author: Jenkins, J.

text:
    9915.
    ARMINGTON & SONS v. STATE OF GEORGIA.
    In a statutory proceeding to condemn a vehicle illegally employed in the transportation of intoxicating' liquors, where the owner of the vehicle had conditionally sold it to the party engaged in the illegal transaction, but under the terms of the contract had reserved title in himself until full payment of the purcliase-priee should be made, the mere fact that the contract had not been recorded would not defeat the seller’s claim of title under his reservation. Moreover, in this case, a careful examination of the record fails to disclose sufficient evidenco to authorize the judgment rendered by the trial judge, who by agreement heard the case without the intervention of a jury; since the proof failed to show that the automobile was at the time of seizure being used for the purpose and in the manner prohibited by the statute, as alleged in the petition to condemn. ^
    Decided July 17, 1917.
    Condemnation under liquor law; from city court of Macon—• Judge Guerry. May 25, 1918.
    On May 4, 1918, a police officer of the city of Macon seized a Buick automobile which contained 150 or 175 pints of whisky. At the time of the seizure it was near a vacant house, and not upon a public highway. No one was in possession of the automobile, nor had the officer seen any one driving it, but he had noticed its tracks leading from a public highway to the place where it was found. After seizing it the officer reported the fact to the solicitor of the city court of Macon, and on May 7, 1918, condemnation proceedings were instituted in that court under the provisions of section 20 of the act of 1917 (Acts 1917, Ex. Sess., p. 16). The identity of the owner not being known, advertisement was made pursuant to the statute. On May 13, 1918, H. T. Arming-ton & Sons, a business concern of Jacksonville, Ela. (whether a corporation or partnership is not disclosed), interposed an intervention wherein they set up that on January 31, 1918, they had in Duval county, Florida, sold the automobile and delivered possession thereof to one J. B. Bryant, taking from him a conditional-sale contract wherein title to the automobile was retained in them until payment of the full purchase-price by Bryant; that there remained unpaid the sum of $568.13, and that any use of the automobile in violation of the law was without their knowledge or consent. On the trial the officer who made the seizure testified: “I am a police officer of the city of Macon, and as such have power and authority to make arrests. On the 4th day of May, 1918, I seized the automobile in controversy in this county. I guess there must have been between 150 and 175 pints of whisky in it, contained in pint bottles. Nobody was in possession of the automobile. I do not know who had been in possession of it. The whisky was in the back of the automobile. . . I have seen a man named J. B. Bryant in possession of this automobile at occasional intervals for the past 3 or 4 months. . . When I seized the automobile it was not on a public highway of this State, but was close to a vacant house. I could see the tracks of the automobile going from the public highway to where the automobile stopped. I did not see the automobile when it was driven there, and do not know how long it had been standing there.” Another witness for the State testified that he had examined the automobile, and that it was worth $1,000. H. B. Howell testified that he was sales manager for H. T. Armington & Sons, and was familiar with the transaction in which the automobile was sold by them to Bryant under a title-retention contract, upon which his name appeared as a witness; that he conducted the sale on January 31, 1918, that since that time he had had charge of collecting the installments due under the contract, and that the credits entered upon the back thereof represented the payments received by him, and there was a balance due of $568.13 under the contract; that H. T. Armington /k Sons had no knowledge that any one was using or had used the automobile for violating the prohibition law of the State of Georgia, or for transporting whisky or any intoxicating beverage, contrary to the laws of- Georgia, and did not know that the automobile had ever been carried from Duval county, Florida, in violation of the terms of the contract of purchase; that if Bryant or anyone else used the automobile for that purpose, or carried it out of Duval county, Florida, it was' without the knowledge or consent of the respondents. The respondents then introduced in evidence the title-retention contract (which, however, had never been recorded), whereby H. T. Armington & Sons retained title to the automobile in controversy until payment of the full purchase-price by Bryant.
    The judge of the city court, who tried the case without a jury, found in favor of the State, and entered up the following judgment: “The court having found for the State, it is considered and adjudged that the claim of title [to] one six Buiclr automobile, Motor No. 162135, by the respondents, Armington & Sons, be and the same is hereby denied and disallowed, and that the State may further proceed as in such cases provided by law.” To the verdict and judgment thus rendered, Armington & Sons excepted, upon the grounds that “said verdict and judgment is contrary to law, contrary to evidence, and without any evidence to support it.”

      Walter DeFore, James 0. Estes, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Jenkins, J.

(After stating the foregoing facts.) The respondents claimed title to the automobile in controversy under a title-retention contract executed- in the State of Florida, which had never been recorded; and set up in their intervention that under the statutes of Florida it was not necessary that such a contract be recorded in order to be valid as against all parties. Such seems to be the law of Florida, for the Supreme Court of that State, in Campbell Co. v. Walker, 22 Fla. 412 (1 So. 59), held as follows: “1. An agreement in writing to sell personal property, the title to which is reserved by the seller until the purchase-money is paid by the buyer, is a conditional sale, and does not vest title in the buyer until the performance of the condition, to wit, the payment of the purchase-money, notwithstanding that at the time of making said agreement possession of the property is delivered by the seller to the purchaser. 2. Neither the act of the legislature of January 30, 1838, nor of January 8, 1853 (MeClell. Dig. p. 765, §§ 1, 2), requires such an instrument to be recorded. . . 4. An agreement such as is described in the first headnote is valid as against subsequent creditors and bona fide purchasers for valuable consideration without notice.” That case was cited and followed in American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116 (47 Sou. 942, 16 Ann. Cas. 1054). And in Georgia the fact that such a title-retention contract has not been recorded will not defeat the claim of title based thereon by a respondent in a proceeding of this sort. See Shrouder v. Sweat, 148 Ga. 378 (96 S. E. 881); Whites v. State, 23 Ga. App. 174 (98 S. E. 171). The trial court therefore erred in finding and adjudging that the claim of title of the respondent in this case to the automobile in controversy be "denied and disallowed.”

Furthermore, the petition to condemn alleges that the automobile in question was "a vehicle and conveyance used on the public roads and private ways of said State, in said county, and at the time said automobile was seized said automobile was being used in conveying between 150 and 175 pints of whisky, contained in pint bottles, said whisky being liquors and beverages the sale and possession of which, is prohibited by law.” The portion of section 20 of the act of 1917 material to a consideration of this case is as follows: “All vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State ... in conveying any liquors or beverages, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other arresting officer, who shall report the same to the solicitor of the county, city or superior court having jurisdiction in the county where the seizure was made, whose duty it shall he within ten days from the time he received said notice to institute condemnation proceedings in said court by petition, a copy of which shall be served upon the owner or lessee if known, and if the owner or lessee is unknown, notice of such proceedings shall be published once a week for two weeks in the newspaper in which the sheriff’s advertisements are published. If no defense is filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. Should it appear upon the trial of the case that said vehicle, conveyance, boat or vessel was so used with the knowledge of the owner or lessee, the same shall be sold by order of the court after such advertisement as the court may direct.”

In our opinion it is altogether possible that the vehicle had been, and even more probably would soon have been, used in an illegal manner upon the highways of this State; but the statute, being summary in its nature, must be strictly construed (Phillips v. Stapleton, 23 Ga. App. 303, 97 S. E. 885); and after a careful examination of the evidence we are of the opinion that the evidence as we find it is legally insufficient to authorize the judgment rendered, and that it failed to show that the automobile had been or was being used upon the highways for the purpose and in the manner prohibited by the statute. The sum total of the evidence of the officer who made the seizure is to the effect that the automobile, when found, was not upon a public highway or a private way, but near a vacant house, and that he had not seen when or by whom it had been placed there, but that when thus found it contained between 150 and 175 pints of whisky. Thus, it was not shown that the automobile was “used” on any of the “public roads or private ways” of this State “in conveying” any of the prohibited liquors. While the officer did testify that he saw where the -tracks of the automobile led from a public highway to the place where it was found near a vacant house, it is not shown that while on the public highway it contained the whisky found therein. It is just as reasonable to presume that it did not, and that it was brought there for the purpose of receiving the whisky at that point, to be later conveyed to some other point. If so, the seizure was premature. The verdict and judgment, being thus without evidence to support it, is contrary to law.

Judgment reversed.

Wade, 0. <7., and Luke, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    9956.
    WATKINS v. WOODBERY et al.

      1. Under the rulings made by this court in Arnold v. Water Power & Mining Co., 22 Ga. App. 504 (96 S. E. 343), and by the Supreme Court in the same ease on certiorari, 149 Ga. 107 (99 S. E. 382), the motion to dismiss the bill of exceptions in this case is overruled.
    2. The first assignment of error in the bill of exceptions, complaining of the admission of certain evidence, upon the ground that it was immaterial and irrelevant, is without merit, since the evidence admitted was relevant to show the history of the transaction involved; but even if immaterial, its admission is not shown to have been harmful. Unless a reasonable likelihood of a prejudicial effect appears, the admission of evidence merely immaterial will not authorize the setting aside of a verdict and the grant of a new trial. Armour Fertiliser Works v. Dwight, 22 Ga. App. 144 (3) (95 S. E. 746).
    3. The assignments of error as to the exclusion of certain testimony are without merit. Whether one of the plaintiffs in a suit for contribution may have in point of fact procured from one of the joint makers of the notes, other than the defendant, the amount contributed by him towards the discharge of the joint obligations, by giving to that joint maker his personal note therefor, and whether that note has ever been paid, are matters resting solely between the plaintiff and the one from whom he borrowed the money thus contributed. So far as the defendant here is concerned, the original joint obligations have been discharged, and he is no longer liable thereon; and whether the plaintiff borrowed the amount contributed by him, and, if so, whether it has ever been repaid to the one from whom it was borrowed, are questions with which the defendant has no concern. Larsen v. Slette, L. R. A. 1915A, 898, and note (125 Minn. 267, 146 N. W. 1094); Iíillas v. Fuller, 143 Y. Supp. 15; 13 C. J. 823, § 5, note 32 (e) ; Miller v. Perkerson, 128 Ga. 465 (3) (57 S. E. 787). The questions which the court refused to permit the witness to answer were propounded merely for the purpose of showing that the note given by the plaintiff for the money borrowed and contributed by Mm towards the discharge of the original joint obligations had never been paid, and not that the plaintiff had not actually contributed towards the discharge thereof the amount alleged.
    4. The other excluded evidence offered by the defendant, tending to show an indebtedness upon the part of one of the plaintiffs to one of the banks for whose benefit the original joint obligations were incurred, was immaterial to the issues involved under the pleadings, and the court did not err in excluding it.
    5. Under the well-settled rule that, in a ease where the plaintiff’s or the defendant’s testimony is contradictory in itself, vague, or equivocal, it must be construed most strongly against him (Bussey v. Grantham, 23 Ga. App. 709 (99 S. E. 236) ), the evidence in this case demanded a verdict in favor of the plaintiffs, and the court did not err in so directing.
    Decided July 17, 1919.
    Complaint; from Gilmer superior court—Judge Morris. October 30, 1917.

      A. H. Burtz, D. W. Blair, for plaintiff in error. •

      William Butt, Tye, Peeples & Tye, contra.
   Jenkins, J.

-It is only the fifth headnote which is thought to require elaboration. Sam Tate, W. H. Woodbery, and E. W. Butt brought suit against E. W. Watkins, alleging that the plaintiffs, together with the defendant, were joint makers of certain notes; that the plaintiffs, together with all the other makers except Watkins, had paid off the notes while Watkins had paid nothing, and that by reason of these facts Watkins was liable to the plaintiffs in designated sums by way of reimbursement and contribution. Watkins admitted signing the notes, but denied liability thereon, alleging that he had never received any consideration; and alleged that he sigped the notes at the solicitation of the plaintiffs, and with the understanding then had between him and the plaintiffs that "he was not to be liable” thereon; and that he was a mere accommodation maker or indorser. The present suit proceeded in the names of Woodbery and Butt only, it having been previously disposed of as to the plaintiff Tate. The record shows that four certain banks in north Georgia and one in Tennessee, among them being the North Georgia National Bank of Blue Bidge, Ga., and the Gilmer County Bank of Ellijay, Ga., were, in the fall of 1911, about to fail. The defendant was at the time a director and stockholder of the North Georgia National Bank, president of the Gilmer County Bank, and also a depositor. The plaintiffs and the defendant, together with thirteen other persons, executed two notes, each dated November 1, 1911, one for $75,000 and the other for $25,000, for the purpose of raising money to preserve the solvency of these banks. The $100,000 was thus raised, and was used for the benefit of each of the five banks. This $100,000 indebtedness, evidenced by the two notes mentioned above, was renewed from time to time, by the giving of renewal notes, and finally payment was made of the last renewal notes, which were each joint and several notes, and each signed by said sixteen persons, Watkins, the defendant, being one. To the payment of the $100,000 each of the sixteen persons contributed, with the exception of the defendant, who has paid nothing. The contributions made by some of the fifteen, were quite small, three of them being insolvent. Tate paid $35,538.88, Woodbery $25,000, and Butt $11,000. These three were the only persons of the fifteen who paid more than would have been their proportionate share, and they brought suit against Watkins for contribution. No question as to misjoinder of parties plaintiff was raised, and, as already stated, the case had been disposed of as to the plaintiff Tate, and this trial involved only the amounts claimed by Woodbery and Butt, being $1,445.58 and $278.91 respectively. At the close of the testimony the court, upon motion, directed a verdict in favor of the plaintiffs, and the defendant excepted.

That the plaintiffs, if entitled to recover at all, are entitled to the amounts claimed by them respectively is not questioned, the contention of the defendant being that he was merely an accommodation maker or indorser, that he received none of the consideration, and that he was induced to ’ sign the notes by the representations of the plaintiffs that he would never have them to pay or be 'called upon to pay them. The fact that the banks for whom the money was borrowed (of one of which the defendant was a stockholder and director, and of another of which he was president and a depositor) received the money thus borrowed is undisputed. The defendant’s plea of failure of consideration is therefore not supported by the evidence. Granting, for the sake of the argument only, that the defendant was merely an accommodation maker or indorser, when accommodation parties get for and through another the exact consideration which they contemplate it is the same as if they receive it themselves, and a plea of want of consideration is not good. Farrar v. Bank of New York, 90 Ga. 333 (17 S. E. 87). This leaves only the defense that the defendant was induced to sign the notes by the representations of the plaintiffs that he would never have the notes to pay.

Were this a suit against the defendant upon the notes themselves by the payees thereof, the defendant having admitted signing the unconditional promissory notes, and the undisputed evidence showing that he received the consideration contemplated at the time he signed them, the plea of the defendant, attempting to set up such a promise on the part of the payees, would constitute no valid defense to the action; for it would amount to nothing more than an effort to vary the terms of the unconditional written promise to pay, by setting up a contemporaneous parol agreement contrary thereto, with no allegation that such an understanding was omitted from the notes by fraud, accident, or mistake. See Boynton v. Twitty, 53 Ga. 214; Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86); Proctor v. Royster Guano Co., 21 Ga. App. 617 (3); (94 S. E. 821); Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217). But in a suit for contribution from his co-obligors by one who has paid the joint obligation, the right of contribution does not rest on the original contract, and the note thus paid is not the basis of the action for contribution. The right of action has no strict connection with the promissory notes, but arises out of the relation created thereby on a common obligation, and the contract implied therefrom of discharging the common obligation equally. The co-obligor’s right of action for contribution arises at the time he parts with his money in discharging, in whole or in part, the joint liability, and the note may afford evidence of the sum of money advanced by the paying co-obligor, and afford a basis for determining the aliquot portion thereof for which the defendant may be liable by reason of his implied promise to pay. Sherling v. Long, 122 Ga. 797 (50 S. E. 935); Hall v. Harris, 6 Ga. App. 822 (65 S. E. 1086); McLin v. Harvey, 8 Ga. App. 360 (69 S. E. 123). There is no contention or issue made upon the proposition that the plea of the defendant, setting up a parol understanding to the effect that the defendant signed the notes by virtue and by reason of the verbal warranties and assurances of the plaintiffs that no injury or loss would accrue thereon, fails to set forth a good defense to the suit for contribution; and without passing upon this proposition, which is not raised, direction-is given to the ease upon the ground that the evidence given in behalf of defendant was insufficient to sustain his plea as made.

As to the plaintiff Butt, there was absolutely no evidence to sustain the plea. As to the plaintiff Woodbery, while the defendant testified that Woodbery said to him, “Now you will never have a cent of it to pay—never even be called on,” and, “But for the statement of Mr. Woodbery that I wouldn’t be called on to pay these notes, I would not have signed them,” and though he further testified, and in the same connection, “What caused me to sign these original two 'notes for twenty-five and seventy-five thousand dollars each was representations made by general talk arid representations made by Mr. Woodbery. . . As to inducements held out by Mr. Woodbery that induced me to sign these notes, Mr. Woodbery was addressing a crowd in the hall of the banking building and I was very slow about signing, in fact I wasn’t signing; he said, ‘Now you will never have a cent of it to pay—never even be called on.’ There were several in the room, I don’t remember just who and when he said that. We had done quite a heap of talking about it heretofore, and it was understood that if we could get enough signers to make one hundred thousand dollars for the purpose of taking care of the situation that we wouldn’t have anything to pay, that it was only a matter of accommodation—that the banks would go on and make the interest—keep the .interest paid as long as those banks wanted to carry it, and then the banks would pay it; that was the general talk among the directors [of whom defendant was one] generally. Then Mr. Woodbery, in order as I thought to convince me, says, ‘You will never have a cent of that to pay—and will not even be called on to pay,’ ” he further testified, “I couldn’t say just who was present when Mr. Woodbery made these representations to me, but I think a good many of the directors were there. That was my idea, but I wont undertake to say just who. I think Mr. Tate was there, and I know several others. The talk and general supposition was that they thought they wouldn’t have to pay these notes, as I suggested, the way Mr. Woodbery made the statement.”

It will thus be seen that, taking the defendant’s own testimony, which is vague and equivocal, and construing it most strongly against him, as we must, it is not shown that the statement of Woodbery was a positive assurance or guaranty, but it appears to have been merely a statement of his opinion, based upon the assumption that the banks themselves would be able to repay the money thus borrowed.” It follows, therefore, that unless the money was paid by the banks, the signers of the notes must have known that they would be liable therefor, and must have so understood at the time the notes were signed. Furthermore, all this testimony as to these representations has reference to the time when the defendant signed the two original notes. The defendant does not claim that any such representations were made at the time he signed the renewal notes, the payment of which is the basis of the present suit, but, to the contrary, he testifies, “I signed the renewals just anywhere—most of them up here. After I had signed one I thoroughly understood a renewal was quite necessary, because I was in for the money anyhow.” It is thus shown that at the time the defendant signed the renewal notes, no representations were made to him by the plaintiff Woodbery, but, so far as appears from the record, they were signed voluntarily by the defendant. See, in this connection, McKee v. Hurst, 21 Ga. App. 571 (3) (94 S. E. 886). In our opinion the defendant failed to prove his defense as made, and the trial court properly directed a verdict in favor of the plaintiffs.

Judgment affirmed.

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


author: Luke, J.

text:
    10002.
    Vickers v. Robinson et al.

   Luke, J.

“The relation of landlord and tenant, either by express contract or by legal implication, is an essential basis of a distress warrant.” Hearn v. Huff, 6 Ga. App. 56 (64 S. E. 298). Where, therefore, a counter-affidavit denies in terms of the statute that the sum distrained for is due and specially denies that the relation of landlord and tenant exists, it sets up a sufficient defense to the proceeding by distress warrant. But where, as in this case, the distress warrant is returnable to a court without jurisdiction to grant affirmative equitable relief, and, by way of denying the relation of landlord and tenant, the counter-affidavit further sets up the full terms of the alleged contract of purchase, and the defendants specially pray “that the court will enforce their said contract of purchase against the said plaintiff in distress warrant and that a verdict of the jury and a decree of the court may be framed in the premises, providing for and requiring said plaintiff in said distress warrant to stand to, abide by, and carry out the said contract of sale of the, aforesaid described tract of land to these defendants in distress warrant,” it is error to overrule a timely motion by the plaintiff to strike this prayer, on the ground that it seeks relief beyond the jurisdiction of the trial court to grant. Butler v. Holmes, 128 Ga. 333 (57 S. E. 715).

Decided July 17, 1919.

Distraint; from city court of Wrightsville—Judge Blount. July 6, 1918.

A. L. Hatcher, B. H. Moye, B. T. Rawlings, for plaintiff in error.

B. L. Stephens, contra.

2. The error pointed out above renders all subsequent proceedings in the trial court nugatory.

Judgment reversed.

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


author: Wade, C, J.

text:
    10035.
    Chapman v. Grizzard.
    Decided July 17, 1919.
    Claim; from city court of Carrollton—Judge Beall. June 20, 1918.

      Winfield P. Jones, Raymond RoMnson, for plaintiff in error.

      Buford Boykin, contra.
   Wade, C, J.

The various exceptions to the charge of the court are without substantial merit, there was evidence to authorize the verdict returned, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    10037.
    ROY v. GEORGIA RAILROAD AND BANKING COMPANY et al.

    A covenant not to sue one jointly liable will not release any one other than the one with whom it is entered into.
    Where by accident, mistake, or fraud a writing does not speak the truth, it may be reformed and corrected and be made to speak the truth.
    In this ease the defendants may introduce in evidence the original writing as well as such other evidence as may be competent by way of attack on the reformed and alleged corrected covenant not to sue; and it is a question for the jury whether the plaintiff released as pleaded by defendant, or merely covenanted not to sue.
    The court erred in sustaining demurrers to the plaintiff’s amended petition, and in directing a verdict for the defendants.
    Decided July 17, 1919.

      Action for damages; from city court of Madison—Judge Anderson. August 31, 1918.

      Percy Middlebrooks, Samuel II. Sibley, for plaintiff.

      McDaniel & Black, Gumming & Harper, for defendants.
   Luke, J.

The plaintiff in this case has had a long and no doubt an anxious fight with those who she claims have by their negligence damaged her. This court in Roy v. Georgia Railroad &c. Co. 17 Ga. App. 34 (86 S. E. 338), gave her hope by determining her suit to be good as against demurrer in so far as several of the defendants were pleaded liable. When her case in due course came on for trial, the defendants amended their defenses and claimed that she had released a joint tort-feasor by entering into the following agreement: “In consideration of the sum of two hundred fifty ($350) dollars, received by me, this 3nd day of Oct., 1913, I hereby release and discharge Empire Cotton Oil Company, Madison, Ga., of and from any and all claims which I now have or may have hereafter, by reason of personal injuries sustained by my son, J. A. Eoy, resulting in his death, on or about the 11th day of Sept., 1913, or of any cause, matter or thing whatsoever. Eelease. Witness my hand and seal. Mrs. A. G. Eoy (L. S.) C. L. C. Thomas, Witness, Madison, Ga. P. B. Speed Jr., Witness, Madison, Ga.” Demurrers to the pleas were overruled, and the plaintiff offered an amendment to the petition, in which amendment she alleged that her agreement and receipt to Empire Cotton Oil Company, while purporting to be a release, was in fact not a release, for the reason that neither she nor the Empire Cotton Oil Company ever regarded the death of her son as due to any negligence of his employer, the Empire Cotton Oil Company, and that the money received by her as evidenced by her written receipt was but a gratuity, and not an effort to release or sell her claim, and at most was only a covenant not to sue; and in the amendment she sought a reformation of the receipt given, so as to make it speak the truth. Demurrers to the amendment were sustained. She then filed a petition in the superior court, praying the aid of equity, to the end that the receipt be reformed, modified, and molded so as to speak the truth and not be such a release as would defeat her remedy against the others she was suing for the tort committed. In the meantime the Empire Cotton Oil Company agreed with her contention, and in lieu of the first writing the following writing was entered into as a reformation of the first:

"Whereas on October 2, 1913, Mrs. A. G. Boy, gave to Empire Cotton Oil Co. a paper in words as follows: Tn consideration of two hundred and fifty dollars ($250) received by me this second-day of October, 1913,1 hereby release and discharge Empire Cotton Oil Company, Madison, Ga., of and from any and all claims which I now have or may have hereafter, by reason of personal injuries sustained by my son, J. A. Boy, resulting in his death, on or about the 11th day of September, 1913, or of any matter or thing whatsoever. Witness my hand and seal. Belease. Mrs. A. G. Boy. C. L. C. Thomas, Witness. P. B. Speed Jr., Witness.’ And whereas at said time it was not considered that said Empire Cotton Oil Company was liable to Mrs. A. G. Boy in the premises, nor was it the purpose of either party to appraise her injury or satisfy the same, but it was the purpose of the Empire Cotton Oil Company to pay her said sum in the nature of a gratuity, asking only that she agree not to sue or hold said Empire Cotton Oil Company responsible, and an agreement having the effect of relieving said Empire Cotton Oil Company from any suit by Mrs. Boy, without affecting her right to hold others responsible for her son’s death that might be responsible therefor, was intended by both parties, but by accident and mistake of both parties, as to the legal effect and operation of the words used, the language above quoted was used, which it is now claimed operates to release the persons really responsible, if any persons are responsible: Now in consideration of the premises, and in voluntary reformation of said instrument, to express the true intent of the parties thereto, the same is made to read as follows: “In consideration of two hundred and fifty dollars ($250) received by me this second day of October, 1913, I hereby agree not to sue Empire Cotton Oil Company, Madison, Ga., on account of any or all claims which I may have or may hereafter have against it, by reason of personal injuries sustained by my son, J. A. Boy, resulting in his death on or about Sept. 11, 1913, or any other matter or thing whatsoever; not relieving or releasing any other person who may be liable therefor. Witness our hands and seals this August 8, 1916. Empire Cotton Oil Co., by H. E. Watkins, Vice Pres. (L. S.) Mrs. A. G. Boy. (L. S.) M. E. Keeler, Secty. Empire Cotton Oil Co. [Corporate Seal].”

This branch of her cause then by due course was determined by the Supreme Court, and in the decision of that court (147 Ga. 349, 94 S. E. 218) it was said: “The plaintiff applied to the Empire Cotton Oil Company for a voluntary reformation of the contract, and that company promptly executed an instrument in conformity with the alleged intentions of the parties to the original contract of release, which the plaintiff alleges was a mere agreement not to sue or hold the Empire Company responsible. The contract as thus reformed was duly pleaded in the city court, and the plea was rejected. The case now stands for trial in the city court of Madison. At that stage of the litigation the plaintiff filed an equitable petition in the superior court, seeking (1) To enjoin the' defendants from interposing the alleged release as a defense in the city court of Madison. (2) That the release be reformed ‘as against the railway companies, in accordance with the voluntary reformation thereof by the Empire Cotton Oil Company/ (3) That the controversy pending in the city court of Madison be tried and determined in the superior court of Morgan county; and that plaintiff have a general judgment against the defendants. While the Empire Cotton Oil Company is named as one of the defendants in the equitable petition, no relief of any kind is prayed against that company. The petition specifically alleges that the Empire Company has voluntarily reformed the instrument. The defendants filed demurrers and answers, attacking the petition for failure to state a cause of action. They also denied the jurisdiction of the court, on the ground that neither of the defendants against whom substantial relief is prayed is domiciled in Morgan county, one company having its domicile in Kichmond county, and the others being non-residents of the State, with no office or agent in Morgan county. The primary purpose of the equitable proceeding is to reform, the release. Without this it is manifest, and indeed must be conceded, that the suit would be barren and purposeless; for in other respects it can be tried as favorably to the plaintiff in the tribunal first selected as in the last. Without reformation the paper would be as fatal to the recovery in the one court as in the other; and therefore, unless the reformation can be had, there is no basis for the equitable jurisdiction of the superior court. The paper having been voluntarily reformed already in accordance with the original intention of the parties, a court of equity could do no more than has been done. It would be a vain thing for a court of equity to solemnly decree that third parties must do that which has been voluntarily done. A court of equity can not adjudicate what shall be the effect of a contract as to third persons who took no part in executing the same, by decreeing a reformation as to them. The railroad companies were not parties to the alleged release. It is so alleged in the petition. It was a paper executed between the plaintiff and the Empire Cotton Oil Company. Reformation can go no further than to insert what was by mistake omitted, or to strike what was by mistake unintentionally included in the original paper. Therefore there is nothing for a court of equity to do. What effect the change in the contract as made by the plaintiff and the Empire Cotton Oil Company in their voluntary reformation will have upon the other defendants is to be determined upon the trial of the case.” The cause came on again for trial, and by amendment the reformed writing was pleaded by the plaintiff and by her construed to be not such a release as would defeat her right to recover her alleged damages against the defendants.

A covenant not to sue one jointly liable will not serve to release any one other than the one with whom the covenant not to sue is entered into. Where by accident, mistake, or fraud a writing does not speak the truth, it may be reformed and corrected so that it may be made to speak the truth. In this case the defendants may introduce in evidence the original writing as well as such other evidence as may be competent by way of attack on the reformed and alleged corrected covenant not to sue, and it is for the jury to say, under appropriate instructions from the court, whether the plaintiff in fact did release as pleaded by the defendant, or whether she merely entered into a covenant not to sue. Viewing the case as we do, we are of the opinion that it was not error to overrule the demurrers to the defendants’ answer, and that it was error for the court to sustain the demurrer to the plaintiff’s amended petition. In other words, the plaintiff may attack the release pleaded by the defendant, and the defendants may attack the alleged reformed writing by the introduction of the writings themselves, and such other evidence as may be admissible, for the discovery of the truth.

The court having struck the plaintiff’s amendment to her petition, wherein she pleaded the reformation of the original receipt, and by such order made it impossible for her to recover, and the judgment of this court being that the sustaining of the demurrer to her amendment was error, everything occurring thereafter was nugatory, and the question raised by the Southern Eailway Company and the Virginia & Southwestern Eailway Company, as to their release by reason of a stipulation in the record as to their liability as determined by the law of this case upon the former adjudication upon the question of the merits of the petition, is not now passed upon. For the reason that the court erred in sustaining the demurrers to the plaintiffs amended petition, the judgment of the court in directing a verdict for the defendants is reversed.

Judgment reversed.

Wade, Q. J., and Jenldns, J., concur.


author: Wade, C. J.

text:
    10053.
    Casey v. Owens.
   Wade, C. J.

1. The various grounds of the demurrer are without substantial merit, and the trial judge did not err in overruling them.

2. The court erred in charging the jury that “under the statute of the State of Florida which the defendant has pleaded as a defense to the note sued upon,, the burden is upon the defendant to show by a preponderance of the evidence that notice of dishonor of the note sued upon was not given to him. Placing such notice in the mails for transmission to him within the time required by the statute so pleaded would be a sufficient compliance with the law as to notice.” Under the laws of the State of Florida pleaded by the defendant, when a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as an indorser; and before an indorser can be held liable on a note it is necessary that notice of dishonor by the maker be given him. The burden was therefore on the plaintiff to establish that notice of dishonor was given the defendant, and the charge complained of, having placed this burden on the defendant, was such error as to require a reversal. See, in this connection, the following cases, in which a Georgia statute similar to the Florida statute was construed. Allen v. Ga. Nat. Bank, 60 Ga. 347; Apple v. Lesser, 93 Ga. 749 (21 S. E. 171).

(a) The uncontradicted testimony of the defendant that notice of dishonor was never received by him was sufficient proof under the Florida law; and the charge complained of was subject to the criticism that it conveyed to the jury the impression that the defendant must prove not only that he never received notice of dishonor, but that such notice was never mailed him—a burden impossible to carry unless he made the plaintiff a witness for himself.

Decided July 17, 1919.

Compaint; from Camden superior court—Judge Highsmith. July 29, 1918.

Emmett McElreaih, John T. Vocelle, for plaintiff in error.

8. 8. Townsend, contra.

3. No otlier reversible error appears from the motion for a new trial.

Judgment reversed.

Jenhins and Luke, JJ., concur.


text:
    10084.
    THORNTON v. HORTON.
    The evidence of the plaintiff tended to prove every material allegation of her petition. The court, therefore, erred in granting a nonsuit.
    Decided July 17, 1919.
    Trover; from Taylor superior court—Judge Howard. March 25, 1918.

      O. W. Foy, for plaintiff. Jule Felton, for defendant.
   Luke, J.

R. B. Thornton mortgaged a certain described horse to the First National Bank of Reynolds. The mortgage was foreclosed and at a “short-order” sale the horse was sold to one Horton for $100. The proceeds of the short-order sale were claimed by J. H. Thornton, the father of R. B. Thornton, under a mortgage fi. fa. in his favor, and he was successful in obtaining a portion of the money arising from the sale. Thereafter his wife brought this suit, a bail-trover action, to recover the horse. At the close of the evidence introduced in behalf of the plaintiff, a nonsuit was granted, on motion of the defendant, and this is complained of in the bill of exceptions.

The evidence showed that the defendant was in possession of the property described in the suit, and that demand was made on him for the property, and he refused to deliver it. The evidence also established the value of the property, and the value of the hire. There was parol evidence, unobjected to, that the property belonged to the plaintiff by virtue of a homestead, taken out by her husband, and that the property was sold by E. J. Pool, a constable, who was put on notice before the sale that it was homestead property.

In view of this proof, we think the court erred in granting a nonsuit. The Civil Code (1910), § 3377, provides that property may be set aside as a homestead, and shall not be subject to any levy and sale. The evidence shows that the property in dispute was purchased with the proceeds of a homestead, and was therefore homestead property. “Land paid for with homestead land is homestead property.” Broome v. Davis, 87 Ga. 584 (13 S. E. 749). See also Johnson v. Redwine, 105 Ga. 449, 453 (33 S. E. 676); Taylor v. James, 109 Ga. 327, 334 (34 S. E. 674); Johnson v. Thomason, 120 Ga. 534 (48 S. E. 137). In the case of Taylor v. James, 109 Ga. 327, 336 (34 S. E. 677), it is said: “The beneficiaries of the homestead, however, have such an interest in the property that they may bring an action against any one who is in possession holding adversely to them.” See also Eve v. Cross, 76 Ga. 693. These cases are authority for the proposition that the plaintiff had the right to bring this suit in her name, as she was a beneficiary of the homestead taken out by her husband.

We can see no reason why the nonsuit ivas granted, unless it was on the idea that J. H. Thornton, the husband of the plaintiff and the head of the family, was at the judicial sale and claimed a portion of the money arising from the sale of the property sought to be recovered in this trover suit. In Phillips v. Taber, 83 Ga. 565 (4 a) (10 S. E. 270), it is said: “It could be recovered by the plaintiff as the head of the family, though he was present at the sale and received the surplus from the sheriff.” To sum up the whole matter, it appears to us that this suit could be maintained by the plaintiff, since she was a beneficiary under the homestead; that there could have been no legal sale of the property which was purchased with the proceeds of a homestead, and consequently no legal title passed) there being, of course, no proof that the sale was made under any of the exceptions to the general rule.

Judgment reversed.

Wade, C. J., and Jenlcins, J., concur.


text:
    10238.
    Southern Railway Company v. Cagle.
   Jenkins, J.

1. The right which a riparian owner of land adjacent to a non-navigable stream has to a reasonable use and consumption of its water does not include the right to use, divert, or diminish the supply so as materially and unreasonably to interfere with the rights and uses of a lower owner. Primarily each has the same and a common right to the natural and undisturbed flow of the stream, subject only to such detention or diminution as may be occasioned by a reasonable use by others. Whether in a given instance such use shall be taken as reasonable or unreasonable is a question to be determined by the jury upon the particular facts of the case, including, among other things, the size and character of the stream, and the uses to which it is subservient. White v. East Lake Land Co., 96 Ga. 415 (23 S. E. 393, 51 Am. St. R141).

Decided July 17, 1919.

Action for damages; from Hall superior court—Judge J. B. Jones. November 9, 1918.

E. A. Neely, J. 0. Adams, Ed. Quillian, O. L. Faulhner, for plaintiff in error.

Claude Barrett, C. N. Davis, contra.

2. The petition, as amended, seeking specified damages because of the alleged unreasonable diversion of water on the part of the defendant, whereby the earnings of the plaintiff’s mill property were diminished, set forth a cause of action. The exceptions taken to the overruling of the special grounds of demurrer are without merit. The charge of the court is without material error. It can not be said that the amount of the verdict (though in our opinion liberal) is altogether without evidence to support it.

Judgment affirmed.

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


text:
    10243.
    Weyman v. Maynard et al.

   Jenkins, J.

1. Ordinarily, questions of negligence are such as lie peculiarly within the province of the jury to determine; but where by the allegations of the petition itself it clearly appears that the plaintiff, by the exercise of ordinary care, could have readily avoided the consequences flowing from the defendant’s negligence, the petition is subject to demurrer, since “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Civil Code (1910), § 4426; Ball v. Walsh, 137 Ga. 350 (73 S. E. 585).

2. It is ordinarily the duty of a landlord to turn over the rented property to the tenant in a condition reasonably safe and suited for the purpose intended, and free of such latent defects as the exercise of ordinary diligence on the part of the landlord might have disclosed; but where, as in this case, under the allegations of the plaintiff’s petition, the defect must necessarily have been plainly apparent, and the tenant not only had opportunity equal to that of the landlord of discovering and understanding the defects, but had actual knowledge thereof with full opportunity of notifying the landlord thereof prior to the time of the damage or injury, then before the landlord would be liable in damages to the tenant for resulting injuries it must appear that notice of such defects had first been given him. Henley v. Brockman, 124 Ga. 1059 (5) (53 S. E. 672); Driver v. Maxwell, 56 Ga. 11 (2); White v. Montgomery, 58 Ga. 204; Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 903 (38 S. E. 204); Stack v. Harris, 111 Ga. 149, 150 (36 S. E. 615); Adams v. Klasing, 20 Ga. App. 203 (92 S. E. 960); 16 R. C. L. 777, § 271.

Decided July 17, 1919.

Action for damages; from Fulton superior court—Judge Pendleton. November 19, 1918.

See Maynard v. Atlanta Gas Light Go., ante, p. 5.

The petition alleged, in substance, that the plaintiff’s husband, J. W. Maynard, and her brother-in-law, L. W. Whitley, entered into an agreement with the defendant Weyman whereby he was to rent to them-jointly, for the use of themselves and their families, the house and lot known as 570 Central Avenue, Atlanta, Ga., and in pursuance of this agreement they took possession of the house on August 27, 1917; that a few hours after they moved into it two employees of the Atlanta Gas Light Company came to the house for the purpose of installing gas-meters, connecting up and testing the gas-fixtures, and turning on the gas for the use of the plaintiff and the other occupants; that she and her sister requested these employees to make a careful examination of all the gas-fixtures and connections in the house; that shortly after the employees of the gas company had finished their work of installing gas-meters, testing and connecting up the’ gas-fixtures and connections, and left the house, the plaintiff discovered that the bath-room was completely filled with gas, which had escaped and was then escaping through a hole in the ceiling, and that the entire bath-room gas-fixture was lying, entirely disconnected, in the bathtub; that thereupon, with the assistance of a stranger who had come into the house to aid her, she threw open the door and window of the bath-room in order that the gas might escape therefrom, and within a few minutes the stranger connected the gas-fixture with the hole in the wall, thus stopping the leakage of gas; that about thirty minutes later this stranger stood upon a box in the middle of the bath-room, while the plaintiff stood within about 10 feet of him and in the doorway between the bathroom and the adjoining hall, and he struck a match for the purpose of testing the connection between the gas-pipe or fixture and the hole in the wall, and was extending his hand in the direction of the hole or wall connection, when suddenly and unexpectedly there was an explosion and a flame which spread over the entire bathroom and into the doorway of the hall adjoining the bath-room where the plaintiff was standing, and burned her. It was alleged that the defendant Weyman was negligent (a) in failing to have the house in a tenantable condition, and in a safe and suitable condition for use as a residence by the plaintiff and the other persons residing there; (b) in failing to have all gas-fixtures in the house safely, securely, and properly connected up, so that the gas when turned on would not escape therefrom.

3. Applying the foregoing principles of law to the instant case, there could be no valid recovery from the landlord, under the allegations contained in the petition, and his demurrer should have been sustained. Certain’ other legal principles also appear to be involved, which might likewise bar a recovery, but which it is not thought necessary to formulate.

Judgment reversed.

Wade, G. J., and Juke, J., concur.

Weyman demurred to the petition, upon the following grounds: 1. It sets forth no cause of action against him. 3. It fails to allege that the plaintiff gave notice to him of the repairs alleged to be necessary; nor does it show that she was not guilty of such negligence as would preclude a recovery. 3. It appears that the alleged defects were patent and known to the plaintiff and unknown to this defendant, and the petition fails to allege that this defendant knew or had notice of such defects. 4. The allegations show that the plaintiff, by the use of ordinary care, could have avoided the- injury. The court overruled the demurrer, and Weyman excepted.

Robert 0. & Philip IJ. Alston, Blair Foster, for plaintiff in error.

Dorsey, Shelton &. Dorsey, contra.


text:
    10257.
    SOUTHERN RAILWAY COMPANY v. SIMMONS.
    1. The petition sot out a cause of action, and was not subject to general demurrer.
    2. The suit was brought under the Federal “employer’s liability act,” but not on account of any violation of the Federal statutes for the protection of employees. Thus, the doctrine of assumption of risk was available as a complete defense, since an employee assumes the ordinary risks and hazards of his occupation, and also those risks which are known to him, or which are plainly observable, even though due to the master’s negligence; and no presumption of negligence existed against the defendant.

      3. The plaintiff was a section-hand in the employ of the defendant, and was injured while engaged in the work which he was employed to perform. The uncontradicted evidence shows that, as to the acts of negligence charged, the defendant used all ordinary care for the plaintiff’s safety, unless it be that the foreman was negligent in ordering him to remove the lever-ear at the time and place he did; and even though the defendant was negligent in this respect, such negligence was known to the plaintiff and was plainly observable. He therefore assumed the risk occasioned thereby, and can not recover.
    Decided July 17, 1919.
    Action for damages; from Habersham superior court—Judge J. B. Jones. November 3, 1918.
    Seaborn Simmons brought an action against the Southern Railway Company for personal injuries, under the Federal “employer’s liability act” of April 22, 1908 (c. 149, 35 Stat. 65, H. S. Comp. St. 1916, §§ 8657-8665). The petition alleges, substantially, that on February 11, 1918, while engaged by the defendant as a section-hand, the plaintiff was working for the defendant under the direction and control of Dalton Lovell, section foreman, who was in full charge of the section of the defendant’s line of road known as the “Baldwin section;” that the plaintiff was directed by Lovell to assist the remainder of the crew in propelling a lever-car belonging to the defendant, which was being used to transport the section-crew and their foreman from Baldwin, Ga., to Cornelia, Ga., for the purpose of repairing the tracks of the defendant’s line of railroad; that when the plaintiff was on the car helping to propel it, and had traveled about half the distance from Baldwin to Cornelia, one of the defendant’s passenger-trains came around a sharp curve, running at great speed, some 50 or 60 miles per hour, on the main track that the lever-ear was on; that.when Lovell saw the train coming he ordered the section-crew to remove the lever-car from the track; which they undertook to do, but, on account of the nearness of the train and the great speed at which it was being run, they were unable to remove the car in time to prevent the train from striking it; that when the plaintiff saw that the train was going to strike the car, hé undertook to get to a place of safety, but the train struck the car and knocked it from the track and against him, breaking his leg and causing other injuries described. It was' further alleged, that the defendant had a double track from Baldwin to Cornelia, and an agent at its station at Baldwin whose duty it was to know when trains were due to arrive, and that it was the duty of Lovell, the foreman, to ascertain from the station-agent at Baldwin, before starting with the lever-car, if any train was due to arrive, and which track it would be on. It is alleged that the defendant was negligent in the following respects: (1) in running the lever-car on the same track that it was using at the time for its passenger-trains at this point; (2) in ordering the plaintiff to remove the lever-car from the track, as the train was so close to it; (3) in not warning the plaintiff of the approach of the train, in running the train at such a great rate of speed, in not stopping the train, and in knocking the lever-car from the track and against the plaintiff; (4) in not using the other track for the lever-car, as the defendant knew that the passenger-train was on the track at that time and place, and that it was obviously dangerous to operate the lever-car on that track. It is further alleged that the plaintiff was without fault and in the exercise of ordinary care for his own safety, and could not have avoided the consequences of the defendant’s negligence by the exercise of ordinary diligence after the negligence of the defendant became apparent; that he did not know of the approach of the train in time to prevent the injuries, and could not have found out about the acts of negligence by the exercise of ordinary care; that it was no part of his duty to look out for trains, but this was the duty of Lovell, the foreman.
    On the trial of the case it was admitted that both the plaintiff and the defendant were engaged in interstate commerce at the time of the alleged injury. The plaintiff himself testified: “I had been working with Lovell ever since the last of October,—’October, November, December, and January. You catch trains on the double track day and night, all the time, plenty of them. . . They generally run by schedule; they run passenger-trains on schedule. I have known one to be late. I know that was late that morning. I thought it was due, thought number 36 [the train which struck the lever-car] was due. I didn’t know it. I didn’t know about the second 36. I knew they ran extra freight-trains there sometimes. I have seen trains of all kinds, extras, and numbers 78 and 55, 45, 29, and 39, and 44,—all kinds. I knew they run trains and I could look out for one most any time. . . I knew I could expect a train on that track most any old time. I also know they run extra freight-trains, and extra freights and passengers.. They run them every once in a while, run a number of trains. When I was on the lever-car I was expecting trains most any time.” The plaintiff further testified: “On the 11th day of February, 1918, we put our car on the track and started to Cornelia to fix a railroad crossing. . . It was about 7 o’clock I suppose. It was hardly daylight. You could see pretty well. It made the headlight of the engine shine pretty bright. The headlight was shining. . . There were two tracks, north and south-bound main line. . . I knew I was on the north-bound line. . . We got about half way from Baldwin to Cornelia, and Dalton Lovell looked back and saw 36 coming, and said ‘Boys, let’s get off and get the car off.’ . . 1 had my face towards Cornelia, and the engine was coming behind me. . . The minute he said ‘Let’s get off,’ I knew the train was coming. . . When I first saw the train it was at least fifty yards from me. By reason of it not being quite daylight I don’t suppose I could see him as far as he could see me. I don’t suppose I could. . . I saw the headlight when it was at least fifty yards away. . . When I got on the ground and started to take the lever-car off, it was fifty yards away. . . I could have seen the headlight 200 yards, I guess, if we looked back. It came around the curve, and came out of the cut there. The cut at the end of the curve was 225 yards where ho could have seen us. . Cling Buehannon and the other men picked up and left. . . Cling left me. He had hold of my end. He joined the bird-gang, and I still stood and looked at the engine, but was struggling with the lever-car. . . Burton left, it might have been just a little before I did. . . It might have been just a minute. I say he might have left a little before I did, both of them [Burton and Lovell], but it was not over that. . . Lovell left before I did, just a little before I did. He had his back to the lever-car. I saw him leave, and then I left. I didn’t leave quite quick enough. If I had, I wouldn’t have got hit. . . Trains numbers 36, 37, 38, 40, 42, 29, and 30 always run fast, but didn’t run much fast up grade; didn’t run much faster than 36 was running the day I got hurt. . . If Dalton Lovell ever did warn me to get away from the car, that it was going to be struck, after he told me to move it off the track, I didn’t hear him.”
    Dalton Lovell, sworn in behalf of the plaintiff, testified: “I was section-foreman for the Southern Railway on the Baldwin section, and was on the lever-car that was struck by the train coming from Baldwin to Cornelia. When I first saw the headlight, the train was about 200 yards from the lever-car. When I first saw it I put on the brakes and said, ‘Let’s get off.’ . . The engineer in charge of the train, if there had not been smoke, could have seen the lever-car about 200 yards. It was early in the morning and smoky. . . The first section of train 36 had already run, but the second section had not run. The second section has not got any schedule that I know of. The first section is the one that is on the time table. . . If the second section, which struck us, was late, I didn’t know it. There was not any operator at Baldwin to tell how late it was. . . As to my warning Simmons to leave the lever-ear before he did leave it, I didn’t go around and tell him. I always taught them before, when we could not get a ear off, to get away. . . My back was in the direction the train was coming. I had been looking back that way expecting the train any time. On these tracks they run the trains fast all the time. They run those passenger-trains sometimea behind time, and sometimes on time, but always along there fast. . . As soon as I hollered . . . Simmons knew it [the train] was coming. He got down off of the lever-car with his face towards the train, on the right-hand side of the track coming towards Cornelia. He was on the engineer’s side. . . It was a dark and foggy morning, about daylight. I don’t know whether it was hardly good daylight. It was winter time. The headlight was burning.' It had to be burning on account of it being dark. Standing there where I was, I don’t know how far I could have seen a man on the track ahead of me. I could have seen one fifty feet across there that time of day, a dark and smoky and foggy morning. . . Fifty feet is my estimate. . . Looking back in the direction the train was coming from, there is a cut and a curve. There was not anything to keep Simmons from seeing the train after he turned around. He said he did see the train. When I first put him to work I told him that he would have to look out for trains all the time, look for himself. . . On a clear day in good daylight the engineer could have seen the lever-ear about 200 yards. . . On this particular morning the engineer could not have seen more than fifty feet, I guess, about fifty feet, because it was cloudy and smoky, and not broad daylight . . Thete was not any depot agent at Baldwin the morning we left there when Mr. Simmons got hurt, not at that hour. The Baldwin depot was supposed to open at 8 o’clock. . . Most of the time we left Baldwin before the depot was opened.”
    B. T. Holland, sworn in behalf of the defendant, testified:. “I am an engineer on the Southern Bailroad. I was the engineer on the train that struck the lever-car when Mr. Simmons was hurt. I came around the curve that morning, I don’t know- exactly what time,—about daylight. It was pretty foggy, and the first thing I knew I was right into the lever-car. As I came around through the cut I was looking out. It was about daylight, very foggy. The headlight was burning. When I first discovered the lever-car I put on the air-brakes as hard as it would go on in the emergency. When I first discovered the lever-car I don’t think it was over 15 or 20 feet from me, maybe a little more. I discovered it as soon as I could. Just as soon as the conditions would let me, I saw it. I stopped as quick as I could, put the brakes on as hard as they would go on in emergency, and stopped. . . I had on my headlight. It was burning. It was an electric headlight, the kind in common use on the Southern Bailroad. I was something near 25 or 30 feet of the lever-car when I first saw it. . . A man looking out on the tracks with a headlight of the kind generally in use on the Southern Bailroad could not see a car and four men over 30 or 40 feet, there was such a fog. . . That headlight throws a light in front of an engine a considerable distance, owing to the condition of the weather. If there is nothing there to obscure the light, ycu can see a mile. . . In the condition of the fog that morning, you could not see over 40 or 50 feet. I was in 40 or 50 feet of this hand-car when I first saw it. . . The train was running 35 or 40 miles an hour.”
    The jury returned a verdict in favor of the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted. Edgar A. Neely, for plaintiff in error.

      J. J. & Sam Kimzey, contra.
   Jenkins, J.

(After stating the foregoing facts.)

Since this action was brought under the Federal "employer’s liability act,” the provisions of that act are controlling, and the >0086 must be decided in accordance therewith. As was held in Charleston &c. Ry. Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275) : “In a suit brought under the Federal ‘employer’s liability act/ except as to violations of Federal statutes for the protection of employees, assumption of risk is an absolute defense, while contributory negligence merely reduces the damages. Roberts, Injuries to Interstate Employees, § 130; Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475).” In such a case there is no presumption of negligence against the defendant, and it is well settled that, under the provisions of this act, the plaintiff not only assumed whatever risks were normally incident to his employment, but also those defects and risks which were known to him, or which Avcre plainly observable, although due to the master’s negligence. See Charleston &c. Ry. Co. v. Sylvester, supra, and cases cited. It will be borne in mind that in cases of this sort, no matter what acts of negligence on the part of the defendant may be shown by the evidence, the plaintiff must recover, if at all, upon proof of one or more of the specific acts of negligence alleged in the petition, and that there can be no recovery unless one or more of these acts is established by proof. See Jarrell v. Seaboard Air-Line Ry., 23 Ga. App. 719 (99 S. E. 386 (1-b) ), and cases there cited. In the case of Southern Railway Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321), which was a case very similar to the one now under review, this court held that “One of the risks assumed by the plaintiff in this case (who was employed as a track-hand), upon entering the service of the railway company, was the danger ordinarily incident to the usual and proper operation of its trains over the track upon which he was at work. This proposition is the fundamental principle underlying the decision of the Supreme Court in the case/of L. & N. Railroad Co. v. Kemp, 140 Ga. 657 (79 S. E. 558).” In the Kemp case, the plaintiff was foreman in charge of a force of section-hands, and his duties required him to inspect and maintain the tracks and roadway of the defendant upon his section. While engaged in the inspection of the tracks he was confronted with an emergency occasioned by the sudden appearance of a freight-train, operated in the usual method, which rounded a curve, and in attempting to remove from the track the hand-car on which he was riding, and avoid the impending danger to himself and his hand-car, he was injured. The Supreme Court expressly ruled in that case that under this state of facts the plaintiff could not recover. It was further held in the Blackwell case that “To justify a recovery for injury caused by a train striking a section-hand while engaged in repairing a track, it must be shown that the proximate cause of his injury was the railway company’s neglect of some duty to him in respect to his protection from injury by passing trains,” citing Norfolk &c. Ry. Co. v. Gesswine, 144 Fed. 56 (75 C. C. A. 214); Aerkfetz v. Humphries, 145 U. S. 418 (12 Sup. Ct. 835, 36 L. ed. 758); Ellis v. Louisville &c. Ry. Co., 155 Ky. 745 (160 S. W. 512); Morris v. Boston & Maine Rd., 184 Mass. 368 (68 N. E. 680); and quoting from the case of Woods v. St. Louis &c. R. Co., (Mo), 187 S. W. 11, as follows: “It is not the duty of a railroad company to notify sectionmen that any certain trains are expected to pass over the road, but it is their duty to be on the lookout and keep out of the way.”

In the case of Connelley v. Pennsylvania R. Co., 201 Fed. 54, 56 (119 C. C. A. 392, 47 L. R. A. (N. S.) 867), the Circuit Court of Appeals said: “It is an obvious fact that many occupations, as for example a powder mill operator, a structural iron worker, a diver, a blaster, a trackwalker, necessarily subject those who follow them to great danger. When, therefore, a man contracts for such employment, he knows and takes on himself the risks and dangers incident to such dangerous work. His assumption of those obvious and unavoidable risks is in the very nature of things part of his employment. It follows, therefore, that the employer violates no legal duty to the employee in failing to protect him from dangers which cannot.be escaped by any one doing such work. . . It is obvious that even where a railroad operates its trains and moves its switch drafts in a proper and careful manner, trackwalkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed, it follows from the nature of such employment that the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law. . . Indeed, in thus making self-protection the substantial safeguard of trackwalkers and section-men, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation of railroads.” And in the case of Linz v. Chicago, B. & N. R. Co., 93 Wis. 16 (66 N. W. 718), the Supreme Court of Wisconsin held: “A section-hand whose duties required him to ride over the road on a liand-car, and who had been, notified by the company, and of his knowledge knew, that wild trains were frequently run over the road at a high rate of speed, assumed the risk of injury from being run into by one of these trains running at a high rate of speed on a foggy morning.”

Applying this principle of law to the facts adduced upon the trial of this ease, we are compelled to set aside the verdict in favor of the plaintiff. As has already been stated, there is ño presumption of negligence against the defendant in this case. It will be seen from the plaintiff’s own 'testimony and that of the witnesses sworn in his behalf, as well as from the uncontradicted evidence in behalf of the defendant, the employees of the defendant in charge of its locomotive and cars which injured the plaintiff used all ordinary care and diligence to avoid the injury. The plaintiff, besides knowing that he might expect a train along this track at any time, was in point of fact specifically warned of, and saw the approach of, the train which caused his injuries, in ample time to have avoided the injury by the exercise of the slightest degree of care upon his part. There is no evidence to show that the engineer in charge of the defendant’s train could, in the exercise of the degree of care required by law, have known of the presence of the plaintiff on the track. According to the testimony of the plaintiff himself, it was not good daylight at the time he was injured; and while he testified, “I don’t think it was misty, I wouldn’t say,” the positive testimony of the foreman in charge of the section-crew, who was sworn in behalf of the plaintiff, and the engineer in charge of the train which caused the injury, sworn in behalf of the defendant, was to the effect that it was cloudy, misty, foggy? and smoky, and that the engineer couldn’t have seen the car and the plaintiff a distance of more than fifty feet. The cloudy, misty, foggy, and smoky condition existing at the time the injury occurred prevented the engineer from seeing the plaintiff in time to avoid the accident. When the engine came out of the cut and around the curve onto the straight stretch, it was running at the usual rate of speed of about 35 or 40 miles per hour, but, due to its close proximity to the hand-car at the time its presence was discovered, it was impossible to stop the train in time to prevent striking the hand-car, although the brakes were applied and the engineer did everything in his power, when the emergency arose, to avoid injuring the plaintiff. It follows, from what has been said, that the plaintiff was guilty of no negligence in the operation of its train.

It is insisted, however, that the defendant’s foreman was negligent “in ordering plaintiff to remove the lever-car from the track, as the train was so close to it,” and that the plaintiff was injured while in the line of his duty, under the orders and in the immediate presence of the “boss,” to whose orders he was subject. While it is true that a servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it, still even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with the command in such cases, the servant be injured, he can not recover of the master therefor. Whiters v. Mallory S. S. Co., 23 Ga. App. 47 (97 S. E. 453); International Cotton Mills v. Webb, 22 Ga. App. 309 (96 S. E. 16). Thus, granting for the sake of the argument, that the foreman was negligent in ordering the plaintiff to remove the lever-car at the time and place that he did, the order was negligent only by reason of the close proximity of the approaching train, and this fact was, according to the plaintiff’s own testimony, known to and plainly observable- by him. In the case of Charleston &c. Ry. Co. v. Sylvester, supra, this court held that under the Federal “employer’s liability act,” the employee not only assumes the ordinary risks and hazards of his occupation, but also those defects and risks which are known to him, or which are plainly observable, although due to the master’s negligence. And in Gila Valley Ry. Co. v. Hall, 232 U. S. 94 (34 Sup. Ct. 229, 58 L. ed. 521), the Hnited States Supreme Court held that an employee “is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed, to have known of it. [Italics ours.] In order to charge an employee with the assumption of risk attributable to. a'defect due to the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” See also Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 Fed. 1 (149 C. C. A. 211). Thus it is impossible to hold, under the facts as disclosed by the record in this case, that the plaintiff did not know and appreciate the obvious danger incident to remaining upon the track in the face of an oncoming locomotive, whose gleaming headlight was-staring him in the face. We are compelled to say that he assumed the risk which occasioned his injury.

While constrained to hold as we do, we at the same time feel that the purpose and conduct of the plaintiff in continuing his desperate attempt to remove the hand-car from the track, in order to prevent a collision such as might imperil many passengers and others, was both fearless and highly commendable; but the law, unfortunately for the plaintiff, places upon him, and not upon the company, the risk incident to his courageous act.

Judgment reversed.

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


text:
    10281.
    Robinson v. McCommons, Thompson, Boswell Company.
   Jenkins, J.

This was a suit upon an account for wearing apparel, household supplies, etc. The defendant in his answer denied indebtedness, and for further plea alleged that he never purchased or authorized any one to purchase for him any of the articles in the account; that prior to the date of the first item he borrowed a stated sum of money for the purpose of paying cash for all purchases made by him, and that he “informed plaintiffs of this, and expressly told some member of their firm, in the presence of their then bookkeeper [named], that he would pay cash for everything in future, and instructed them to charge nothing to him, and told them that if after this anything was charged to him he would not be responsible for nor pay for the same.” On the trial the manager of the plaintiff company testified that the account sued on was past due, true, and correct; that he had asked the defendant if he would not pay the account; that he did not then have the account with him, but had a memorandum of the amount, and that the defendant several times promised to pay it; that the defendant, his wife, and their two minor children bought the articles in the account. The defendant testified substantially to the facts alleged in his plea, and denied that he had ever promised to pay the account, but testified that he could not point out a single item of the account that he, his wife and family did not receive and get the benefit of. There was no evidence that any of the items of the account were not necessaries suitable to the condition of life and habits of the defendant’s wife and family. The verdict was for the plaintiff. Refusal to grant a nonsuit, the giving of section 2996 of the Civil Code (1910) in charge to the jury, failure to charge as to the notice set up as a defense, and the admittance of certain books of account in evidence, were complained of in the defendant’s motion for a new trial. Held:

Decided July 17, 1919.

1. “An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently thereto the case is submitted to the jury, and, a verdict being rendered against the defendant, a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence, and without evidence to support it.” Dudley v. Isler, 21 Ga. App. 615 (94 S. E. 827).

2. Cohabitation and joint use of the goods purchased is presumptive evidence of the wife’s authority to contract, and it is for the husband to rebut the presumption by showing that the goods were supplied under such circumstances that he is not bound to pay for them. Such a presumption can only be rebutted by positive and unequivocal evidence that the articles furnished were not necessaries, or that the seller had either actual or constructive notice of an allowance to the wife by the husband, either permanent or temporary, sufficient to enable her to procure necessaries without obtaining them upon her husband’s credit. Civil Code (1910), § 2996; Connerat v. Goldsmith, 6 Ga. 14; Mitchell v. Treanor, 11 Ga. 324 (56 Am. D. 421); Green v. Coast Line R. Co., 97 Ga. 15, 35 (24 S. E. 814, 33 L. R. A. 806, 54 Am. St. R. 379) ; Adler v. Morrison, 15 Ga. App. 139 (82 S. E. 783). The court did not err, therefore, in giving in chai’ge to the jury the section of the code cited above, and for the same reason the third special ground of the motion for a new trial is without merit.

3. The books of account of any merchant doing a regular business and keeping daily entries thereof may be admitted in evidence in corroboration of his testimony as to the correctness of such accounts, upon proof being made by his customers that he usually kept correct books, even though no proof is made that no clerk was kept, or that he was unable to testify. Civil Code of 1910, § 5769 (3) ; Shields v. Carter, 22 Ga. App. 507, 509 (96 S. E. 330). In this case the trial judge did not abuse his discretion in allowing the plaintiff to introduce its books of account in evidence after both sides had closed and argument commenced. Wooten v. Solomon, 139 Ga. 433 (77 S. E. 375); Watson v. Barnes, 125 Ga. 733 (2) (54 S. E. 723).

4. There was sufficient evidence to authorize the verdict.

Judgment affirmed.

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

Complaint; from Greene superior court—Judge Park. November 23, 1918.

F. B. Shipp, for plaintiff in error. Nod P. Park, contra.


text:
    10493.
    Jenkins v. Lowrey, for use, etc.
    Decided July 17, 1919.
    Complaint; from city court of Waynesboro—W. H. Davis. March 4, 1919.

      E. V. Heath, for plaintiff in error.

      Frank Hwdeman, contra.
   Luke, J.

Jenkins was sued on a promissory note, and admitted a primafacie case and pleaded payment. The evidence wholly failed to show payment as pleaded, and it was not error for the court to direct a verdict for the plaintiff.

Judgment affirmed.

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


text:
    10510.
    Bohannon v. Poage.
    Decided July 17, 1919.
    Distraint; from city court of Newnan—Judge Post. April 7, 1919.

      A. H. Freeman, for plaintiff.

      W. G. Post, for defendant.
   Luke, J.

1. On the trial of an issue raised by counter-affidavit to a distress warrant, where the plaintiff testified to a positive agreement as to rental and fixed definitely the amount of rent to be paid, it was not error to refuse to admit his testimony as to what would be a reasonable rental value of the premises rented. The assignment of error in the motion for a new trial does not show that this testimony was offered merely to corroborate other evidence of the plaintiff.

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

Judgment affirmed.

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


text:
    10591.
    Carlisle v. Illinois Central Railroad Company.
    Decided July 17, 1919.
    Action for damages; from Fulton superior court—Judge Pendleton. March 5, 1919.

      Neufville & Neufville, for plaintiff.

      Little, Powell, Smith & Goldstein, for defendant.
   Luke, J.

This case is controlled by the decision oí the Supreme Court in the case of DeBow v. Vicksburg <& Shreveport Railroad Co., 148 6a. 738 - (98 S. E. 381), on the question of service of process upon the commercial agent of the Illinois Central Railroad Company, a non-resident railroad company with no line'of railroad in the State of Georgia. Under the evidence the court did not err in directing a verdict in favor of" the defendant, on the traverse of service.

Judgment affirmed.

Wade, C. J., mid Jenkins, J., concur.


text:
    10227.
    Hamilton v. Kettles.
    Decided July 17, 1919.
   Luke, J.

1. The issue in this ease being as to the appointment 6f one of two applicants as guardian of the person of a minor, the court did not err in admitting in evidence a provision of a will, executed by the mother of the minor shortly prior to her death, in which the defendant in error was selected as trustee or guardian of the property of her child, since this was a proper circumstance for the consideration of the jury in determining the question of guardianship. “The request of the parent of an infant on his death-bed is a proper circumstance to be considered by the jury; and, all other things being equal, is sufficient to turn the scale.” Watson v. Warnock, 31 Ga. 716. See also Churchhill v. Jackson, 132 Ga. 670 (64 S. E. 691, 49 L. R. A. (N. S.) 875, Ann. Cas. 1913E, 1203).

2. The testimony of the defendant in error, that, “as trustee and guardian of this boy, I have taken possession of his property; I am acquainted with the kind of property he has; the income from the property of this child right now is $18.50 per month; that will be ample for the support of this boy with me,” was not objectionable as being irrelevant and immaterial, since it tended to show what property was held in trust for the minor, and the circumstances of the child were to be considered by the jury as well as the circumstances of the applicants.

3. The charge of the court, when considered as a whole, being a fair and concise statement of the law applicable to the facts in the case, and there being evidence to authorize the verdict returned, the judgment overruling the motion for a new trial is

Affirmed.

Jenkins, J., concurs. Wade, C. J., did not preside.

Appeal; from Whitfield superior court—Judge Tarver. November 2, 1918.

Maddox, McOamy & Shumate, for plaintiff in error.

F. K. McCutchen, B. H. House, contra.


author: Bloodworth, J.

text:
    10517, 10518.
    Scoggins v. The State (two cases).
    Delay in imposing sentence afforded no ground for exception to one convicted in January, 1918, and sentenced in April, 1919, where a final disposition of the case was delayed by his motion for a new trial and his bill of exceptions to the Court of Appeals, which in February, 1919, affirmed the judgment overruling the motion.
    Decided July 17, 1919.
    Conviction of manslaughter; from Floyd superior court—Judge Wright. April 14, 1919.

      M. B. Fútanles, W. H. Fnnis, for plaintiff in error.

      0. II. Porter, solicitor-general, contra.
   Bloodworth, J.

At the January term, 1918, of the superior court of Floyd county, M. E. Scoggins was convicted of voluntary manslaughter. A motion for new trial was overruled, and on February 1, 1919, the judgment was affirmed by this court. See Scoggins v. State, 23 Ga. App. 366 (98 S. E. 240). No sentence was pronounced against the defendant during the term at which he was convicted. On April 14, 1919, during a regular term of the court, the judge had the defendant brought before him, and when the defendant was asked if he had anything to say why sentence should not be passed upon him, he filed objections, the substance of which is that, the term of the court at which a verdict was rendered having expired, the court had “no right, power, or jurisdiction to pronounce or enter any sentence or judgment against this defendant.” The court overruled the objections and sentenced the defendant to a term of years in the penitentiary; “to which ruling, refusing to consider said objections, and to which sentence the defendant then and there excepted.” In a separate bill of exceptions the defendant assigned error on the overruling of a mofion in arrest of judgment, based on the same ground.

A case involving the same question as is here raised is that of Darsey v. State. In that case the accused was convicted of voluntary manslaughter in January, 1911, but no sentence was then imposed. The ease was carried to the Supreme Court of this State (see 136 Ga. 501, 71 S. E. 666, where many of the facts are set out), and then to the Supreme Court of the United States (231 U. S. 741, 34 Sup. Ct. 318, 58 L. ed. 462). The rulings of both of these courts were adverse to the defendant. Finally, in February, 1015, sentence was for the first time imposed, and the same point was then and there urged against the judge imposing sentence as is insisted upon in the instant case. The case then came to this court, and this court held that “that portion of the plea of former jeopardy which set up that a previous verdict of involuntary manslaughter was a good and legal verdict and that it still stands against the defendant, having been sustained by the court, it was not error for the court to order that the former verdict be established by the solicitor-general, and to sentence the defendant under this verdict;” and that “the accused will not be heard to complain of the long delay in this case (three or four years) from the rendition of the first verdict to the sentence of the court, where the principal cause of the delay was the appealing of this case by the defendant to the Supreme Court of this State, and to the Supreme Court of the United States.” Darsey v. State, 17 Ga. App. 280 (2, 3) (86 S. E. 781). Here is a definite and distinct ruling that it was not error for the court to sentence the defendant under the verdict, although more than four years had elapsed between the date of the verdict and the time of imposing sentence. (The record in the Darsey case shows further that one judge presided at the time of the verdict and a different judge imposed the sentence.)

Under the foregoing rulings there is no merit in the exceptions now under consideration; and on each bill of exceptions the judgment must be

Affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Bboxxes, P. J.

text:
    10565.
    Munday v. The State.
   Bboxxes, P. J.

Under the principle underlying the ruling in Cooper v. Brown, 10 Ga. App. 730 (73 S. E. 1101), where a defendant has been convicted of a criminal offense and has filed a bill of exceptions and given bond for his appearance to abide the final judgment in the case, and pending tlie hearing of the writ of error he is convicted of another criminal offense and sentenced to the chain-gang, from which he escapes, the bond given in the first case becomes functus officio and the obligation of the sureties is annulled. It follows that the defendant is a fugitive from justice not only in the latter case but in the first one; and the bill of exceptions will be dismissed, unless the defendant gives himself up to the officers of the law within thirty days from the time the case was submitted to this court. Madden v. State, 70 Ga. 383; Osborn v. Slate, 70 Ga. 731; Gentry v. State, 91 Ga. 669 (17 S. E. 956).

Decided July 19, 1919.

Conviction of assault and battery; from Morgan superior court —Judge Park. April 14, 1919.

Allen & Pollle, for plaintiff in error.

Doyle Campbell, solicitor, contra.

Writ of error dismissed.

Bloodworth and Stephens, JJ., concur.


author: Broyles, P. J.

text:
    9737.
    Sullivan, receiver, et al. v. Curling.
    1. “A chose in action arising from a tort is assignable where it involves, directly or indirectly, a right of property.”

      (a) “Where a partnership is dissolved and one partner assigns to the other all of his right, title, and interest in and to the assets of the partnership, the assignee may institute and maintain an action against such tortfeasor for the entire damage sustained by the partnership. The assignor is not a proper party plaintiff to the suit, nor is it proper that the suit be brought in the names of both partners for the use of the assignee.”
    2. The petition was not subject to general demurrer.
    3. “An allegation in a petition by one member of a partnership, that the other member thereof sold out to the plaintiff ‘all of his right, title, and interest in and to the assets of said partnership, plaintiff having operated the business since the date of said sale under a trade name, and being the sole and exclusive owner of all of the assets of the firm,’ is a sufficient allegation of assignment of a chose in action, in the absence of an appropriate special demurrer, and as against a general demurrer that ‘plaintiff’s petition sets forth no cause of action which would authorize a judgment against defendant.’ ”
    (a) The above allegation in the plaintiff’s petition was not attacked by an appropriate special demurrer.
    4. The petition as amended was not subject to any of the special grounds of the demurrer interposed.
    5. An assignment of error not argued in the brief of counsel for the plaintiff in error will be treated as abandoned. A mere reference to such an assignment, with the statement that it is not abandoned but insisted upon, will not be considered as an argument. “Courts of review have the right to expect assistance from counsel by citation of authority or argument.” Toumans v. Moore, 11 Ga. App. 66 (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222) ; James v. Boyett, 19 Ga. App. 157 (91 S. E. 219); Barfield Musie House y. Hwris, 20 Ga. App. 42 (92 S. E. 402). In the instant case the only reference to the first five grounds of the amendment to the motion ror a new trial is as follows: “We contend that the court committed error in overruling the assignments of error contained in the 4th, 5th, 6th, 7th and 8th grounds of the amendment to the motion for a new trial, for the reasons set out in each ground thereof, and we invite the attention of the court to each ground thereof.” Under the above ruling these grounds will be treated as abandoned.
    6. “While it is undoubtedly true that the contentions of the plaintiff were stated more at length than those of the defendant, it can not be inferred from this fact that undue stress was laid upon or undue prominence given to the contentions of the former. In the first place, the contentions, so far as appears from the pleadings of the plaintiff, are set forth fully and distinctly in his petition, properly paragraphed, and the defendant contented itself, as it had a right to do, with a bare denial of the allegations of the petition. If the plaintiff’s case required a full, definite, and affirmative allegation of certain facts, and the defense to the cause of action as stated rests upon a mere denial of the allegations in the petition, and the trial judge sums up the contentions of both parties by a fair statement of the material allegations in the petition, and then states that these allegations are denied by the defendant, how can it be said that he has failed to state the contentions of either party?” Macon Dublin cG Savannah R. Oo. v. Joyner, 129 Ga. 684 (59 S. E. 903). Under this ruling, and the facts of the instant ease, the charge of the court stated the contentions of the parties fairly and with sufficient fullness and clearness. If the defendants had desired a more elaborate statement of their contentions, a timely written request therefor should have been offered.
    7. The reference in the charge to the defense of the defendants was sufficiently full, in the absence of a timely written request for more detailed instructions thereon. s
    8. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided July 22, 1919.
    Action for damages; from city court of Hazlehurst—Judge Knox. April 15, 1918.

      J. W. Quincey, L. B. Heath, J. Marie Wilcox, S. D. Dell, for plaintiff in error.

      McDonald & Willingham, Newton Gaskins, contra.
   Broyles, P. J.

Certain questions in this case were certified to the Supreme Court, and in answer thereto that court ruled as set forth in the first three headnotes, with the exception of 3{a). See the entire opinion of the Supreme Court in Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533).

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., concurs dubiiante.


author: Bloodwokth, J.

text:
    10371.
    Farm v. The State.
    Decided July 22, 1919.
    Indictment for breaking and entering railroad-cur; from Thomas superior court—Judge Thomas. January 17, 1919.

      Titus, Delete & Hopleins, for plaintiff in error.

      Cr B. Hay, solicitor-general, contra,
   Bloodwokth, J.

1. An indictment charging a violation of the statute codified in section 181 of the Penal Code of 1910 is sufficiently definite when it charges that the defendant “did then and there, unlawfully and with force and arms, break and enter a railroad-car in the possession of the Georgia Northern Railway Company at Boston, Ga., in said county, with intent to steal goods, wares, and freight in said ear being, and, after breaking, did steal therefrom goods and freight, to wit, 2 caddies of chewing tobacco and eleven sacks of flour, the same being freight consigned to Massey Mercantile Company, Barwick, Ga.” It “states the offence in the terms and language of this code,” and “so plainly that the nature of the offence charged may be easily understood by the jury.” Penal Code (1910), § 954; Camp v. State, 3 Ga. 417 (1). The indictment meets all the objects in requiring particularly in setting out the offence. Wingard v. State, 13 Ga. 396 (2), 400 (2).

2. When an indictment under § 181 of the Penal Code of 1910 alleges that the accused “did then and there, unlawfully and with force and arms, break and enter a railroad-car with-intent to steal goods, wares, and freight in said car being,” “no description, value, or ownership of any goods intended to be stolen need be alleged.” Boyd v. State, 4 Ga. App. 273 (61 S. E. 134) ; Lanier v. State, 76 Ga. 304 (1-a).

3. Under the ruling in Gilbert v. State, 116 Ga. 819 (43 S. E. 47), an indictment which charges that the accused did, “unlawfully and with force and arms, break and enter a railroad-car in the possession of the Georgia Northern Railway Company” sufficiently alleges the ownership of the car to have been in that company. See Waters v. State, 15 Ga. App. 342 (83 S. E. 200); Markham v. State, 25 Ga. 52.

4. Under the above rulings there is no merit in any of the grounds of the amendment to the motion for new trial, and the demurrer to the indictment and the motion in arrest of judgment were properly overruled.

5. There was evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    10387.
    Barksdale v. The State.
    Decided July 22, 1919.
    Indictment for robbery; from Fulton superior court—Judge Humphries. February 15, 1919.

      Fred F. Harrison, H. A. Allen, W. I. Heyward, for plaintiff in error.

      John A. Boylcin, solicitor-general, F. A. Stephens, contra.
   Stephens, J.

1. Where one is indicted for the offense of robbery by force as well as by intimidation, a general verdict of guilty will be applied to the count in the indictment charging robbery by force, since the latter is the higher grade of the offense. Moran v. State, 125 Ga. 33 (53 S. E. 806).

2. “Eoree,” in the sense in which it is used in defining the offense of robbery, consists in personal violence or that degree of "force that is necessary to remove articles so attached to the person or clothing as to create resistance, however slight. 2 Bishop’s Criminal Law, § 1167. In the absence of any evidence of such “force,” the verdict finding the defendant guilty of robbery by force is without evidence to support it.

3. Evidence that the defendant held a pistol in a threatening and intimidating manner over the victim of an alleged robbery, while his confederates ran their hands through the pockets of the victim, and without violence relieved the latter of his money and other loose valuables unattached to the person or clothing, authorizes a conviction of robbery by intimidation, but hot of robbery by force, the robbery having been accomplished without “force.” See Tanner v. State, post, 132 (100 S. E. 44)

4. The assignment of error upon an excerpt from the charge of the court, contained in the only ground of the amendment to the motion for a new trial, is without merit.

5. The verdict is without evidence to support it, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, P. J., <md Bloodworth, J., concur.