text:
    11757.
    Starke v. The State.
    Decided November 9, 1920.
    Accusation of misdemeanor; from city court of Houston county — Judge Eiley. July 12, 1920.
    The accusation • charged Leon Starke with having stolen from E. S. Braswell’s storehousé a bolt of homespun cloth. Braswell testified, that at a certain time he had three bolts of yellow homespun in front of his store, that one of them was stolen, and he had never seen it since, and that its value was $20 to $22. Ed Dawson testified: “ One night, about the time this homespun was stolen, the defendant, Leon Starke, came to Eogers Brown’s store where I was, and called me out and asked me if I wanted to buy a bolt of yellow homespun. I asked him what he wanted for it, and he said $8. I told him I did not have the money. He did not have homespun or any kind, of cloth with him. I never did see him with any cloth.” The police officer who arrested the defendant testified that Ed Dawson said that the defendant had a bolt of homespun with him when he offered to sell the homespun; but tbe officer, when recalled, testified that he did not remember whether Dawson said that the defendant had any cloth with him or not. The defendant, in his statement at the trial, denied that he had stolen the homespun. He said that he knew nothing about it and had. never spoken to Lawson about selling him homespun. There was no additional testimony. It was contended on-the part of the defendant that the conviction was unauthorized because the evidence failed to show that he ever had the homespun in his possession or was in- any way connected with the theft.
   Broyles, C. J.

The record in this case contains no evidence authorizing the defendant’s conviction, and the court erred in ■ overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Emmett Houser, for plaintiff in error.

Robert E. Brown, solicitor, contra.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    11778.
    LACOUNT v. THE STATE.
    Decided November 9, 1920.
    A person knowingly in possession of any quantity of intoxicating liquor, even a spoonful, may be convicted of' a violation of the prohibition law.
    A verdict supported by any evidence, however slight, and approved by the trial judge can not be interfered with by this court on the ground that the evidence is not sufficient to support it.
    Indictment for possession of liquor; from Madison superior court —■ Judge W. L. Hodges. July 30, 1920.

      Berry T. Moseley, for plaintiff in error.

      A. S. Skelton, solicitor-general, J. D. Matheson, contra.
   Bloodworth, J.

The indictment charged that the accused did “have, receive, possess, and control certain alcoholic liquors,” etc. There was a verdict of guilty. The evidence for the State shows: that “ a batch of jugs and bottles ” was found in the woods near the residence of the accused; that under a shelter was found “a sugar barrel full of bottles and jugs, some pint and quart bottles, and gallon jugs; this was at Lacount’s house, that is, the shelter that we found them under was at his house and on the premises where he lived;” that in his barn and about ten steps from his residence were found some empty kegs; that from his barn a trail led to where was found a keg “that had about fifteen gallons of whisky in it;” and that in his back yard were found a jug and two kegs that recently contained whisky, and “one with a tablespoonful of whisky in it.” The motion for a new trial contained the usual general grounds only. It is settled by repeated rulings of this court that “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See also Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited. There is some evidence to support the finding of the jury in this case. In addition this court is committed to the proposition that under the present prohibition laws of the State the accused would be guilty, under this indictment, if he knowingly had in his possession any quantity of intoxicating liquor, “even a spoonful.” See Biddy v. State, 22 Ga. App. 784 (97 S. E. 196).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Broyles, C. J. Broyles, C J.

text:
    11788.
    PONDER v. THE STATE.
    Decided November 9, 1920.
    Accusation of possession of liquor; from city court of Brunswick—■ Judge Butts. July 14, 1920.
    Application for certiorari was denied by the Supreme Court.
    Writ of error from the Supreme Court of the United States was granted.
   Broyles, C. J.

1. Before exceptions pendente lite can be considered by this court, error must have been originally assigned in the main bill of exceptions upon the exceptions pendente lite, and not merely upon the judgment complained of in the exceptions pendente lite, or such an assignment must be made, by the permission of this court, before the argument of the case here. Jones v. Ragan, 136 Ga. 653 (71 S. E. 1098) ; Sovereign Camp of Woodmen of the World v. Warner, 25 Ga. App. 449 (103 S. E. 861); Carhart v. Mackle, 25 Ga. App. 499 (103 S. E. 855). An inspection of the original records of those cases (of file in the office of the clerk of the reviewing court) discloses that in the main bill of exceptions in each case error was assigned upon the judgment complained of in the exceptions pendente lite and not upon the exceptions pendente lite themselves. Under this ruling, the exceptions pendente lite cannot be considered.

2. The motion for a new trial is based upon the general grounds only, and the verdict was amply authorized by the evidence: It follows that the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Exceptions pendente lite to the overruling of the defendant’s demurrer to the accusation are specified in the main bill of exceptions as a part of the record material to the consideration of the errors.complained of, and were sent up in the record; and in regard to that ruling the main bill of exceptions says: “Said defendant, being dissatisfied with the judgment of the court overruling his demurrer, then and there excepted thereto and filed his bill of exceptions pendente lite thereto, alleging that said court erred and that the judgment was contrary to law, which required that said demurrer be sustained upon the general grounds taken, both singly and collectively. Said demurrer, the judgment of court refusing same, and said bill of exceptions are on record in said court and hereby referred to and made a part of this bill of exceptions and error is hereby assigned upon the judgment of said court overruling and denying said demurrer, and the judgment of the appellate court reversing the same is hereby prayed.”

Bolling Whitfield, A. H. Crovatt, for plaintiff in error.

F. M. Scarlett Jr., solicitor, contra.

ON MOTION EOR REHEARING.

Broyles, C J.

Counsel for the plaintiff in error, in their motion for a rehearing of the case, complain that this court, in passing upon the grounds of the motion for a new trial, considered only the ground that alleged “the verdict is contrary to evidence and without evidence to support it.” Counsel for the plaintiff in error having argued in their brief only that ground of the motion for a new trial, the other grounds were treated as abandoned.

The question as to whether the eighteenth amendment to the constitution of the United States, and the “national prohibition act,” generally known as the “Volstead act,” superseded or abrogated the existing prohibition laws of the State, was attempted to be raised only by the demurrer to the accusation, and, under the ruling in paragraph 1 of the decision in this case, could not be considered by this court, since it was brought up by exceptions pendente lite upon which no assignment of error was made in the main bill of exceptions. However, the Supreme Court has recently passed upon the merits of this identical question adversely to the contentions of the plaintiff in error. See Jones v. Hicks, 150 Ga. 628 (104 S. E. 771).

Rehearing denied.

Luke and Bloodworth, JJ., concur.


text:
    11813.
    GRIER v. THE STATE.
    Decided November 9, 1920.
    Exceptions not argued in the brief for the excepting party in this court will not be considered.
    The charge of the court as to recent possession of stolen property was not cause for a new trial.
    Whether the defendant’s explanation as to his possession of the articles alleged to have been stolen was consistent with his innocence was a question of fact, to be determined by the jury, and this court can not interfere with their determination of the question, under the evidence in this case.
    Indictment for larceny from house; from Bibb superior court — Judge Mathews. July 20, 1920.
    The defendant was charged with having stolen two watches from Blouenstein’s pawn shop. It was testified that they were stolen from the shop on May 28, 1919; and, according to the evidence, the defendant pawned one of them at another pawn shop on the following day, and pawned the other about the same time at a third pawn shop. He was arrested four or five days later. An employee at the last-mentioned shop, who stated that he saw the defendant come into the shop to pawn a watch, testified: “After that I saw the defendant on Cherry street here, and I tried to get him to go to Mr. Blouenstein’s with me to straighten it out. . . I says, ‘Come here;’ and he stopped, and I says, ‘Come and walk over to Mr. Blouenstein’s with me; he wants to see you,’ and he says,. ‘I know what he wants; he wants to see me about some watches,’ and I says, ‘Come and walk over there,’ and he says, ‘I have not got time, I have got to go to Douglas’s theater;’ and I called up the city hall for an officer.” A witness for the defendant testified that on the day preceding the arrest of the defendant he saw “a little brown-skin fellow” on the street trying to sell two watches to the defendant for $8, and that the defendant bought them from this man, and he saw the defendant pay for them. In his statement at the trial the defendant said: “About the watches, this boy met me out there that used to work at the Hotel Dempsey (I went to Atlanta last week to try to locate him), ■. . and he says, ‘Let me sell you two watches cheap; . . I will make them to you at $8. . . I didn’t think he stole them . . and I gave him $ 8 for them. . . This other man says, . . ‘Come and go to Blouenstein’s, you are the fellow that broke in and stole the watches;’ and that was the first thing I learned about it. . . I never been in this, man’s place. That is all I know about it. . . I didn’t pawn the watches.” A witness testified in rebuttal that the defendant pawned one of the watches to him on May 29.
    The first special ground of the motion for a new trial is that one of the jurors who rendered the verdict was one of the grand jurors who found the indictment.
    In the motion for a new trial it is alleged that the court erred in charging the jury that “the recent possession of stolen goods by a person charged with larceny from the house may be a circumstance from which the jury might infer larceny from the house,” and in failing to charge that although the defendant was found in possession of property recently stolen, if he gave a reasonable and satisfactory explanation of that possession, such possession would not authorize an inference of guilt of the larceny.

      W. A McClellan, Hallie B. Bell, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

1. The first ground of the original motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, will be treated as abandoned.

2. The remaining grounds of the motion for a new trial are the general grounds “with variations,” and exceptions to an excerpt from the charge, and to the failure of the judge to charge a certain proposition. When the entire charge is considered there is no merit in the attack upon it. The able presiding judge, in his order overruling the motion for a new trial, said: “The above-stated motion coming on regularly to be heard on the original and amended grounds, after argument - I conclude that the evidence sustained the verdict, and that the exceptions to the charge (in view of the very full presentation of the defendant’s contention as to how he came in possession of the watches, as accounting for his possession, and a full and ever-repeated instruction to the effect that if. the watches came into his possession by purchase from a thief, the defendant could not be properly convicted, and as the evidence in his behalf and his own statement presented only that theory as accounting for that recent possession) are not well founded." We agree with him. “ Whether an explanation which the accused makes of his possession of property recently stolen is consistent with his innocence is exclusively a question of fact for determination by the jury, and this ■court has no right to interfere with that determination, unless it is wholly unsupported by the evidence, or by any reasonable theory deducible therefrom. Jester v. State, 23 Ga. App. 132 (1) (97 S. E. 563).

Judgment affirmed.

Broyles, C.J., and Luke, J., concur.


author: Broyles, C. J.

text:
    11820.
    Snead v. The State.
    Decided November 9, 1920
    Conviction of involuntary manslaughter; from Thomas superior court—■ Judge Thomas. August 17, 1920.
    The only grounds of the motion for a new trial other than the general grounds relate to the charge of the court that “it is a rule of law, if a witness swears wilfully and knowingly falsely in a matter material to his testimony in the case, then the evidence of such witness is to be disregarded entirely, unless corroborated by the circumstances of the case or other credible evidence." It is contended that although this is correct as an abstract principle of law; it was not authorized by the evidence, “the only attempt to impeach any witnesses being by the method of proving contradictory statements made as to matters relevant to the witness’s testimony and to the case;" and that after the court had.thus undertaken to charge upon the subject of impeachment, the failure to charge anything further on that subject was error; that the court should have charged on “the weight, if any, that should be given to the testimony of any witness' whom the jury might find to have been successfully impeached," and should have charged the rule of law. providing for the impeachment of contradictory’statements previously made by him as to matters relevant to his testimony and to the case. Counsel cited: 125 Ga. 269 (2); 17 Ga. App. 561 (2).
   Broyles, C. J.

The verdict was demanded by the evidence, and the special grounds of the motion for a new trial are without merit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Eldon L. Joiner, for plaintiff in error.

Clifford E Hay, solicitor-general, contra.


text:
    11824.
    Davis v. The State.
    Decided November 9, 1920.
    Accusation of cheating and swindling; from city court of Cairo — Judge Eigsby. August 23, 1920.

      W. Henry Duckworth, for plaintiff in error.

      Ira Carlisle, solicitor, contra.
   Bloodworth, J.

As the only grounds of the motion for a new trial in this case are those which complain of the verdict, and as there is evidence sufficient to support the verdict, which has the approval of the presiding- judge, the verdict must stand.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    11831.
    Early v. The State.
    Decided November 9, 1920.
    Accusation of violation of liquor law; from city court of Macom—Judge G-uerry. August 13, 1920.

      Olin J. Wimberly, Grady Gillon, for plaintiff in error.

      Roy W. Moore, solicitor, H. S. Strozier, contra.
   Bloodworth, J.

There is evidence to authorize the verdict, which has the approval of the trial judge; no error of law appears, and this court will not interfere.

Judgment affkmed.

Broyles, C. J., and Luke, J., concur.


text:
    11839.
    Ivey v. The State.
   Broyles, C. J.

1. The accusation charged, in substance, that the accused had, controlled, and possessed intoxicating liquors or beverages; ' and in the excerpt from the charge of the court to which exception is taken the jury were instructed, in substance, that if they found, from the evidence, that the defendant had, controlled, or possessed intoxicating liquors or beverages in the county on the date alleged in the accusation, or within two years prior to that time, they should return a verdict of guilty. There was no substantial error in the excerpt complained of.

Decided November 9, 1920.

Accusation of possession of liquor; from city court of Black-shear— Judge Mitchell. August 3, 1920.

The accusation charged that the accused had, controlled, and possessed “certain alcoholic, spirituous, vinous, malted, and fermented liquors and alcoholic compound and malt liquors, which can be diluted and when so diluted may be used as a beverage and will produce intoxication; the same not being pure alcohol to be used for medicinal, mechanical, and scientific purposes, and not being wine to be used for sacramental purposes.” In the instruction referred to in paragraph 1 of the decision, the court, after the words “these named liquors or beverages, "consisting of any spirituous, vinous, malt, or fermented liquors,” added: “or other intoxicating liquors or beverages;” and it is alleged that this was error, because the jury were thereby authorized to convict if they found that the accused had “other intoxicating liquors or beverages” than the liquors described in the accusation; also “because under the charge of the court the jury would have been authorized to convict even though the defendant might have been in possession or control of liquors or beverages which were not intoxicating, while the accusation alleged that all the liquors he was charged with having, controlling, or possessing were such as might be used as a beverage and would produce intoxication; and it was a vital issue whether the testimony of the only witness offered by the State established the fact that the only liquor testified about by him was such as might be used as a beverage and was intoxicating.”

On the trial the sole witness for the State was the sheriff, who testified that at a “moonshine still” in a branch he “saw the defendant walking around the still from place to place, and he appeared to be in charge of it; there was a fire under the still and a charge was on;” the witness heard voices of others,, who got away, but he saw nobody but the defendant; the defendant also started out, and the witness arrested him. He further testified: “There were about 400 gallons of mash or buck there at the still. This mash or buck had reached different stages, some more advanced for stilling than others, some of it more of a mash and some the liquid had come to the top and was clear, and the substance had gone to the bottom. It was intoxicating .and could be used as a beverage. They had been digging a well near the still, and when the defendant started out of the branch he • had some of the mash or beer on his clothes and also some of the mud from the well. I never saw the defendant doing anything at the still except walking around there from place to place. I did not see him put anything in the still or put any fire under the still. . . We did not find anything there in the way of liquors but this mash or buck, and none of it had been stilled. I know this mash or buck was intoxicating because I had seen some that looked like the same kind tried on some hogs. I did not drink any of it. I do not know what was in it. I know that there was some meal in it. I have had experience with stills before.” Witnesses for the defendant testified that the mash or buck found at the still could not be used as a beverage.

2. In view of the strong counter-showing made by the State, the court did not err in overruling the 7th and 8th grounds of the motion for a new trial, which were based respectively upon alleged bias and prejudice of one of the jurors, and upon alleged newly discovered evidence; nor did the court err in overruling the defendant’s objections to certain portions of an affidavit submitted by the State in its counter-showing to the defendant’s showing in support of these grounds.

3. The evidence was sufficient to authorize the jury to find that the mash or “buck” in question was intoxicating, and that it could be used as a beverage; and the evidence, while circumstantial, was also sufficient to authorize a finding that this intoxicating beverage had been found in the possession or control of the defendant, and to exclude every reasonable hypothesis save that of his guilt.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

S. F. Memory, Julian W. Walker, for plaintiff in error.

S. Thomas Memory, solicitor, contra.


author: Smith, J.

text:
    11422.
    Central of Georgia Railway Company v. Tribble.
   Smith, J.

1. The court’s instructions in reference to the use of certain annuity and mortality tables which had been put in evidence were erroneous in some material particulars, and under all the facts of the case, including the amount of the verdict ($10,000), this court is unable to say that the error was harmless to the defendant, and that these erroneous instructions did not mislead the jury and cause them to return a larger verdict than they otherwise would have done. Another trial of the case is therefore required. See, in this connection, Florida Central &c. R. Co. v. Burney, 98 Ga. 1 (26 S. E. 730), and Ransone v. Christian, 49 Ga. 491 (2).

Decided November 9, 1920.

Action for damages; from Monroe superior court — Judge Searcy. March 8, 1920.

As to the use of annuity and mortality tables as a means of arriving at the present cash value of prospective earnings, in estimating damages, the court gave to the jury certain instructions set out below, which the motion for a new trial alleges were “error and calculated to confuse and mislead the jury/’ for the following reasons: (a) Movant contends that the jury might have understood therefrom that they could use both the mortality table and the annuity table in the same calculation, and the judge nowhere instructed the jury that these tables could not be used conjunctively in the same calculation and did not instruct the jury as to the real purpose the tables were intended to subserve, (b) The court, as movant contends, instructed the jury that the mortality table could be used to reduce the gross • amount of the plaintiff’s alleged loss to its present cash value. Movant contends that the object and the only use of the mortality table is to show the plaintiff’s expectancy in years, and that the court should have instructed the jury that having found the plaintiff’s expectancy from the mortality table, they could, by multiplying his annual loss by his expectancy in years as thus found, determine his gross loss as shown by that table, and that having found his gross loss in this manner, they must reduce the gross loss to its present value, (c) Movant contends that neither the mortality table nor the annuity table can be correctly used without first ascertaining from the evidence the amount in which the plaintiff’s earning capacity has been reduced per annum, — in other words, his annual loss, — and movant contends that the court nowhere instructed the jury to find the plaintiff’s annual loss., (d) The court, as movant contends, instructed the jury to find the plaintiff’s expectancy in years from the mortality table, but nowhere instructed them how to caleulate his damage from his expectancy and nowhere instructed them to multiply his annual loss by his expectancy in years, in order to ascertain his gross loss, and nowhere explained the object of finding the plaintiffs expectancy, (e) It is contended that the court erred in not giving certain instructions set out in this ground, which mainly are in the language of forms of instructions recommended in the opinion of Lumpkin, J., in the case of Florida Central &c. R. Co. v. Burney, 98 Ga. 6 et seq.

2. None of the remaining special grounds of the motion for a new trial shows material error.

3. As there must be another trial of the case because of the error pointed out above, the sufficiency of the evidence to support the verdict, or the question whether the judge exercised his discretion in overruling the general grounds of the motion for a new trial, is not passed upon.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

The instructions complained of were as follows: “If you find any damages in favor of the plaintiff, you could not give the gross amount that he would earn during his life, but you must reduce such an amount to the present cash value thereof, figured on a basis of seven per cent, per annum. The present value of a given sum may be arrived at by dividing said given sum by one dollar plus the legal rate of interest at seven per cent, for the given time. This is just one rule by which this calculation may be made. The jury, however, is not bound to adopt this method, or any method, but are at liberty to employ any method or rule known to them and to proceed by that, provided it is a correct rule. It is your duty to determine this issue, and you should do it correctly; and, to aid you in this determination, certain tables have been put in evidence, which you can use on this branch of the case if you desire. You are not obliged to use them. One of these tables is called a mortality table, and is designed to show the expectancy of life of persons of given age, of average health and constitution. The method of using this table would be to look under the column marked ‘Age’ until you find the figures representing the age of the plaintiff as shown by the evidence, if the age appears; then you would look under the column marked ‘Expectation, years,’ to the right of the age column, and you will find figures there representing the expectancy of years of the average health and constitution of a person of the age of the plaintiff, and, according to this table, these figures would represent -the number of years of expectancy of such person, — that is, the number of years he might be expected to continue in life; but whether these figures would or would not represent the plaintiff’s expectancy you determine from the evidence, either increasing, decreasing, or adopting the figures thus ascertained, as you determine is right.

“The other table is called a table of annuity, and is designed to show the present cash value of an annuity of a dollar in favor of persons of 'a given age. This table has three columns, — one marked ‘Age/ one marked ‘Six per cent./ and one ‘Seven per cent/ The method of using this table is to look under the age column until you find the figures representing the plaintiffs age at the time of his alleged injury; then look under the seven per cent, column opposite this age and you will find certain figures representing dollars or fractions of dollars. The meaning of this is that the annuity of a dollar, of the age of the person therein shown, would be the amount expressed in the seven per cent, column opposite the figures representing his age; that is, that these figures would represent the cash value of an annuity of a dollar. Then, by taking the figures representing the amount of the plaintiffs loss by reason of his diminished power and capacity to labor, if you find such, and multiplying this amount by the figures representing the present cash value of one dollar, as ascertained in the manner above described, you will get the amount representing the cash value of the sum found and allowed, if any, according to the table. Whether this sum would represent the correct amount you allow on this item you must determine for yourselves, either increasing, diminishing, or adopting the figures ascertained, as you may think right.”

As to the exceptions to these instructions the trial judge, in his order overruling the motion for a new trial, said: “Exception is taken to the charge of'the court as to the use of the mortality and annuity tables. If the exception is conceded to be meritorious, yet if the extent and character of plaintiffs ■ injuries are considered, the pain and suffering endured by him, it could not be said that the verdict on this element of damages alone is at all excessive, or even compensates him therefor; so it must follow that this charge, which related to another and different element of damages, was harmless, even if erroneous.”

Cleveland & Goodrich, Persons & Persons, for plaintiff in error.

R. L. Berner J. M. Fletcher, E. J. Reagan, contra.


text:
    10507.
    Watson v. Burnley.
    Decided November 10, 1920.
    Complaint; from McDuffie superior court—■ Judge Henry C. Hammond. March 12, 1919.
    In her petition against Thomas E. Watson, filed August 13, 1918, Mattie Belle Burnley alleges, in brief, that in February, 1904, he and J. D. Watson, who was then her husband but from whom she was separated, entered into a contract with her for the purpose of making a settlement of a proceeding for alimony, then pending, which she had instituted against J. D. Watson, and the proceeding was settled by the contract. It is alleged that by the terms of this contract she “was to receive $25 per month so long as she should live and remain single, and without any other contingency whatsoever, and by the terms of said contract said Thomas E. Watson became surety thereon and bound himself for the true payment of said amount on the first day of each month as above stated;” that he jiaid the $25 monthly to her from the time of the making of the contract up to and including April, 1918, when J.. D. Watson died, but not for any subsequent month, and is due her this agreed sum for each of the four ensuing months (including the month of the filing of the petition), and refuses to pay the same; and she sues for the aggregate sum of $100. It is alleged that she was divorced from' J. D. Watson after the contract was made, and her former name, in which she sues, was restored to her. A copy of the contract was attached to the petition.
    The defendant demurred on the grounds: (1) that no cause of action is set forth; (2) that the alleged contract is contrary to public policy, in that it provides for a divorce and dissolution of the marriage contract, as one of the contingencies on which the alleged contract shall be carried out; and (3) that the alleged contract is in restraint of marriage, after divorce, and is therefore contrary to public policy and void. The demurrer was overruled and the case came to the Court of Appeals on exception to that ruling. The controlling questions in the case were certified by this court to the Supreme Court; and those questions, with the contract, and the opinion of that court, appear in 150 Ga. 460.
   Smith, J.

In accordance with the rules of law governing this case, as set forth by the Supreme Court in response to questions certified to it by this court (Watson v. Burnley, 150 Ga. 460, 104 S. E. 220), the judgment of the court below overruling the demurrer .to the petition is Affirmed.

Jenkins, P. J., and Stephens, J., concur.

Sam. L. Olive, J. Glenn Stovall, for plaintiff in error.

J. B. Burnside, contra.


author: Jenkins, P. J.

text:
    11261.
    Glover-White Mercantile Co. v. Ausburn.
    Decided November 10, 1920.
    Action for damages; from Floyd superior court-—-Judge Wright. January 12, 1920.
    The plaintiff offered to buy from the defendant certain cottonseed, stating that he wanted a variety known as Cooke’s seed, and no other, and was willing to pay a higher price if he could get that variety of seed. The defendant offered to sell to him Cooke’s cottonseed, and did sell to him certain seed which the defendant represented to be Cooke’s seed. He planted it, and when the crop matured he found that it was not Cooke’s, but another variety of seed. He sued for breach of contract, and by demurrer the defendant contended that no cause of action was set forth in the petition, and that the damages asked were too remote and speculative. The plaintiff then amended the petition and alleged that the "defendant well knew at the time said seed were purchased the purpose for which they were bought, and also knew that said seed were not of the variety called for under the contract, and the defendant, wilfully and with the knowledge that said seed were not Cooke’s seed, fraudulently, for the purpose of selling them to plaintiff at the high price named, represented that seed to be Cooke’s seed.” To the petition as amended the defendant demurred generally and specially, contending that there was no cause of actign, and that the plaintiff was attempting to .set up therein a cause of action ex contractu coupled with a cause of action ex delicto. The court overruled the demurrer, and the defendant excepted.
   Jenkins, P. J.

One suing for breacli of the specific terms of an express contract cannot by amendment convert the suit into an action for tort, based on fraud and deceit, nor can he join such an action on contract with one based on tort. Brooke v. Cole, 108 Ga. 251, 252 (33 S. E. 849); Wolff v. Southern Ry. Co., 130 Ga. 251 (60 S. E. 569). Judgment reversed.

Stephens and Smith, JJ., concur.

Wright Willingham, L. H. Covington, for plaintiff in error.

M. B. Edwards, contra.


author: Smith, J. Jenkins, P. J.,

text:
    11272.
    HINES, director-general, v. MALONE.
    Decided November 10, 1920.
    Certiorari; from Fulton superior court — Judge Pendleton. December 18, 1919.
   Smith, J.

1. “ While the municipal court of Atlanta has jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not differ from that of the justice’s courts.” Walker v. Cliff Drug Co., 23 Ga. App. 722 (2) (99 S. E. 392). The demurrer to the petition as amended was therefore properly overruled.

2. It appears that, just before the arrival of a passenger-train at the terminus in Atlanta, the porter of the parlor-ear attached to the train proceeded, in pursuance of a general custom, to collect up and carry out the unchecked baggage of the occupants of the parlor-car, including on this occasion that of the plaintiff, for the purpose of depositing the baggage, immediately upon the car’s arrival at its destination, out on the platform of the station, to be thereafter identified and claimed by the respective owners as they would alight from the car. No contention is made here that the servant was not acting within the scope of his employment. Held: An occupant and patron of a Pullman or parlor car has the right to assume that the company maintaining that service will exercise ordinary care in protecting his baggage, and in the performance of its duties will do no act. which would subject the same to unreasonable or unnecessary hazard. Pullman’s Palace Car Co. v. Harvey, 101 Ga. 733 (28 S. E. 989). Thus it became a question of fact, to be determined by the judge of the municipal court trying the case without a jury, as to whether or not the porter, the servant of the defendant company, was in the exercise of ordinary care in handling the baggage of the plaintiff, or whether he was negligent in this particular. This question of fact was determined against the defendant, and the judge of the superior court, on certiorari, sustained the finding of the trial magistrate; and therefore the judgment will not be interfered with by this court.

Judgment affirmed.

Stephens, J., concurs. Jenkins, P. J., concurs specially.

Brewsler, Howell & Heyman, Hugh Howell, for plaintiff in error.

Moore & Pomeroy, Coles & Savage, contra.

Jenkins, P. J.,

concurring specially. I agree with the legal proposition stated in the majority opinion that “an occupant and patron of a Pullman or parlor car has the right to assume that the company maintaining that service will exercise ordinary care in protecting his baggage, and in the performance of its duties will do no act which would subject the same to unreasonable or unnecessary hazard.” However, in this case the evidence seems unmistakably tp show both that the plaintiff consented to his baggage being taken out by the porter for the purpose indicated, and that the plaintiff (a traveling salesman) fully knew and understood the servant’s purpose and intent in thus acting in accordance with the usual and general custom. Did not both of these facts appear, no difficulty would be presented in affirming the judgment of the court below. But the code expressly provides that “no person shall recover damage from a railway company for injury to . .' property, where the same is done by his consent.” Park’s Code, § 3781; Coweta County v. Central of Ga. R. Co., 4 Ga. App. 94, 99 (60 S.E.. 1018). It follows that if the evidence completely and unmistakably exonerates the porter of the parlor car from the commission of any act of negligence' and from the omission of any duty owing by him -in the protection of the plaintiff’s property, except his conduct in thus exposing the same to necessary, palpable, and unavoidable risk of being wrongfully or mistakenly carried away by some other occupant of the car, the company would not be liable for loss resulting solely from an act thoroughly understood and actually consented to by the owner himself.

This special concurrence is added to the opinion for the reason that it seems obvious to the writer that there might be cases where the occupants of the parlor car were so numerous that it would be utterly unreasonable-to impose upon the porter the duty of identifying and matching baggage with passengers as each passenger would alight and proceed to select and claim his own. If the only shortcoming of the porter consists in a failure to perform an unreasonable, impracticable, and impossible task, actually and knowingly delegated to him by the owner, and if after exercising liis best efforts he fails in the performance of the impossible, then it would not seem that the patron should be permitted to complain of the natural and proximate consequences arising solely from an act to which he had both actually and knowingly consented. In the instant case, however,, it appears that when the train reached Atlanta, there were in fact but eight passengers occupying the parlor car, and although it is true that the plaintiff actually and knowingly consented to his baggage being placed out on the platform in accordance with the usual custom, I do not feel willing to say as a matter of law that in this particular case the porter could not have prevented, by the exercise of proper diligence, the commission of any mistaken or wrongful act whereby the property became lost. While, as stated, there might be cases where this would be true, at best it would be most difficult to draw the line, as a matter of law, as to when the task, even though knowingly consented to, w'as such as was reasonably . impossible of performance; and the most rational solution in this case, as in most cases, would be for the jury to say, according to the facts before it, whether there had been dereliction in a task which might reasonably have been performed. Although the plaintiff appears in this particular instance to have consented to his baggage being taken out, and though he appears to have fully understood the purpose and intent of the servant’s act in so doing, and though the evidence seems unmistakably to exculpate the servant from any act of negligence save in his failure to prevent what was probably a mistaken act on the part of some other passenger, still, under the facts of this particular case, it was for the judge to say, sitting both as judge and jury, whether the loss could have been prevented by the exercise of proper diligence on the part of the servant; the question not being whether the porter was negligent in carrying out and depositing the baggage for the purpose indicated (since the plaintiff knowingly consented to this being done), but whether after doing so he could even then, under the facts of this particular ease, have protected it from loss.


text:
    11275.
    JONES v. TEASLEY et al., executors.
    Decided November 10, 1920.
    1. (a) “Where any suit is instituted . . by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the „ . . deceased person as to transactions or communications with such . . deceased person.” Civil Code (1910), § 5858 (1). The fact that evidence by a disinterested witness may have been adduced for the plaintiff in support of such a transaction would not .operate to alter the rule. Dowdy v. Watson, 115 Ga. 42 (7) (41 S. E. 266); Jewell v. Walker, 109 Ga. 241 (6) (34 S. E. 337); Webb v. Simmons, 3 Ga. App. 639 (1) (60 S. E. 334); Chamblee v. Pirkle, 101 Ga. 790, 792 (29 S. E. 20); Cato v. Hunt, 112 Ga. 139 (37 S. E. 183).
    (&) “A ground of a motion for a new trial to the effect that the court erred in excluding the testimony specified as a whole is not a good ground, when a part of the testimony so specified is objectionable.” Ellis v. Riley, 18 Ga. App. 778 (90 S. E. 724) ; Desverges v. Marchant, 18 Ga. App. 248 (2) (89 S. E. 221).
    2. Any averment distinctly and plainly set forth in a petition shall be taken as prima facie true, unless it is denied by the defendant’s answer, or the defendant shall state in his ans'wer that he is unable either to admit or deny such affirmation, because of the want of sufficient information. Civil Code (1910), § 5539; Southern Bell Tel. Co. v. Shamos, 12 Ga. App. 463 (77 S. E. 312).
    3. The third ground of the amendment to the motion for a new tidal furnishes no sufficient reason why the verdict should be set aside. The rejected testimony, even if relevant, could not of itself have authorized a verdict for the defendant.
    Complaint; from Hart superior court-—- Judge Cobb presiding. December 15, 1919.
    The executors of T. W. Teasley, deceased, sued Thomas Jones and Judy Jones, as joint principals, on a promissory note signed by them as such and made payable to T. W. Teasley & Company. Paragraph 4 of the petition alleges, that T. W. Teasley was the sole member of the firm operating under the name of T. W. Teasley & Company, and that the note belonged to him at the date of his death. Judy Jones filed an answer, denying liability and setting up the defense of non est factum, in that she had never signed the note sued on. Her answer states that she can neither admit nor deny the allegations contained in paragraph 4, but gives no reason for such failure. The signatures of both Judy Jones and Thomas Jones, her husband, purport to have been executed by mark, and to have been witnessed by Charles J. Teasley. On the triál Charles J. Teasley testified that the note was freely and voluntarily signed by Judy Jones in his presence after it had been read over to her by T. W. Teasley. There was no attempt to impeach the credibility of this witness. The jury found a verdict for the plaintiff, and she made a motion for a new trial, which was overruled. The special grounds of the motion were in substance as follows: (1) The court erred in excluding the following testimony offered by the defendant in her own behalf: “No, sir, I did not sign it. In regard to making my mark, no, sir, I writes my name. I know nothing about the nóte at all. I never had any business dealings in the store of T. W. Teasley. Tom attended to all business. Tom was my husband.” The sole ground of exception to the exclusion of this testimony is stated to be that it should have been admitted as in rebuttal 'of testimony already given by the witness for the plaintiff. (2) There was no proof that the note belonged to said T. W. Teasley at the date of his death. (3) J. E. Leard was not allowed to testify for the defendant as follows: “I have been knowing Judy Jones a long time, ten or twelve years and have had a great many business dealings with her. She always wrote her name.”

      McCurry & Zellers, for plaintiff in error.

      Skelton & Matheson, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) Under the rules of the common law a party or person interested in the litigation was incompetent to testify in his own interest. In removing this disqualification the law as now embodied in section 5858 of the Civil Code (1910) still retains by way of exceptions certain limited and specified portions of the former general inhibition, one of which, as abridged, is literally quoted in the first division of the syllabus. The Supreme Court has said that these remaining exceptions to the general rule, as provided for by this section, “ are to be literally construed, and nothing will be added to or taken from them by judicial construction.” Hawes v. Glover, 126 Ga. 305, 315 (55 S. E. 62); Hendrick v. Daniel, 119 Ga. 358, 360 (46 S.E. 438). The plaintiff in error does not dispute the proposition that her proffered and rejected testimony related to a transaction had with the deceased, but bases her contention as to its admissibility entirely upon the theory that, notwithstanding the prohibition of this code-section, it was nevertheless erroneous to permit the testimony of the plaintiffs disinterested witness to stand without allowing her by her own evidence to rebut it. Under the well-established rule governing the construction of the code-section referred to, it would not be possible thus to add to or take from its plain and literal provisions. In the case of Dowdy v. Watson, 115 Ga. 42 (7) (41 S.E. 266), the Supreme Court held: “When in a suit on a promissory note instituted in the name of a partnership against the maker, to which the defendant interposed a plea of non est factum, it was admitted at the trial that one of the members of the partnership was dead, and the defendant offered as a witness in his own behalf to testify that he did not execute the note sued on, and it appeared from other testimony than that of the defendant himself that a transaction culminating in the execution of the note sued on was conducted by the defendant solely with' the deceased partner, the defendant was not a competent witness to prove that he did not execute the note, or to contradict the testimony of the other witness that a transaction resulting in the execution of the note sued on was conducted with the deceased partner.” Since a portion of the evidence specified as a whole by the first special ground of the motion for a new trial is thus clearly objectionable, the ground itself is defective, and the rejection of that portion of the proffered testimony therein set forth, relating to defendant’s ability to sign her own name and her custom and habit in doing so, cannot, under this ground, be considered.

The third special ground undertakes, however, to present the same question as does the rejection of this portion of the evidence embraced in the first ground. The third ground complains that J. E. Leard was not allowed to testify as follows: “ I have been knowing Judy Jones a long time, ten or twelve years, and have had a great many business dealings with her. She always wrote her name.”. It is a general and well-recognized rule of law that proof of collateral facts not pertaining to the transaction in litigation, and which shed no light on the particular issue to be determined, is not permissible. The learned trial judge may have been correct in excluding the evidence as here offered, in accordance with the familiar rule or principle just stated, since it might reasonably be taken and construed as an effort on the part of the defendant to show her conduct in other independent and particular transactions had with the witness, rather than a purpose to show her ability to sign her own name and a general custom or habit on her part of doing so. We are inclined to this view. Were we to consider it the other way, that is that the purpose and intent of this testimony was merely to show her capacity to sign her own name and her general habit and custom of doing so, then we would be constrained to hold that these circumstances were such as could ordinarily be considered by the jury in determining any issue made by the evidence as to whether the note was signed by a mark. "A habit of doing a thing is naturally of probative value as indicating that on a particular occasion the thing was done as usual, and, if clearly shown as a definite course of action, is constantly admitted in evidence.” 1 Greenleaf on Evidence (16th ed.) 53 § 14 J; Leonard v. Mixon, 96 Ga. 339, 241 (33 S.E. 80, 51 Am. St. Rep. 134); Burch v. American Grocery Co. 125 Ga. 159 (53 S. E. 1008); Western & Atlantic R. Co. v. State, 23 Ga. App. 225, 226 (3) (97 S.E. 878). Thus, while it is true that if the evidence offered could be construed only as an effort on the part of the defendant to show her ability to sign her own name, and that it was her general custom and habit to do so, it would be admissible as a fact or circumstance which the jury would have the right to consider in determining where the preponderance of the evidence lay, we still do not think that such a circumstance taken by itself and alone would have justified a verdict for the defendant under the evidence in this case. In civil cases a preponderance of evidence is ordinarily considered sufficient to produce mental conviction. By a preponderance of evidence is meant the superior weight of evidence upon the issues involved. "In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, and the probability or improbability of their testimony, their interest or want of interest, and also their' personal credibility, so far as the same may legitimately appear from the trial. The jury may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number.” Civil Code (1910), § 5733.

It will be noted that in the statement of the elementary principles just made, the rules mentioned relate to matters which may be considered in determining where the preponderance of the evidence lies. Where there is no evidence adduced on behalf of one of the litigants, a verdict is demanded against him; and in such a case, that is, whore the proof is all one way, the opportunity does not and can not arise for the jury to apply these rules or any rules in determining on which side lies the greater weight of evidence. Tompkins v. Corry, 14 Ga. 118. Of course, if any of the proved facts and circumstances of the case are inconsistent with the sworn testimony, such testimony, even though not otherwise contradicted, may for that reason be rejected. Detwiler v. Cox, 120 Ga. 638 (48 S. E. 112). The same reasoning would apply where the proved circumstances are such as go far enough to render the sworn testimony incredible, impossible, or inherently improbable. Pallon v. State, 117 Ga. 230 (5) (43 S. E. 533). "This court can not grant a new trial where the evidence is conflicting; it must do so where there is no evidence to support the verdict. Between conflicting evidence and a total want of evidence lies the debatable territory where this court must determine whether the evidence is of the character demanded by law, and sufficient to maintain the verdict in the particular case under consideration.” Patton v. State, supra. In a case where the evidence made issues of fact, the rejected evidence might have furnished a circumstance which the jury could have properly considered in reaching a conclusion as to whore the preponderance of the evidence lay. It might thus, as it were, furnish a collateral prop to the evidence which supports the verdict, but could not furnish the support itself upon which a verdict must stand. The mere fact that a person was sufficiently literate to be able to write out her own name, and was in the habit of doing so, is not only not inconsistent with the evidence of the unimpeache'd witness in the case, but such a circumstance does not render it inherently absurd or improbable that she together with her husband signed the instrument by mark, as shown- by the undisputed evidence of an unimpeached witness. See Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714, 717 (57 S. E. 1076).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
      11311.

    Harrison et al. v. Douglas.
    Decided November 10, 1920.
    . Action on bond; from city court of Nashville — Judge Smith. December 19, 1919.
    As to the unconstitutionality of the code sections referred to in paragraph 1 of the decision, which relate to the taking of depositions without commission, ground 2 of the amendment to the motion for a new trial states, among other objections presented in writing as to three sets of depositions introduced in evidence, that the defendant objected to their introduction because: “1st. The law allowing the talcing of depositions in the State of Georgia, under Code of 1910, sections 5905 to 5909 inclusive, is unconstitutional both as to the constitution of the State of Georgia and of the United States. 2d. The said law is unreasonable and unjust and is against the law. and the constitution of Georgia as contained in the bill of rights, article 1 of the constitution of Georgia, section of the Code of 1910, 6381, as it deprives him of Ms right, by due process of law, to cross-examine the witnesses sworn against him. 3d. This law for the taking of depositions (especially in this case) is in violation of the constitution of the United States of America, as it is a law in derogation of the rights of a citizen of Georgia to be heard in his defense by due process of law, in regard to his property, as the notice served upon him for the taking of the depositions deprives him of Ms right of cross-examination of witnesses called against him, by requiring of him an impossibility, which is unreasonable and unjust and in derogation of article 8, section 6700, of the constitution of the United States, as contained in the Code of Georgia of 1910, section 6700; therefore unconstitutional and unláwful; and the said deposition should be excluded from evidence.”
   Smith, J.

1. This case having been transferred to the Supreme Court for decision as to the sufficiency of ground 2 of the amendment to the motion for a new trial, attacking the constitutionality of sections 5905 to 5909, of the, Civil Code of 1910, and that court having transferred the case back to this court with a ruling that the assignment of eror is too general and indefinite to raise a constitutional question, this court will not consider that ground.

2. Under the rulings of this court in this case (16 Ga. App. 693, 696, 85 S. E. 970), the only defenses open to the defendant were: (1) that he never received the claims alleged to have been sent to him for collection; (2) that he had never collected them, or any of them;' and (3) that he had remitted to the proper parties all money collected on the claims that were sent to him for collection. On the subsequent trial the defendant admitted that he had received the claims and that he had collected the amounts due on them to the extent of the verdict rendered against him. When he admitted that he had received the claims for collection and admitted that he had collected the amount for which the verdict was rendered, the burden of proof was upon him to show that he had remitted to the proper parties the money so collected. He successfully carried this burden, his evidence was not rebutted, and therefore the trial judge erred in refusing a new trial on the general grounds.

3. Under the foregoing rulings it is unnecessary to pass upon the other grounds of the motion for a new trial, as they are all dependent upon these rulings.

Judgment reversed.

Jenkins, P. J., and, Stephens, J., concur.

In a preceding part of this ground of the motion for a new trial other objections to the introduction of the depositions are stated as follows: “The said depositions should not be allowed in evidence against the defendants, for the reasons that there were three notices for the taking of the said depositions, signed by the same counsel and bearing the same date, served upon him and his sole counsel, J. W. Powell, calling upon him and his said attorney to be present on the 6th day of May, 1916, simultaneously before three different officers, and at Atlanta, Ga., Knoxville, Tenn., and Wheeling, W. Va., which was and is an impossibility and beyond human capacity, thereby excluding defendants from their right to cross-examine the witnesses, as they are entitled to do under the law, and prevented them from exercising their right to cross-examine said witnesses as to the source of their testimony, whether or not their evidence was hearsay or from their own knowledge, their means and opportunity for knowing the facts to which they testified, and in fact excluding the defendants from their right under the law to cross-examination of all witnesses for the plaintiff, which is specially provided by law; defendants having only one attorney to represent them, these witnesses residing miles apart and in different States and cities.”

See 147 Ga. 636 (1).

J. W. Powell, W. G. Harrison, for plaintiffs in error.

W. D. Buie, contra.


text:
    11366.
    Rose v. Hines, director-general.
    Decided November 10, 1920.
    Complaint; from city court of Savannah-—Judge Freeman. January 5, 1920.
    The suit was filed October 20, 1919. The Atlantic Coast Line Railroad Company was originally one of the defendants, but was stricken by amendment. The petition alleges: “Under and by virtue of a proclamation of the President of the United States and the laws of Congress relative thereto, Walker D. Iiines, director-general of railroads of the United States, and his predecessors in office, is now and was on April 12, 1918, controlling and operating” the Atlantic Coast Line Bailroad Company. That company “and Walker D. Hines, director-general as aforesaid, maintain and operate a Belief Department, which is a department of the company’s service, of the nature of a mutual benefit association, the object of which is the establishment and management of a fund to be known as the ‘Belief Fund,’ for the payment of definite amounts to employees contributing thereto, who are known as members of the Belief Fund, when, under the regulations of the said Belief Department, they are entitled to such payment, by reason of accident or sickness. The Belief Fund consists of contributions from members thereof, and benefits due to members by reason of sickness or disability are guaranteed by the said Atlantic Coast Line Bailroad Company.” On April 12, 1918, plaintiff was in the service of the said company and in good standing as a member of the relief department, holding a certificate of membership, a copy of which is attached to the petition; and while actually on duty on one of the trains of the company on that date he suffered a stroke of paralysis, which totally incapacitated him from further work, and by the terms of his certificate in the relief fund and the regulations governing the same he is entitled ,to the benefits provided by the relief fund, to wit, the sum of $1 per day for 52 weeks, except $42 which was1 paid to him, and the defendant refuses to pay his claim. He sues the said director-general for $317 and interest.
   Jenkins, P. J.

1. Failure to show jurisdiction is an amendable defect in a petition, and if the omission is not challenged by demurrer, with opportunity given to amend, a dismissal which has been entered for another and different reason will not be upheld because of such omission. Burton v. Wadley Southern Ry. Co., 25 Ga. App. 599 (103 S. E. 88).

2. The -claim against, the • railway company having arisen out of a liability incurred by its relief department as incident to the operation of its railway system, an action to enforce the claim would be against the railway company,but for Federal control. Washington v. Atlantic Coast Line R. Co., 136 Ga. 638 (71 S. E. 1066). The act of Congress of March 21, 1918, and the rules promulgated by Federal authority in pursuance thereof did not intend either to extinguish or impair, but, on the contrary, expressly preserved, the rights of parties to prosecute to judgment, in the name of the director-general of railroads as defendant, any cause of action that they had against the railway companies under the Federal, State, or common law. Hines v. Zellner, 25 Ga. App. 272, (103 S. E. 97). The court erred in dismissing the suit on general demurrer.

Judgment reversed.

Stephens and Smith, JJ., concur.

A general demurrer to the petition was sustained in an order in which the judge' said: “ Whatever the plaintiff’s rights may be as against the Atlantic Coast Line Bailroad Company, it seems to me that the petition is insufficient to make a case against demurrer, because it does not appear either that the defendant took over the relief department of the company, or that under the law governing the railroad administration, or the orders pursuant thereto, so far "as I am advised thereof, he was authorized to do so.”

Oliver & Oliver, W. S. Connerat, for plaintiff.

Osborne, Lawrence & Abrams, for defendant.


author: Pee Cueiam.

text:
    11398.
    Holtzendorf v. McNeil.
   Pee Cueiam.

1. The judge may supply omissions in a bill of exceptions by interlineation or note, if the interlineation or note does not have the effect of showing that some of the averments in the bill of exceptions are untrue. Jarriel v. Jarriel, 115 Ga. 23 (41 S. E. 262). Thus, a note by the judge, not in conflict with the averments made in the bill of exceptions, to the following effect, “ At the trial term an oral motion was made by defendant’s counsel to dismiss plaintiff’s petition, upon the ground that no cause of action was set out, same was overruled, and no exceptions pendente lite were filed to said ruling,” would not authorize dismissal of the bill of exceptions.

2. An export such as a dentist, who has qualified as such, can testify as to the condition of any matter of thing pertaining to his particular business or trade, and, after he has thus established as an expert the condition of the thing' involved, its value becomes a matter of opinion; • and his opinion as to value, whether the question of abstract value pertains to his trade or not, when given as an opinion upon a question which necessarily involves an Opinion, is competent for that reason- Central Railroad v. Wolff, 74 Ga. 664 (3); Crump v. Knox, 18 Ga. App, 437 (89 S. E. 586). Thus, the testimony of a dentist, stating as an expert the condition of a tooth which it is alleged was extracted by mistake, followed by his opinion as to its value, was properly admitted. Moreover, counsel for the plaintiff in error, though objecting to the testimony when first offered, did not, when it was offered a second time under the specific ruling of the court, renew the objection; and for this additional reason there was no error in admitting it. Bailey v. Ogden, 75 Ga. 874.

Decided November 10, 1920.

Action for damages; from city court of Valdosta'—Judge Cranford. February 7, 1920.

Tbe action was against a dentist, for alleged negligence of an agent or employee in his office, in extracting two teeth. The trial resulted in a verdict against the defendant, for $500. On the trial a witness for the plaintiff testified that he had been practicing dentistry since 1905. In one of the grounds of the motion for a new trial it is stated that this witness “was permitted to testify before the jury, in response to a question by plaintiff’s counsel in regard to the value of a tooth alleged to have been wrongfully extracted by defendant’s agent, if he (the witness) thought a thousand dollar’s would be excessive, as follows: ‘No, sir, I don’t think it would.’” It is alleged that this evidence was illegally admitted, over the objections of the movant that “such question and the answer thereto called for an opinion of the witness not based upon his experience as a dentist,” that “the witness could not legally express an opinion as to the value of a tooth, ” that “ any answer he might give to the question propounded would be purely a question of abstract opinion on his part,” and that “if the witness undertook to speak as a dental surgeon, his opinion as to the value of a tooth to am individual would be obliged to be tinged with his opinion as a man.”

James M. Johnson, for plaintiff in error.

Franklin & Langdale, A. J. Little, contra.

Judgment affirmed.

Jenkins, P. J., and Stephens and Smith, JJ., concur.


text:
    11408, 11441.
    Gray v. Hines, director-general; and vice versa.

    Decided November 10, 1920.
    Action for damages; from city court of Albany — Judge Clayton Jones. February 14, 1920.

      W. H. Gray, a minor about nineteen years of age, brought suit, by next friend, against Walker D. Hines, director-general of railroads, and alleged: that he was employed by the defendant as a member of a pile-driving crew of the Atlantic Coast Dine Bailroad Company; that on or about September 10, 1918, he, with other employees, under the direct charge of H. B. Donnelly, a foreman of the defendant, was engaged in making repairs on a trestle across Mint river, in Dougherty county, Georgia, and that the repairs required the hoisting of certain timber or cross-ties from the ground under the trestle to the top of it, a distance of some 15 to 18 feet; that he was directed-by the said foreman to bundle and chain the said cross-ties and attach the hoisting rope to them; that he was engaged in this work from 6 o’clock until about 9:30 o’clock a. m., on the day named, when one of the bundles of cross-ties, in being raised, swung against a batton-post or upright, knocking it loose and causing it to fall upon him, inflicting serious and permanent -injuries. He alleged that the defendant was negligent, (1) in hoisting the timber in such proximity to the batton-post as to permit it to come in contact with the batton-post; (2) in not having the' battonpost securely, and properly fastened to the bridge, the drift-pin in the top of it being too short to perform, its function properly or to hold the post securely against such shocks or jolts as the defendant knew or should have known it would be subjected to; and (3) in stripping the trestle of the rails and cross-ties that gave such additional support to the batton-post as to secure it against falling by reason of such shocks as the defendant knew or should have known it would be subjected to.
   Jenkins, P. J.

1. Where a petition against a railroad company is filed, and is later dismissed on motion of' the plaintiff, the allegations therein cannot be introduced in a subsequent action between the same parties, as admissions on the part of the defendant company, where it is not shown that the answer of the defendant cither admitted or failed to deny the averments of the petition. The fact that the petition in the former suit was prepared and signed by an attorney employed for the plaintiff by the railway company, in furtherance of what was then regarded as a friendly suit for the purpose of consummating a settlement of the case, would not alter the rule.

2. The rule of law that a servant assumes the ordinary risks of his employment makes it his duty to exercise his own skill and diligence to protect himself, and applies alike whether the master be engaged in interstate or intrastate commerce.” Hightower v. Southern Railway Co., 146 Ga. 279 (1) (91 S. E. 52, L. R. A. 1917C, 481).

3. It is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, but this rule does not apply where the work for which the servant is employed is of such nature that its progress is constantly changing the conditions as regards the increase or diminution of safety. Where a servant is injured when engaged in a character of work to which the unsafe conditions are incidental, the master is not liable for failure to provide a safe place to work. The hazards thus arising are regarded as the ordinary dangers of the employment, and the servant assumes such risks. Louisville & Nashville R. Co. v. Dunn, 21 Ga. App. 379 (94 S. E. 661).

4. Where, under the allegations of a petition, there were several different but concurrent causes which together operated directly in bringing about the injury, the fact that one of the causes, without which the injury would not have been sustained, was a risk assumed by the servant’s employment, would not necessarily absolve the defendant from liability. Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713).

5. The grounds of negligence alleged in the petition are set out in the statement of facts- below. The first and second grounds were not sustained by the evidence of the plaintiff; the only evidence to sustain the second ground amounted to a ■ mere conclusion; and the, danger resulting' from the negligence charged in the third ground was an assumed risk incident to the performance of the particular task upon which plaintiff was engaged. The judge did not err in granting a nonsuit.

Judgment affirmed on main hill of exceptions; cross-hill dismissed.

Stephens and Smith, JJ., concur.

The plaintiff testified that “there was no other place where that machine could have been placed to hoist this timber, because the ties were so long; in swinging they were obliged to hit something; they were nine feet long; the foreman kept the leads out as far as he could get them.” He contended that the injury was caused ’by a bundle of cross-ties swinging against and knocking out a batton-post, and causing it to fall on him. He testified, however, as follows:' “ They all swing a little, just turning and spinning around on the cable,-—not swinging backward and forward much; and it was my business to steady them before they went up. So far as I -could see, this load went up like the balance. The last thing I remember was hooking them and turning loose. I don’t know whether I steadied it or not.” The only evidence offered by the plaintiff for the purpose of sustaining the second charge of negligence was as follows: “The drift-pins are 18 inches long, and an 18-inch drift-pin would have gone into a batton-post 6 inches, and if it had been driven in in that case the turning of this lumber could not have knocked it out;” and “if the drift-pin had been driven into the head of the battonpost, it could not have been dislocated and knocked down upon me by any jolt that might be caused from the hoisting of those ties. The usual length of the drift-pin is from 18 to 21 inches.” He further testified: “I helped tear down the trestle, and, as far as I could tell, it was properly built.” The plaintiff offered in evidence, as admissions by the defendant, the petition in a prior suit between the same parties, which had been dismissed, and which he contended was admissible because that suit was brought by a lawyer who had been hired by the defendant company to bring it in his behalf. After the plaintiff had introduced his evidence, the judge, on motion of the defendant, granted a nonsuit.

Lippiit & Burt, E. E. Cox, for plaintiff.

Peacock & Gardner, Pope & Bennet, for defendant.


text:
    11457.
    Carter v. Booth.
   Jenkins, P. J.

A general custom governing a trade or business, although it might be otherwise admissible to aid in expressing the true meaning and intent of a contract, cannot be proved for the purpose of depriving one of the contracting parties of an absolute right explicitly secured to him by the law of the State. Fleming v. King, 100 Ga. 449 (2) (28 S. E. 239). If, therefore, the provisions of § 3G88 of the Civil Code (1910) have reference to landlords and tenants -where the term of the tenancy extends for less than five years and the estate is created, then, under the rule just stated, no proof of mere custom would operate to give to the tenant the right to emblements thus specifically-denied; but since the statute referred to relates only to “estates” for" years, and since a tenant who holds for a term of less than five years is not positively' denied by any law of this State the right to gather matured crops from the rented premises after the term of his tenancy has expired, and since the evidence was uncontradicted that such right existed under a general and universal local custom, it became a question of fact for the jury to decide whether or not, under the circumstances of the ease, the tenant liad by his acts and conduct tacitly abandoned such right, or had forfeited it on account of having' failed to exercise it within a reasonable time.

Decided November 10, 1920.

Trover; from city court of Athens — Judge Greene. March 20, 1920.

By suit in trover Carter sought to recover certain cotton from Booth. According to the evidence the plaintiff rented certain land from Booth under a written instrument, dated March 10, 1917, reciting that it was “for this year.” Owing to bad weather and illness in his family he was unable to gather all his cotton crop before the expiration of the rental term. He moved from the land on Februarjr 4th or 5th, 1918, and a few days thereafter he told Booth that he desired to return and finish gathering the cotton, and Booth told him that as he had left the cotton on the place, it belonged to him (Booth); and Booth proceeded within a day or two to gather the cotton. A receipt was introduced, dated February 19, 1918, signed by Carter and reading as follows: “Beccived of G. M. Booth settlement in full for 1917 to date.” Carter testified that-this receipt did not include the cotton in controversy, and Booth testified that he did not know whether he had the cotton in mind at the time or not. It was testified that there was a general and universal custom in that locality to allow a tenant, after the expiration of his term of tenancy, to go back and finish gathering 1ns crop on the rented land where he had failed to do so during the tenancy. On motion of the defendant’s counsel the judge directed a verdict for the defendant; the plaintiff’s motion for a new trial was overruled, and he excepted.

Wolver M. Smith, Thomas J. Shackelford, for plaintiff.

H. C. Tuck, for defendant.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    11529.
    Tate v. Atlantic Ice & Coal Corporation.
   Jenkins, P. J.

1. The liability of a master for injuries proximately occasioned by the negligence of a servant is limited to acts of the servant done within the scope of his duties and employment.

2. Where a petition showed that the business of the defendant was the sale and distribution of ice from wagon or truck driven by tlie defendant’s servant, and that the injury to the plaintiff was occasioned by the act of the servant while thus engaged, in negligently starting off his wagon while tlie plaintiff was attempting to mount it after having been invited to ride by the servant, and where the petition nowhere charged, either in express terms or by reasonable inference from the facts stated, that the act of the servant in inviting or permitting the plaintiff to ride on the defendant’s track was within the scope of his duties and employment, it was not error to dismiss the suit on demurrer. Walker v. Southern Ice & Coal Co., 144 Ga. 690 (87 S. E. 888). Judgment affirmed.

Decided November 10, 1920.

Action for damages; from city court of Atlanta — Judge Keid. April 14, 1920.

T. G. Lewis, W. H. Terrell, for plaintiff.

McDaniel & Black, for defendant.

Stephens and Smith, JJ., concur.


text:
    11558.
    Francis v. Barnwell.
    Decided November 10, 1920.
    Complaint; from Fulton superior court — Judge Bell. April 28, 1920.
    The action was based upon parol promises, alleged to have been made to the mother by the father of an illegitimate child, to pay for the child’s support and education. The original petition was filed in 1919. As amended the petition alleges substantially: that in 1901 the plaintiff gave birth to a daughter as a result of cohabitation with the defendant while engaged to be married to him; that when she discovered that she was pregnant she immediately informed him of the fact, and he then told her that if she would carry the child to maturity and say nothing about his wronging her, he would furnish to her and the child a home and support; that he gave to her $50 just prior to the birth of the child, and aided her sparingly at intervals until July, 1918, paying very small sums and each time stating that he was .ternporarily out of cash, and giving other excuses for not properly caring for her and his daughter according to his promises, and stating each time that he would furnish the necessary cash to them within a few days, and ho continually renewed these promises until he married another woman; that he “repeatedly, every few months, from December, 1903, until he got married in 1919, renewed his promises to petitioner to pay all expenses incurred in rearing, maintaining, and educating said child,” and he now refuses to comply with the terms of his contract; that “ petitioner has complied strictly with all of the terms of the parol contract entered into between her and defendant, to wit, petitioner has reared, supported, maintained, and educated their daughter, . . and defendant has done very little towards complying with the terms of his contract;” that because of his said promises she expended $12,594 in rearing, maintaining, educating, and supporting the said child, this being $30 per month from the birth of the child in March, 1901, to June 30, 1919, the time of filing the suit; and that the various sums contributed by him for these purposes (an itemized statement of which is set out, with dates of payment, beginning in 1903 and continuing through each year until July, 1918) amounted only to $194, leaving the sum of $12,400 which the defendant is indebted to the plaintiff, and for which sum she prays judgment. It is alleged that on September 7, 1915, the defendant wrote to the plaintiff a letter enclosing a ' check, “ in which letter he fully recognized his liability on his oral agreement entered into with, [her] in 1901 and renewed each time he paid [her] the sums of money set forth in this petition.” A copy of the letter is set out. It is signed with the defendant’s name, states that a check for $8 is enclosed, mentions the child’s name, given in the petition, asks that her books be exchanged for new books, and says: "it will save that much and get those other things she wants; ” and tell her ■“ if she clonit get what she wants now I will try and get them sometime soon.”
   Smith, J.

The petition as amended set out a cause of action against the defendant, and was not subject to general demurrer, either on the ground that, the alleged contract being a parol contract, it was contrary to the statute of frauds and could not be enforced, or on the ground that the cause of action was barred by the statute of limitations.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

The defendant demurred to the petition as amended, on the grounds: (1) No cause of action is set forth. (2) The cause of action is barred by the statute of limitations. (3) The letter alleged to have been written on September 7, 1915, is not such a writing as constitutes a new promise which renews a right of action already barred by the statute of limitations; it does not identify the debt or.any debt, and does not show that it is connected with a debt growing out of a promise made by the defendant to the plaintiff. The court overruled the demurrer.

Reuben R. Arnold, E. C. Hill, for plaintiff in error,

cited: Goodrich v. Johnson, 66 Inch 258; Farrington v. Donohoe, Ir. Rep., 1 C. L. 675; 15 L. R. A. (N. S.) 320; Squire v. Whipple, 1 Vt. 69; Hill v. Hooper, 1 Gray, 131; Shute v. Dorr, 5 Wend. 204; Abbott v. Inskip, 29 Ohio, 59; Civil Code (1910), § 3223 (3); cases cited infra distinguished.

Hill & Adams, contra,

cited: Civil Code (1910), § 3027; Hargroves v. Freeman, 12 Ga. 342; Davis v. Moody, 15 Ga. 175; Hays v. McFarlan, 32 Ga. 699; Duncan v. Pope, 47 Ga. 445; Franklin v. Ford, 13 Ga. App. 469; 5 Cyc. 647; Id. 639; Civil Code (1910), § 3223; Stowers v. Hollis, 83 Ky. 544; McLees v. Hale, 10 Wend, 426; Knowlman v. Bluett, L. R., 9 Exch. 1; 43 L. J., Exch. 29; 29 L. T. R.; Flanegan v. Garrison, 28 Ga. 136 (2), 139.


author: Smith, J. Stephens, J.,

text:
    11563.
    Cheek v. Tripp.
   Smith, J.

1. Where a suit in trover was pending, and in the same court there was pending a suit of the same plaintiff against the same defendant for damages growing out of the breach of a contract to deliver certain lint cotton and cottonseed, these two suits could by agreement be tried together, but it would be necessary for separate verdicts to be rendered unless there was an order of the court consolidating the cases.

2. In this case, there being no order consolidating the two cases, it was error to charge the jury aS complained of in the 6th, 7th and 8th grounds of the motion for a new trial.

3. The court erred (as contended in the 4th ground of the motion for a new trial) in admitting in evidence a writing introduced by the plaintiff, to which the defendant’s name was signed and which was in these words: “ For value received I hereby sell to R. H. Tripp 500 pounds of good middling lint cotton and the seed from the lint, being thirty bushels, more or less, both seed and cotton to be delivered Oct. 15th, 1917, at Vienna, Ga.” Nowhere in the evidence does it appear that E. H. Tripp, the plaintiff, had title to the automobile for which this written contract was given; and therefore the evidence was irrelevant to the issues in the case. The undisputed evidence was that another party, Mr. Wells, owned the ear, which was the original subject-matter of the transaction in both cases, and that the plaintiff had only an interest in the car, and not the title to it.

Decided November 10, 1920.

Action for damages; from Dooly superior court — Judge Gower. May 3, 1920.

According to the testimony of the plaintiff, E. H. Tripp, he traded to Cheek an automobile for a certain mule and for 500 pounds of lint cotton and 30 bushels of cottonseed, taking from Cheek the paper described in paragraph 3 of the foregoing decision, and delivering the automobile to Cheek, who took it off with the mule, saying he wished to borrow the mule to take his wagon home, but would bring the mule back the next day. He did not bring the mule back, but brought the automobile back and said he was not going to take the car. The bill of exceptions describes this case as “an action for damages,” and the plaintiff’s petition in the transcript of the record is a suit for $168.75; damages for breach of an alleged contract “ shown by ” the writing mentioned above. The verdict was “in favor of plaintiff, $150.” The trial judge charged the jury: “Ih this case Mr. E. H. Tripp as plaintiff brings two suits growing out of an alleged contract with Mr. Cheek. One of these suits against Mr. Cheek is a trover suit, in which the plaintiff, Tripp, claims that the defendant, Cheek, was in possession of a certain mule of the value of $100, which the defendant refuses to deliver to the plaintiff. The other suit by Mr. Tripp is for injury and damage which he claims that the defendant inflicted'upon him by. a breach of contract, or that portion of a contract which, the plaintiff alleges and contends was made whereby the defendant was to deliver to the plaintiff 500 pounds of good middling lint cotton and 30 bushels of cottonseed, more or less, on the 15th day of October, 1917. By agreement of counsel these two cases have been consolidated, that is, they are to be tried together; the title to the mule, that is, the trover suit for the value of the mule rather, and the suit upon the alleged contract for the delivery of the cotton are all combined into one issue.” The court further charged: “If you embrace the theory of the plaintiff— think he should prevail in any amount, under the rules of law .which I have given you in charge, . . this being a case of trover and breach of contract consolidated, put whatever you find in a lump sum, ‘We, the jury, find in favor of the plaintiff ’ so many dollars and so many cents.” In grounds 6, 7, and 8 of the motion for a new trial the defendant complained of the instructions of the court as to consolidation of cases and as to the verdict, and contended that although the parties had agreed that the cases should be tried together, there was no legal consolidation, for there was no order of court consolidating the cases; and there being two separate and distinct cases, one verdict would not be sufficient.

Judgment reversed.

Jenkins, P. J., concurs.

Stephens, J.,

concurring specially. I concur in the rulings announced in paragraphs 1 and 2, but dissent from the ruling announced in paragraph 3. I concur in the judgment of reversal.

T. Hoyt Davis, Powell & Lumsden, for plaintiff in error.


author: Stephens, J. Smith, J., dissenting. Stephens, J.

text:
    11579.
    Horine v. Hicks.
    Decided November 10, 1920.
    Action on contract; from city court of Atlanta-—-Judge Reid. March 20, 1920.
    The action was by Mrs. Louise de Give Iiorine against Mrs. M. P. Hicks, for damages on account of the alleged breach of a contract of the defendant to purchase from the plaintiff certain land known as the “Lee Worsham place” and further described in the language quoted in the foregoing decision. A demurrer to the petition, was sustained on “ all the grounds thereof ” except two, and the petition was dismissed by the court. In the grounds sustained it was contended: that no cause of action was set forth; that it does not appear from the petition that a valid or binding contract of purchase and sale was entered into; that the contract set forth in the petition was too vague, uncertain, and indefinite to be the basis of a recovery of damages; that the description of the property in the alleged contract was too uncertain; that the damages sued for were too remote and speculative; and that the expense of $60, alleged to have been incurred by the plaintiff for examination of title to property on West North Avenue, Atlanta, which under the contract the defendant was to convey to the plaintiff as part consideration, was not recoverable. The petition (omitting paragraphs eliminated by the court on special demurrer) alleges: The defendant has injured and damaged the plaintiff in the sum of $3,560, by reason of the following facts: On August 9, 1919, the plaintiff, through her duly authorized agents, Logan and Scott, entered into a written contract with the defendant by which the plaintiff agreed to sell to the defendant and the defendant agreed to purchase a certain tract of land, to which a good fee-simple title was vested in the plaintiff. • The petition then gives the description of the land quoted in the foregoing decision and states the terms of sale, as contained in 'a copy of the contract, attached to the petition, and alleges that at the time of the signing of the contract the defendant paid $5 on the purchase-price. It is alleged: that in pursuance of the contract the plaintiff, at an expense of $60 as fee for examination of title, procured the Atlanta Title Guarantee Company to examine the defendant’s title to the property on West North Avenue, described in the contract, and received from that company a report dated August 12, 1919, which showed that the title to that property was good in the defendant, subject to liens of about $3,000, and which satisfied the plaintiff as to the defendant’s title, and the plaintiff at once reported to the defendant her willingness to proceed with the trade. The defendant thereupon finally and absolutely refused to comply with the terms of her said contract to purchase from the plaintiff the Lee Worsham place on -the terms agreed upon between them, and in so refusing made no objection as to the sufficiency of the plaintiff’s title to the property. “Defendant [plaintiff?] caused notes to be prepared in her favor and all other papers to be prepared necessary to carry out said trade as set forth in said agreement of sale, and presented them in person to said defendant and demanded that she sign the same as she had agreed to do, offering at 'the same time to fully comply on her part with her agreements as set forth in said contract; and plaintiff alleges that defendant refused to sign said notes and to convey said West North Avenue property to plaintiff and to accept bond for title to said Lee Worsham property from plaintiff as agreed.’ ’ The fair market value of the said Lee Worsham place at the date of the breach of the said contract was not more than $14,000, and the amount of damage incurred by the plaintiff by reason of the breach of contract is the difference between that sum and $17,500, the amount agreed to be paid to the plaintiff for the Lee 'Worsham place, to wit, $3,500, and the sum of $60, expense incurred in examination of the defendant’s title to the property on West North Avenue as aforesaid. The plaintiff has demanded of the defendant payment of said $3,500 damages, and the defendant refuses and neglects to pay the same.
   Stephens, J.

1. In a contract for the sale of land, the following description is sufficiently certain for identification: “ A certain tract or parcel of land lying in Fulton County, Ga., fronting 150 feet on Wesley Ave., 1763 feet, more or less, on what is known as the extension of Hemphill Ave. (being a new road between said tract and the property of Clark Howell), and 300 feet on Peachtree Battle Ave., containing 11.78 acres, and being in land lot 155 of the 17th district of said county, upon which there are situated a two-story house, barn and garage, a two-room servant’s house, and other improvements, known as the Lee Worsham place.’ ” That is certain which is capable of being made certain.

2. In a suit for damages for breach of such a contract the petition is not subject to special demurrer upon the ground that the description of the property in the contract is too vague and indefinite.

3. The petition otherwise setting out a cause of action, it was improperly dismissed on general demurrer.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.

The contract attached to the petition was as follows:

“$5.00. Atlanta, Ga., August 9th, 1919.

“ Eeceived of Mrs.. M. P. Hicks five & no/100 dollars as part payment on a certain tract or parcel of land,” described as in the foregoing decision, “said property having this day been sold to the above-named purchaser by Logan & Scott, agents for and on account of the owner, subject to examination of title, for the sum or consideration of seventeen thousand five hundred ($17,-500.00) dollars, on the following terms,” stating the terms, which include a cash payment of $6,000, “to consist of the conveyance of” a described house and lot at No. 78 West North Avenue, Atlanta, the grantee’s assumption of loans against the property, not exceeding $3,000, and notes for the remainder, payable in stated amounts at stated times. “Each piece of,property above is sold subject to examination and approval of title.

(Signed) “Jas. L. Logan and Henry B.-Scott,

“ Agents for Owner.

“I hereby agree to purchase the above-described property for the price and on the terms stipulated above, provided the title is good. If a marketable title can not be made within a reasonable time, the amount of this receipt shall be refunded.

(Signed) “Mrs. M. P. Hicks, Purchaser.

“The undersigned hereby assents to the foregoing agreement, and 'agrees to pay Logan & Scott the regular real estate commission for services rendered in making the above sale, only when said transaction is fully consummated and when warranty deed to No. 78 West North Avenue and the said notes [described] have been duly executed and delivered to me, provided title to said property is approved by Atlanta Title Guarantee Co.

(Signed) “Louise de Give Horine, Owner.”

J. A. Noyes, for plaintiff,

cited: As to description: Walden v. Walden, 128 Ga. 126; Moody v. Vondereau, 131 Ga. 522; Ray v. Pease, 95 Ga. 153; King v. Brice, 145 Ga. 65; Andrews v. Murphy, 12 Ga. 431; Manning V. Mallard, 144 Ga. 9; Harriss v. Howard, 126 Ga. 325; McAfee V. Arline, 83 Ga. 645; Shackelford v. Orris, 129 Ga. 791; Brice v. Sheffield, 118 Ga. 128; Pearson v. Horne, 139 Ga. 453; Bush v. Black, 142 Ga. 157; Horton v. Murden, 117 Ga. 72; Summerlin v. Hesterly, 20 Ga. 689; Irby v. Gardner, 56 Ga. 643; Huntress v. Portwood, 116 Ga. 351 (distinguished). As to damages: Cowdery v. Greenlea, 126 Ga. 786 (3); King v. Brice, 145 Ga. 65 (3), 69; Brooks v. Miller, 103 Ga. 713; Irwin v. Askew, 74 Ga. 582; Sutton v. So. Ry Co., 101 Ga. 776; Sappington v. Atlanta & West Point R. Co., 127 Ga. 178 (3).

Norman I. Miller, for defendant,

cited: Civil Code (1910), § 4106; Tippins v. Phillips, 123 Ga. 417; Gatins v. Angier, 104 Ga. 386; Richardson v. Perrin, 133 Ga. 721; Mims V. Gillis, 19 Ga. App. 57; Estes V. Winn, 136 Ga. 344; Clayton V. Newberry, 138 Ga. 735; Barnes v. Cowan, 147 Ga. 478; Huntress v. Portwood, 116 Ga. 351; Atlanta & LaGrange R. Co. v. Hodnett, 29 Ga. 461 (2); Pope v. Graniteville Mfg. Co., 1 Ga. App. 185; Jester v. Bainbridge State Bank, 4 Ga. App. 469 (4). Cases cited for plaintiff, supra, distinguished.

Smith, J., dissenting.

“In order to recover damages in lieu of a specific performance, when the latter cannot be had because the party has put it beyond his power by his conduct, it is essential that a case for specific performance should be made out.” Prater v. Sears, 77 Ga. 28 (2). “The statute of frauds requires all contracts for the sale of land or any interest therein to be in writing, signed by the party to be charged therewith or some person by him lawfully authorized. Civil Code [1895], § 2693, par. 4. Every essential element of the sale must be expressed in the writing, to meet the statutory requirement. One of the essentials is that the land must be so described that it is capable of identification. While it is not necessary that the land be described with such precision, that its location and identity are apparent from the description alone, yet the description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed.” Tippins v. Phillips, 123 Ga. 415, 417 (51 S. E. 410). The contract in question in this case is too vague and indefinite in the description of the land to be the basis' of a suit for damages for non-performance. No definite starting point is furnished by the terms of the contract. No surveyor could tell whether the fourth line was straight or crooked. The description does not say on what side of Wesley Avenue the land lies, nor in what direction Wesley Avenue runs. Neither does it sajr on which side of the extension of Hemphill Avenue the 1763 feet lie. The. description is in other respects very vague and indefinite. See, in this connection, Neltles v. Glover Realty Co., 141 Ga. 126 (80 S. E. 630); Tippins v. Phillips, supra; Gatins v. Angier, 104 Ga. 386 (30 S. E. 876); Mims v. Gillis, 19 Ga. App. 53, 57 (90 S. E. 1035). The court therefore, in my opinion, did not err in sustaining the general demurrer 'and dismissing the case.

ON APPLICATION TO ALLOW MOTION POR REHEARING.

Stephens, J.

1. Where the remittitur has been regularly transmitted from this court to the trial court and before it has been filed in the trial court and the judgment of this court made the judgment of that court, the remittitur will not be recalled by this court at the instance of the losing party, for the purpose of allowing the filing of a motion for a rehearing, when it does not appear that the judgment of this court is wrong and has been inadvertently rendered. Seaboard Air-Line Railway v. Jones, 119 Ga. 907 (91 S. E. 115). See, in this connection, Hawk v. Western & Atlantic Railroad Co., 146 Ga. 373 (91 S. E. 414).

2. The application of the defendant in error to recall the remittitur and be allowed to file a motion for a rehearing is therefore denied.

Application denied.

Jenkins, P. J., and Hill, J., concur.