding its quality and kind, it was insufficient to properly safeguard against danger on account of its small capacity and its oilless condition at the time. In other words, no harm was done to the defendant by instructing the jury that it was required to provide such safeguards against danger “as are best known and most extensively used,” when there was no evidence and no contention that the safeguards actually furnished were not in fact such as are best-known and most extensively used. Merely the capacity of the particular safeguard to protect against actual current coming over the wire at the time, and the condition of the first-class safeguard provided by the city, were in issue.

Taking the case as a whole, it appears that there was no reversible error, and that the verdict against the city was authorized by the evidence.

Judgment affirmed.

Jenlcins and Lulce, JJ., concur.


text:
    8707.
    Benson v. Georgian Company.
    Decided December 14, 1917.
    Complaint; from city court of Atlanta- — Judge Reid. March 13, 1917.
    The action was by W. H. Benson against the Georgian Company. The petition alleges: The defendant publishes newspapers at Atlanta known as The Georgian and Hearst’s Sunday American. It formulated and advertised, for the purpose of increasing the circulation of its newspapers, a plan which contemplated the distribution of- $18,000 in prizes to contestants furnishing the greatest number of names as subscribers to these newspapers in certain territory between specified dates; and the details and operation of the plan were confided by the defendant to the direction of a separate department of its business, designated as “The Georgian Home and Automobile Club,” which was placed under the management and control of one F. P. Blair.' The plan contemplated the allowance of a certain number of votes to be issued to each contestant for every subscription furnished, and the candidate having the largest number of votes in the entire contest was to receive the first prize, a house and lot, the one having the second largest number was to receive a Cadillac automobile, and the one having the third largest number was to receive a Studebaker automobile. The plan as advertised provided that the contest manager had the right to reject any nomination of candidates, and that the defendant had the right to change any plan or make any additions to its conditions that might be decided to be necessary to the interest and welfare of the candidates; and the defendant clothed Blair, as contest manager, with authority to manage the contest, change its conditions, and decide questions arising from its operation, and directed candidates to ask such questions of him. Blair, the contest manager, approached the plaintiff, stated these facts, and urged him to enter the contest, and said that if he would do so and would put up a sum of money to be named by Blair, he would be notified by Blair, before the conclusion of the contest, of the.amount necessary to win the first prize. Blair assured him that on account of war conditions the contest had been a failure and .only a few contestants had entered, and most of these" had retired, and that from his own knowledge of the work being done by the remaining contestants and of their votes, he (the plaintiff) would be certain to win the first prize by the investment of far less than a fourth of its value. To the plaintiff’s suggestion that he would not have time, to solicit the required number of subscriptions Blair replied that it would not be necessary for him to solicit any subscribers, that the object of the contest was to increase the number of subscribers appearing on the defendant’s books, that its newspapers were not interested in whether the subscribers were bona fide or fictitious, that it would be entirely acceptable to the defendant to have the plaintiff pay the amount charged as subscriptions, and furnish the defendant, through Blair, with a list of fictitious subscribers, obtained from any source agreeable to the plaintiff. Being reassured on this score by the statement of the manager of the contest, the plaintiff inquired as to the amount of money he would have to invest to obtain the house and lot, but, because of inability to take from his business the required sum, and for other reasons stated, he declined to enter the contest for the house and lot.' Blair thereupon urged him to enter into an arrangement by which the second prize could be secured, and assured him that the Cadillac automobile offered as the second prize, which was of the cash value of $2,115, could be acquired by him upon an investment of not more than $500, and that if under any unforeseen circumstances a larger sum should be necessary to acquire the automobile, the excess would be trivial, and the plaintiff (who resided outside of Atlanta and in Marietta, Ga.) would be informed by Blair what amount would be necessary for that purpose. He entered into the proposed agreement and proceeded in good faith to carry it out, and turned over to the defendant $252.90 in accordance with the agreement, but in a few days thereafter was informed by Blair that it would be necessary to pay the additional sum of $531.70 to acquire the automobile, and that if he should pay that sum it would be sufficient to acquire the automobile, and no further payment would be necessary. He thereupon paid this additional sum to the defendant. Blair then stated to him that he (the plaintiff) had acquired the Cadillac automobile so easily that it would be a shame for him to miss the chance to get at the same time, for little additional outlay, the third prize, a Studebaker automobile valued at $1,525, and that it could be bought for less than $500, that on account of the original conditions of the contest it would be necessary for the plaintiff to work through another contestant, and suggested that he arrange with a certain contestant to use her name and be credited with the amounts paid by her. He entered into the suggested arrangement, paying her $50 for the votes she had obtained, with the agreement that when these votes, together with the sum to be paid to the defendant, should acquire the automobile, it would be his property; and Blair was informed of this transaction and approved it. Later the defendant sent to the plaintiff an agent who advised him that if he desired the Studebaker car it would be necessary for him to add to; these votes cash payments for subscriptions amounting to $451.50, which sum would be sufficient, but that if any slight additional sum should be necessary .to acquire the car, he would be notified by.Blair; and on this statement he paid to the defendant $451.50. , Shortly before the close of the contest he was informed by Blair that a mistake had been made in the figures previously furnished to him, and that it would be necessary for him to pay more money to acquire the automobiles, but that an additional payment of $359.60' by him would result in the acquisition of the Cadillac automobile, and a payment of $436.40 would acquire the Studebaker automobile, that these figures were final and the payment-of these sums would insure the delivery of the automobiles to him; whereupon he paid these additional sums to the defendant. On the termination of the contest he discovered that the Cadillac automobile had not been awarded to him, and the Studebaker automobile had not been awarded to him or to the contestant with whom he had made the arrangement stated above, but both automobiles had been awarded to other persons. He thereupon demanded of the defendant the performance of said contracts or the return of the sums invested by him, and was informed by its circulation representative, a Mr. Chandler, that the subscriptions sent in by him were not regular, for the reason that some of them did not appear to be bona fide and others were directed for delivery to agents of the defendant, and the defendant did not desire its agents to be supplied with papers through the contest. The names furnished by the plaintiff to the defendant for subscriptions, accompanied by the stipulated price, and which were taken from directories, were furnished to the said contest manager in alphabetical order, and the said Blair changed the order of the names, and directed, authorized, and accepted the subscriptions as tendered by the plaintiff during the contest. The plaintiff explained that the method of handling these subscriptions had been authorized by Blair, and stated to Chandler that he was entitled to a return of the money paid by him for the subscriptions, as they had been rejected by the defendant as irregular, and he demanded a return of the money so paid, amounting to $2,032.10, but the demand was refused by the defendant, and the-money has never been returned to him. The plaintiff prays judgment for the amounts so paid, with interest.
   Jenkins, J.

“Where parties are engaged in illegal transactions, whether malum prohibitum or malum in se. the courts of this State will not interpose to grant any relief. In such cases the rule is, for the court to leave the parties where it finds them, no matter whether the illegality of the contract appears from the plaintiff’s ease, or is set up by way of defense.” Bugg v. Towner, 41 Ga. 315; Howell v. Fountain, 3 Ga. 176 (46 Am. D. 415); Puckett v. Roquemore, 55 Ga. 235; Garrison v. Burns, 98 Ga. 762 (26 S. E. 471); Martin v. Bartow Iron Works, 35 Ga. 320 (Fed. Cas. No. 9157); City of Dawson v. Waterworks co., 106 Ga. 696 (32 S. E. 907); Postelle v. Rivers, 112 Ga. 850 (38 S. E. 109); Sessions v. Payne, 113 Ga. 955 (39 S. E. 325); Harris v. Barfield Music House, 18 Ga. App. 444 (89 S. E. 592); Barfield Music House v. Harris, 20 Ga. App. 42 (92 S. E. 402); Jones v. Crawford, 21 Ga. App. 29 (93 S. E. 515). «The allegations made by the plaintiff’s petition bring this suit clearly within the rule above stated; and there was no error in sustaining the demurrer.

Judgment affirmed.

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

. The defendant demurred, on the ground that no cause of action was set out in the petition, because: “ (a) It appears that the defendant [plaintiff?] was endeavoring to secure in a fraudulent manner private information in reference to the standing of other contestants, which information was not to be furnished to said contestants, and to obtain in this manner an unfair advantage over such other contestants. (&) The allegations of. the petition are to the effect that petitioner, by wrongful and fraudulent conduct, endeavored to defraud all other contestants and this defendant, and the alleged secret agreement was illegal, fraudulent, and in contravention of public policy, and therefore void.” The judge of the city court held.that the suit was “based on a fraudulent contract in which both parties participated,” and sustained the demurrer and dismissed the petition.

Hugh Rowell, Brewster, Rowell & Reyman, for plaintiff,

cited: Goodhart v. Mission Publishing Co., 18 Cal. App. 394 (123 Pac. 210); 6 Ruling Case Law, 710, 712; Smith v. DuBose, 78 Ga. 413; Phenix Ins. Co. v. Clay, 101 Ga. 331; Mut. L. Iris. Co. v. Durden, 9 Ga. App. 797'(3), 800; Equitable Loan Co. v. Waring, 117 Ga. 599 (1), and cases cited in the decision in this ease.

McDuffie & Richardson, for defendant,

cited:' Bugg v. Towner, 41 Ga. 315 (1); Puclcett v. Roquemore, 55 Ga. 235; Rowell v. Fountain, 3 Ga. 176; Garrison v. Burns, 98 Ga. 762, 764-5;- Postell y. Rivers, 112 Ga. 850; Penal Code (1910), § 719; 9 Cyc. 468; 1 Paige on Contracts, § 402; Crosby y. DeGrdffenreid, 19 Ga. 290; Reineman v. NeWman, 55 Ga. 262; Bagwell v. Johnson, 116 Ga. 464; Sewell y. Norris, 128 Ga. 824, 827; Watkins y. Nugen, 118 Ga; 372-3; Jerome v. Bigelow,- 66 111. 452 (16 Am. R. ¿97); Bloss v. Bloomer, 23 Barb. 604; Máteme v. Horwitz, 50 N. Y. Sup. Ct. 41, aff’d in 101 N. Y. 469; 6 Ruling Case Law, 712, sec. 120. Goodharty. Mission Publishing Co., supra, distinguished.


text:
    8711.
    Bank of Wrightsville v. Four Seasons et al.

    Decided December 14, 1917.
    Complaint; from city court of Dublin — Judge Flynt. • March 10, 1917.

      Moye & Shurling, B. B. Blount, for plaintiff.

      Burch & Daley, for defendants.
   Jenkins, J.

Under the provisions of the bankruptcy act of 1867 (14 Stat. 517), a debt provable in bankruptcy was discharged, though the name of the creditor was omitted from the schedule, if the omission was not wilful nor fraudulent, even though the creditor had no notice or knowledge of the proceedings. Broadway Trust Co. v. Manheim, 14 Am. Bkr. R. 122 (47 Misc. 415, 95 N. Y. Supp. 93); Tyrrel v. Hammerstein, 6 Am. Bk. R. 430 (33 Misc. 505, 67 N. Y. Supp. 717). But under the provisions of the present national bankruptcy act of 1898 (30 Stat. 544), a discharge in bankruptcy releases a bankrupt from all his provable debts except those specifically mentioned by section 17 of the act, which includes' those that have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or knowledge of the proceedings in bankruptcy. Collier..on Bankruptcy (10th ed.), 400 (c); Remington, on Bankruptcy, §§ 2777-2780; Hayer v. Comstock, 7 Am. Bkr. R. 493 (115 Iowa, 187, 88 N. W. 351); In re Monroe, 114 Fed. 398 (7 Am. Bkr. R. 706); Zimmerman v. Ketchum, 11 Am. Bkr. R. 190 (66 Kan. 98, 71 Pac. 264); Broadway Trust Co. v. Manheim, supra; Custard v. Wigderson, 17 Am. Bkr. R. 337 (130 Wis. 412, 110 N. W. 263, 10 Ann. Cas. 740); Finnell v. Armoura, 26 Am. Bkr. R. 802 (39 Utah, 316, 117 Pac. 49); Marshall v. English-American Loan Co., 127 Ga. 376 (56 S. E. 449). It being admitted in the court below that the cashier of the plaintiff bank had actual knowledge of such bankruptcy proceedings, and had accepted such notice as true, and generally discussed the fact with others in ample time to have proved his debt against the bankrupt, the direction of a verdict in favor of the defendants was not erroneous;

Judgment affirmed.

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