text:
    8996.
    CITY COUNCIL OF AUGUSTA v. CLEVELAND.
    1. While ordinarily a municipality is not liable for injuries caused by negligence of employees of its board of health when engaged in work connected with the preservation of the public health, an exception to this rule occurs where there is negligence on the part of such employees, who are paid directly by the city and not by the board of health, in cleaning out a part of a sewer and leaving a heavy iron lid to an opening in the sewer in such a position upon a sidewalk as to create a dangerous defect or obstruction in the sidewalk, in consequence of which one not chargeable with negligence is injured.
    Decided April 4, 1919.
    2. There is no reversible error in any of the excerpts from the charge of the court, as complained of in the special grounds of the motion for a new trial, when considered in the light of the charge as a whole.
    3. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.
    Action for-damages; from city court of Richmond county—Judge Black. June 9, 1917.

      Isaac S. Peebles Jr., for plaintiff in error.

      Alexander & Lee, contra.
   Broyles, P. J.

The first headnote alone needs elaboration The ruling therein stated is in accord with the decision of the Supreme Court in this case, rendered February 13, 1919, in answer to questions certified by this court. 148 Ga. 734 (98 S. E. 345). That decision follows:

"1. The duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function.

. “2. Such maintenance of a sewerage system has reference to the preservation of the public health.

“3. This court will take judicial notice of that fact.

“4. This court will also take judicial cognizance of the fact that the cleaning out of an essential part of a city’s sewerage-drainage system for the purpose of keeping it open and unclogged by dirt, sand, or .other foreign substances, so that it 'can properly perform its functions as a part of the system, is a necessary work in a proper maintenance of the system, and is a work connected with the preservation of the public health.

"5. Negligence on the part of employees of the board of health of a city, who were paid by the city, in cleaning out a part of the sewer and leaving a heavy iron lid to an opening into the sewer in such a position as to create a dangerous defect or obstruction in the sidewalk, in consequence of which one not chargeable with negligence was injured, would render the city liable to the injured party.”

“The Court of Appeals has certified the following questions upon which it desires instruction:

Is the duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition, so as to prevent it from becoming or causing a nuisance, a governmental or a ministerial function?

‘(a) Is such maintenance connected with or has it reference to the preservation of the public health?

‘(b) Is the fact that such maintenance is connected with or has reference to the preservation of the public health so well known that this court can take judicial cognizance of it?

‘(c) Can this court take judicial cognizance of the well-known fact that the cleaning out of a ‘sand-trap’—an essential part of a city’s sewerage-drainage system—for the purpose of keeping it open and unclogged by dirt, sand, or other foreign substances, so that jt can properly perform its functions as a part of the system, is a necessary work in the proper maintenance of the system, and is a work connected with the preservation of the public health?

A “sand-trap” forming a part of the sewerage-drainage system of the City of Augusta was being cleaned out by the employees of the board of health of the city by removing therefrom sand and dirt. The powers and duties of the board of health and its employees, and their relations to_ the city, are fixed by the act of the General Assembly of Gedrgia creating the board (Acts 1880-1, p. 365). While the men cleaning out this sand-trap were employees of the board of health of the City of Augusta, it is inferable from the evidence that they were paid by the City of Apgusta. The sand-trap was on the edge of a sidewalk near the curbing,' and the employees of the board of health, for the purpose of cleaning out the sand-trap, removed its iron lid (which was about 3 1/2 or 4 feet square and weighed 200 or 250 pounds, and which, when the trap was closed, formed, a part of the surface of the sidewalk used by pedestrains), and propped the lid up at an angle on the edge of the sidewalk by means of a steel bar some 2 1/2 or 3 feet long, while they were engaged in cleaning out the trap. While this work was being done, a boy 7 years old, who was upon the sidewalk, walked up to the trap to see what was going on, and accidentally struck with his foot the steel bar Which supported the lid, -thereby knocking the prop 'down and causing the lid to fall upon, and break his leg. Under these circumstances, was the city in the performance of a governmental or a ministerial function; and was it liable for the negligence of the employees of the board of health (if they were negligent under the facts' of the case) in improperly and insecurely propping up the lid, and in ■ failing to warn the boy of his danger when approaching it?

We are of the opinion that the duty of a city to main-’ tain its sewerage-drainage system in a good working and sanitary condition is a governmental function. That such maintenance is connected with and has reference to tbe preservation of the public health, is so well known and so generally recognized that courts will take judicial cognizance thereof. It is unnecessary to cite authorities, either decisions of courts or text-books, to show what facts or classes of facts courts will take judicial notice of, in order to demonstrate that judicial notice will be taken of the fact that the- sewerage system has a direct connection with and relation to the health of the inhabitants of the municipality. We will, however, call attention to the case of Townsend v. Smith, 144 Ga. 793 (87 S. E. 1039),.in which it appears that this court.took judicial cognizance of the fact that The prevention of an infectious malady which, unless checked, would become general among the cattle of a given county and thereby render the flesh of such cattle and milk of cows diseased, unwholsome, and unfit for food, was a matter affecting-the health of the people of the community where this disease appeared/ The removal of garbage of all kinds, the prevention of the escape of noxious vapors and odors, the cleanliness of the persons residing in a city, are all to a large extent dependent upon the maintenance of a sewerage-drainage system. It follows from what is here said, under the authority of several of our decisions, that the maintenance of the sewerage and drainage system of a city in a good working and sanitary condition is a governmental function. This conclusion is in accordance with what was said in the case of Love v. Atlanta, 95 Ga. 139 (33 S. E. 39, 51 Am. St. R. 64), and the other cases decided by this court. Watson v. Atlanta, 136 Ga. 370 (71 S. E. 664). See also 6 Mc-Quillin, Mun. Corp. § 3669. In answering the question in regard to the sewers and drainage system of a city, we have assumed that the system referred to is not one- operated for profit, and that no substantial charges are made for the ordinary use, enjoyment, and benefits of the system.

“4. It will be seen from what we have said above that an affirmative answer should be given to subdivision (c) of the first question, in the form in which that question is submitted. If the question had been propounded as to whether a court would take judicial cognizance of what a sand-trap is, a different question would have been presented. But where the sand-trap is defined as an essential part of the sewerage system, then it follows from what we have previously stated that the keeping of it open and unclogged by' dirt, sand, or other foreign substance, so that it could properly perform its functions as a part of the system, is a necessary part of the proper maintenance of the system, and has, therefore, a natural connection with the preservation of the public health.

. “5. While it is one of the governmental functions and duties of a city to effectively maintain its sewerage system, and while, under the authority of the decision in Love v. Atlanta, supra, and the cases laying down the same doctrine as there stated, it follows that if, in the exercise of such functions and the discharge of the duties devolving upon the department of the city government having charge of the matters relating to the public health, a private citizen is injured by the negligence of one of the city’s servants in and about such work, no right of action arises against the city, nevertheless that doctrine must not be allowed to destroy the other equally well-established doctrine, that if a city negligently and tortiously allows obstructions to remain in its streets or sidewalks, or negligently fails to repair defects in a sidewalk or street, and a citizen in the exercise of due care is injured in consequence of such act of negligence upon the part of the city, there can be a recovery therefor against the city. Each of these two doctrines must be given effect, and has been given effect. In the ease of Mayor etc. of Savannah v. Waldner 49 Ga. 316, it was said: ‘It is the duty of a municipal corporation, vested by law with authority over the streets, whilst dangerous works, such as sewers, etc., are being constructed across a street, to have proper precautionary measures taken to prevent accidents to passengers dinning such construction, whether the same is being done by the corporation through its own servants, or by contract, or by subcontractors under a primary contractor.’ The defect in the street which was charged to be negligent and tortious conduct in the ease just cited consisted in leaving open ‘a ditch or sewer across the street See also Mayor etc. of Savannah v. Spears, 66 Ga. 304. In the case of Kea v. Dublin, 145 Ga. 511 (89 S. E. 484), it was said: ‘Although municipal authorities may have plenary power in the matter of collection, removal, and disposition of garbage, yet they can not lawfully create, in connection therewith, a nuisance dangerous to health or life; and where such a nuisance is created and its effect is specially injurious to an individual by reason of its proximity to his home, he has a cause of action for damages. Bell v. Mayor etc. of Savannah, 139 Ga. 298 (77 S. E. 165) See also Mayor etc. of Savannah v. Houk, 113 Ga. 963 (39 S. E. 577) ; Williams v. Washington, 142 Ga. 281 (82 S. E. 656, L. R. A. 1915A, 325 Ann. Cas. 1915B, 196); Langley v. Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. E. 133) Mayor etc. of Americus v. Chapman, 94 Ga. 711 (20 S. E. 3); Cornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415). Consequently the last question propounded by the Court of Appeals should be answered in the affirmative.”

The evidence in this case authorized a finding that the employees of the board of health of the City of Augusta were paid directly by the city, and not by the board of health, and that they were negligent in propping up, on the sidewalk, a heavy' iron lid of a sand-trap of a sewer, in such a way" that it fell upon the sidewalk when the prop was accidentally struck by the foot of a child, and that they thereby created a dangerous obstruction upon the sidewalk, in consequence of which the injuries sued for were sustained; and that the plaintiff, a boy 7 years old, had exercised the “due-care” required of a child of such tender years under the circumstances.

Under ■ these 'facts and the foregoing decision of the Supreme Court, the City of Augusta was liable in damages to the plaintiff for the injuries sued for.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9472, 9445.
    VOLUNTEER STATE LIFE INSURANCE CO. v. SPRATLING; and vice versa.

    Decided April 4, 1919.
    Under the terms of the life-insurance policy sued on, the loan value available for automatic payment of premium which the insured had failed to pay was riot sufficient to “carry the policy in force, in the form as written,” to the date of his death.
    The insurance company was not estopped from declaring a forfeiture of the policy, it appearing that the sum necessary to pay the past-chje premium was not paid or tendered until after the death of. the insured.
    The court did not err in sustaining the general demurrer to the second . count of the petition, but erred in overruling the general demurrer to the first count, and in refusing to dismiss the petition.
    Action on insurance policy; from Fulton superior court—Judge Bell. 'November 29, 1917. •
    The questions certified by the Court of Appeals to the Supreme Court in this case were:
    1. Under the facts as stated in the first count of the petition, and under the provisions of the policy of insurance sued upon, was the available loan value on the policy sufficient to keep the policy in full force and effect to a period beyond the death of the insured ?
    2. Under the facts as stated in the second count of the petition, together with the exhibits, and the provisions of the policy of insurance sued upon, is the defendant estopped from declaring a forfeiture of the policy?

      Little, Powell, Smith & Goldstein, W. B. Miller, for the insurance company, cited:

      State Mutual Life Ins. Co. v. Forrest, 19 Ga. App. 296; Perkins v. Empire Life Ins. Co., 17 Ga. App. 658.

      Jones & Chambers, Samuel Barnett, contra, cited:

      Arnold v. Empire Life Ins. Co., 3 Ga. App. 685; 25 Cyc. 739, and cases cited supra; (estoppel) American Ins. Co. v. McVickers, 135 Ga. 118; McDaniel v. Ins. Co., 134 Ga. 189; Wilkins v. Gibson, 113 Ga. 50; Rives v. Lamar, 94 Ga. 190; Covenant Mut. L. Ins. Co. v. Kentner, 188 Ill. 431; Shaw v. Republic Life Ins. Co., 69 N. Y. 286.
   Broyles, P. J.

In answer to questions certified by this court, the Supreme Court, on November 16, 1918, rendered the following opinion (the decision was held up, however, by a motion for a rehearing, until February 24, 1919, when the motion was denied by the Supreme Court) :

“A limited payment (20-pay) life-ÍD sur anee policy was issued on May 25, 1913. The insured paid the first premium on the date of issue, the second premium on May 25, 1914, and the third on May 25, 1915. The premium due on May 25, 1916, was not paid. The insured died on August 25, 1916. The insured had borrowed on the policy $337.11, and the interest on the amount had been paid up to May 25, 1916. The premium, as stated in the face of the policy, was $316.89, payable annually. The policy provided: ‘The company will, at any time after three full years’ premiums have been paid, advance upon the sole security of this policy, when legally assigned, a sum equal to the amount specified in the table below, less any indebtedness to the company on account of this policy. The interest on such loan shall not exceed six per cent, per annum, and shall be payable annually in advance.’ The loan or surrender value of the policy, as stated in the table referred to, was $396 after the policy had been in force three years; $621 after four years. The policy further provided: - ‘In the event the insured should, at any premium date or. within the- days of grace thereafter, after three full years’ premiums have been paid hereon, fail to pay or cause to be paid the then current premium, if the policy be not surrendered by the insured with a choice of one of the options herein guaranteed, and if at the time of the., non-payment of premium there is a loan value hereon in excess of all indebtedness that may then exist against the policy together with interest, the company will apply such available loan value towards the payment of the premium then, due, with interest thereon at a rate not exceeding six per cent. (6.%) per annum, chargeable annually in advance; and will continue to carry said policy in force, in the form as written and at the rate of premium as provided for in the face hereof, subject to its terms and such indebtedness, the same as if the premium had been paid in cash; and will continue to so apply such loan value as long as such value, at the rate of premium provided in the face hereof, will suffice to pay for even one day’s premium. At any time while this policy is thus in force the insured may resume payment of premiums thereon without medical re-examinatjon, and in that event any indebtedness against the policy may either be paid in cash or allowed to remain as a loan hereon. All such indebtedness shall be a first lien on the policy, and the policy will lapse unless premium payments are resumed by the insured within the actual period of extension.’ The non-forfeiture provisions of the policy, other than the automatic premium-loan clauselast above quoted, gave to the insured the option to surrender the policy to the company, after the policy had been in force three full years, and at any time prior to default in premium payment, or within the days of grace (one month) thereafter, and to take (1) the cash surrender value, as indicated by the table set out in the policy, less any-indebtedness to the company on account of the.policy; or (2) a non-participating paid-up life policy for a reduced amount, as indicated*by the table; or (3) a non-participating paid-up term policy for the full amount insured by the policy, as indicated by the table, with a provision in (2) and (3) as to any indebtedness to the company on account of the policy. The insured did not surrender thé 'policy, and did not elect to take any of the options last above referred to.

“On June 26, 1916, the fourth annual premium having become due on May 25, 1916, the company offered to loan to the insured the full amount available after the policy had been in force four years, to wit, $621, at the same time tendering the insured a loan agreement to be executed by himself and hib wife, the latter being the beneficiary named in the policy. Along with the loan agreement the company furnished to the insured a statement of his indebtedness to it, showing: former loan, $337.11; premium due on May 25, 1916, $316.89, and interest to May 25, T917, $37.26, making a total of $691.26; and required the insured to pay the additional sum of $70.26 to cover the total of his indebtedness to the company. On June 27, 1916, the insured signed the agreement and forwarded it from Macofi, Ga., to -the beneficiary at Atlanta, Ga., with the request that she also execute the agreement and deliver it to the company together with the sum of $70.26. At the time of the receipt of the agreement by the beneficiary she was fill and bed-ridden 'and remained in this condition for several days, at which time she became wholly unconscious and remained in this condition until after the death of the insured; and for said reasons was unable to execute said loan agreement prior to the death of the insured.’ The insured died without knowing that the beneficiary had not complied with the ‘wrongful’ demands of the company. After the death of the insured the beneficiary completed the agreement and tendered it together with $70.26 to the company. One clause of the policy provided: ‘This policy is issued with the express understanding that the insured may, without the consent of the beneficiary, receive every benefit, exercise every right, and enjoy every privilege conferred upon him by the policy.’ Held:

“1. Under the foregoing facts, the available loan value on the policy, to wit, $58.89 (conceding, without deciding, that interest at six per cent, per annum in advance on the existing loan and on the amount appropriated to the payment of the premium due should not be first deducted), was, under the automatic premium-loan clause quoted above, insufficient to ‘carry the policy in force, in the form as written,’ to the date of the insured’s death, August 35, 1916. *

“ (a) The obligation of the company, under the automatic premium-loan clause quoted above, was to apply such available .loan value toward the payment of the premium due, and to carry the policy in force ‘in the form as written and at the rate of premium as provided for in the face’ of the policy. In a strict technical sense no ‘rate of premium’ is provided in the-face of the policy. The' reference is, however, to the contract as written, and the words quoted above are to be given their usual and ordinary signification. The parties were dealing with this contract of insurance,' to wit, a limited-payment life policy as distinguished from a purely protective policy or other form of contract.

“3. The insurance company was not estopped from declaring a forfeiture of the policy (conceding, without deciding, that its demand that the loan agreement be executed by the • beneficiary was wrongful and unauthorized), it affirmatively appearing that the sum of money necessary to pay the past-due premium, interest in advance upon thé loan, and the existing loan upon the policy was neither paid nor tendered to the company until after the death of the insured.” 148 Ga. 687 (98 S. E. 464).

Under the foregoing decision, neither count of the petition set forth a cause of action; and the court properly sustained the general demurrer to the second count of the petitioü-, but erred in overruling the general demurrer to the first count thereof, and in refusing to dismiss the entire petition.

Judgment on the main hill of exceptions reversed; on the cross-hill affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    9726.
    Strickland v. Hamilton.
    Decided April 4, 1919.
    Petition for certiorari; from Camden superior court—Judge Highsmith. Marcli 20, 1918.

      D. S. Atkinson, for plaintiff in error. II. Roy Lang, contra.
   Broyles, P. J.

1. “The writ of certiorari will not lie to correct errors committed by a justice of the peace in proceedings under the Penal Code [1910], §§ 1331 et seq., against the putative father of a bastard child, where judgment is rendered requiring the defendant to give security for the support of the child, and binding him over to the superior court upon his failure to give such security. Such is the ruling in the ease of Hyden v. State, 40 Ga. 476; and upon the formal review of that decision” the Supreme Court “declines to overrule it.” Strickland v. Hamilton, 148 Ga. 820 (98 S. E. 471).

2. The foregoing ruling was made by the Supreme Court upon a question certified by this court in this case; and it follows therefrom that the judge of the superior court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Broyles, P. J,

text:
    10254.
    EVITT v. THE STATE.
    Decided April 4, 1919.
    1. An indictment charging that the defendant unlawfully sold “adulterated food,” in that he sold to a named person, “a portion of an animal, to wit, a cow,-'Unfit for food, not manufactured, and said portion of said cow being the product of a diseased cow, and being that of a cow that had' died otherwise than by slaughter,” was not subject to demurrer because of failure to show compliance with statutory provisions as to examination of food by or under the direction of the State chemist, notice to the defendant, determination by the commissioner of agriculture that the provisions of the pure-food law had been violated, etc. (Civil Code of 1910, § 2102). Nor -was it subject to demurrer because of failure to show how of in what way the portion sold was unfit for food, or was diseased, or what kind of product of the diseased cow was sold. Nor was it ground for abatement of the prosecution that the statutory provisions referred to above were not complied with.
    2. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Indictment for misdemeanor; from Wilcox superior court— Judge Crum. December 7, 1918.

      Hal Lawson, for plaintiff in error.

      J. B. Wall, solicitor general, Max E. Land, contra.
   Broyles, P. J,

The indictment under which the defendant was tried charged that on the 11th day of May, 1918, in the county of Wilcox, he “did then and there, unlawfully and with force and arms, sell adulterated food; in that the said Evitt sold to S. Á. Brown a portion of an animal, to wit, a cow, unfit for food, not manufactured, and said portion of said cow being the product of a diseased cow, and being that of a cow that had died otherwise than by slaughter; contrary to the laws of this State, the good order, peace, and dignity thereof.” The defendant interposed the following demurrer: “(1) The facts as set forth in said indictment constitute no offense against the criminal laws of the State of Georgia. (2) The said indictment fails to allege that the food, for the sale of which this indictment was preferred, was ever examined by the State chemist, or under his direction, for the purpose of determining whether said food was adulterated within the meaning of the law, nor does- it allege that any notice of the intention to have such examination was ever given the defendant, nor does it allege that as a result of such examination as aforesaid the commissioner of agriculture certified the case to the solicitor-general of this court, after having determined that the provisions of the law touching the adulteration of foods had been violated by this defendant. (3) Defendant demurs to so much of the said indictment as alleges that the portion of an animal, to wit, a cow, which defendant was indicted for selling, was unfit for food, because it fails to show how or in what way the said portion was unfit for food. (4) Defendant demurs to so much of said indictment as alleges, 'said portion of said cow being the product of a diseased cow/ because said indictment fails to show what kind of product of said diseased cow defendant is indicted for selling, and further fails to allege -how the said cow was diseased, and with -what disease she was afflicted.”

The defendant filed also the following plea in abatement: “The food which is claimed in the said indictment to have been adulterated was not examined by the State chemist, or under his direction and supervision, for the purpose of determining from such exam-, ination whether such food was adulterated; and no notice was ever given this defendant and no opportunity to be heard was ever given him so that he could be present at any such examination; nor did the commissioner'of agriculture ever determine, ascertain, or declare that any of the provisions of the pure-food laws of Georgia had been violated by this defendant; nor did the said commissioner of agriculture of Georgia certify the facts and the case to the solicitor-general of the Cordele judicial circuit. Of all this the defendant puts himself upon the county, and prays that said indictment do abate.” It was contended that under the provisons of the Civil Code (Í910),- § 2102, the examination, determination, etc., referred to'in this plea, were necessary before prosecution.

In our judgment the indictment (which charged the offense substantially in the language of the statute) was not subject to any ground of the demurrer; and the facts stated in the plea in abatement were insufficient in law to require abatement of the prosecution. See Penal Code (1910), § 451; Civil Code (1910), §§ 2101, 2103, par. 7; Penal Code, § 954.

The refusal to give.the requested instruction to the jury was not error. The verdict was authorized by the evidence, and has been approved by the trial judge; and, as no error of law appears, this court is without authority to interfere.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10308
    James v. The State.
    Decided April 4, 1919.
   Broyles, P. J.

1. It being shown upon the hearing of the defendant’s motion for a continuance, based upon the absence of a material witness for the defense, that the witness was beyond the jurisdiction of the court (in the United States army in France), and had not been subpoenaed, the court did not err in overruling the motion. Penal Code (1910), § 987; Boyd v. State, 17 Ga. App. 162 (86 S. E. 411); Minder v. State, 113 Ga. 772 (39 S. E. 284). This is true although the defendant stated that he expected to have the witness at the next term of the court, it not being shown that the witness had promised to attend or that there was any other ground for this expectation. Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814) ; Owens v. State, 110 Ga. 292 (34 S. E: 1015).

2. The fact that one of the jurors had been a member of the grand jury that found the bill against the defendant is not cause for a new trial. The defendant and his counsel, by due diligence, could have discovered this fact before the jury was empanelled. Britt; v. State, 112 Ga. 583 (37 S. E. 886).

3. The evidence amply authorized the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

Indictment for violation of liquor law; from Houston superior court—Judge Mathews. December 6, 1918.

R. N. Holtzclaw, for plaintiff in error.

John P. Ross, solicitor-general, contra.


author: Broyles, P. J. Stephens, J.

text:
    10337.
    Carson v. The State.
    Decided April 4, 1919.
    Indictment for assault with intent to murder; from Butts superior court—Judge Searcy. January 11, 1919.
    Squire Carson was convicted under an indictment which charged that he shot at J. E. McNair and O. E. Maddox with intent to murder them.
    The grounds of the motion for a new trial referred to in paragraph 1 of the dicision are as follows:
    “Fourth: Movant contends that the court erred in admitting the following testimony in the case for the consideration of the jury: W. H. Barnes, a witness for the State, testified as follows: ‘On the night that Squire Carson had trouble with Mr. McNair and Mr. Maddox, I heard the shooting. After the shooting I heard some talk. I was at the city barracks. I am night-watchman for the Farmers’ Union Warehouse.’ The solicitor-general asked the following question: ‘What did you hear him' say?’ The defendant objected to the answer, on the ground that it was after the shooting and not a part of the res gestse and he was under arrest at the time; it was 25 minutes after the trouble. The court overruled the objection; to which ruling the defendant then and there excepted and here and now excepts and assigns the same as error. The witness answered as follows: ‘When we went to take him out of the wagon McNair went around the wagon and said, “We will take him to the station-house.” ’
   Broyles, P. J.

1. The first and second special grounds of the motion for a new trial (grounds 4 and 5) being so incomplete within themselves as to require a reference to each other and to the brief of the evidence, to ascertain the errors complained of and their materiality, under repeated rulings of the Supreme Court and of this court these grounds can not be considered.

2. Under the facts of the case the court did not>err in charging the jury upon the law of assault with intent to murder.

3. The ground of the motion for a new trial which complains of the admission of certain documentary evidence can not be considered, as the evidence is not set forth in the ground, either literally or in substance, or attached thereto as an exhibit. Gaskins v. State, 17 Ga. App. 807 (2) (88 S. E. 592).

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

Judgment affirmed.

Bloodwo'rth J., concurs. Stephens, J., concurs specially.

“Fifth: The witness W. H. Barnes testified as follows, over the objections of defendant’s counsel: ‘He said, “Get away from here, you damned son of a bitch, or I will kick you in the face.’” Movant moves to rule out the above testimony, for the reason that it was irrelevant ánd illustrates no issue in this ease, and is offered in evidence only to prejudice the minds of "the'jury, and is not a part of the res gestas; which objection and [motion] to rulé out said testimony was overruled by the court; to which ruling the defendant then and there excepted and here and now excepts and assigns 'the same as error.”

O. M. Buhe, for plaintiff in error.

E. M. Owen, solicitor-general, contra.

Stephens, J.

I concur in all but the ruling announced in the .first paragraph of the decision. I am of the opinion that the first and second special grounds of the motion for a new trial'are complete within themselves, but possess no merit. I therefore concur in the judgment of affirmance.


author: Bloodworth, J.

text:
    8398.
    Southern Railway Co. v. Hodgson Brothers Co.
    Decided April 12, 1919.
    Garnishment; from city court of Athens—Judge West. December 18, 1916.

      Blanton Fortson, for plaintiff in error.

      Wolver M. Smith, Erwin, Rucher & Erwin, contra.
   Bloodworth, J.

The case having been carried by writ of certiorari from this court to the Supreme Court of Georgia, and that court having reversed the decision originally rendered by this court (148 Ga. 851, 98 S. E. 541); and the rulings of the Supreme Court being controlling on all the issues involved, it is ordered that the original judgment rendered by this court (21 Ga. App. 753, 95 S. E. 263) be vacated, and the judgment of the trial court be

Reversed.

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


text:
    10220.
    MAULDIN v. THE STATE.
    Decided April 12, 1919.
    Rehearing denied April 22, 1919.
    1. The exception on the ground that the court failed to give to the jury an instruction, not requested, “that the defendant enters upon his trial ■ with the presumption of innocence in his favor, and that this presumption remains with him, in the nature of evidence, until rehutted by proof satisfying the jury of his guilt to the exclusion of a reasonable doubt,” is without merit, in view- of instructions given as to the burden on the State to satisfy the jury, beyond a reasonable doubt, of the defendant’s guilt, “in order to overcome the presumption that he is innocent. ”
    2. The instructions complained of are not subject to the exceptions taken, when considered in connection with the remainder of the charge of the court.
    3. There was evidence to support the verdict.
    Indictment for robbery; from Fulton superior court—Judge Hill. October 25, 1918.

      H. A. Allen, W. I. Heyward, for plaintiff in error, cited:

      Butts v. State, 13 Ga. App. 2?4; Reddick v. State, 11 Ga. App. 150; Thurman v. State, 14 Ga. App. 543; Gardiner v. State, 17 Ga. App. 410; Coffin v. State, 156 U. S. 432, 458.

      John A. Boykin, solicitor-general, E. A. Stephens, contra, cited:

      Middleton v. State, 7 Ga. App. 1 (2).
   Bloodworth, J.

1. In the motion for a new trial in this case it is insisted that “the court failed to instruct the' jury, in his charge, that the defendant enters upon his trial with the presumption of innocence in his favor, and that this presumption remains with him, in the nature of evidence, until rebutted by proof satisfying the jury of his guilt to the exclusion of a reasonable doubt.” The court did charge the jury that “Clarence Mauldin pleads not guilty, and that puts upon the State the burden of proving his guilt, and satisfying your judgments beyond a reasonable doubt that he is guilty of this charge, in order to overcome the presumption that he is innocent, before you could find a' verdict of guilty. . . If you have a reasonable doubt about any material evidence, as stated to you, a doubt which leaves your minds unsettled and unsatisfied, and you would not be willing to act upon in the most serious concerns of life which affected you personally, you will find him out guilty. . . If you have a reasonable doubt growing out of the evidence, the defendant’s statement, or want of evidence, you should give the defendant the benefit of that doubt, and the form of your verdict would be, ‘We, the jury, find the defendant, Charles Mauldin, not guilty/ ” In addition to the above the court told the jury more than once that before they would be authorized to convict the defendant they must be satisfied of his guilt beyond a reasonable doubt. In Reddick v. State, 11 Ga. App. 150 (74 S. E. 901), it was held: “It is error to fail to charge the jury in a criminal ease substantially to the effect that the defendant enters upon his trial with the presumption of innocence in his favor, and that this presumption of innocence remains with him throughout the trial and until his guilt is established by proof.” In Thomas v. State, 129 Ga: 419 (4) (59 S. E. 246), it was held: “An explicit and comprehensive - charge on the subject of reasonable doubt, wherein the. jury are instructed in effect that if after considering the entire case they should have a reasonable doubt of the defendant’s guilt it is their duty to acquit, sufficiently informs the jury that the burden is on the State to prove the defendant’s guilt.” In view of the above rulings there was no merit in this assignment of error. The charge in the instant case meets the requirements of the law as stated in the Reddick case, supra. See also Watts v. State, 20 Ga. App. 182 (2) (92 S. E. 966); Pritchett v. State, 18 Ga. App 737 (90 S. E. 492); Well v. State, 11 Ga. App. 850, 852 (76 S. E. 990)

2. When considered in connection with the entire charge, there is no error in any of the other special grounds of the motion for new trial.

3. There is evidence to suppórt the verdict, and the motion for new trial was properly overruled.

Judgment affirmed.

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


author: Stepiiens, J.

text:
    10221.
    Herndon v. The State.
    Decided April 12, 1919.
   Stepiiens, J.

Where a statute provides that it is a misdemeanor for one to “wilfully” ride or drive a horse or mule belonging to another without the owner’s consent, an. accusation charging one with “unlawfully” driving a mule of another without the owner’s consent, and failing to charge that the same was “wilfully” done, sets out no violation of the statute; nor does it charge the commission of any offense whatsoever. The trial judge therefore erred in overruling the motion in arrest of judgment.

Judgment reversed.

Broyles, P. J., and Bloodmorth, J., concur.

Accusation of misdemeanor; from city court of Jesup—Judge Clark. November 4, 1918. - '

W. -W. Bennett, for plaintiff in error, cited:

Penal Code (1910), § 333; Mathews v. State, 16 Ga. 31-3; Herring v. State, 114 Ga. 96-99.

W. B. Gibbs, solicitor, J. R. Thomas, contra, cited:

Badger v. State, 5 Ga. App. 477; Black v. State, 3 Ga. App. 397, and citations.


author: Stephens, J.

text:
    10234.
    RANDALL v. THE STATE.
    Decided April 12, 1919.
    The evidence being insufficient to support the verdict of guilty, the trial judge erred in overruling the motion for new trial.
    Conviction of vagrancy; from Glascock superior court-r Judge Walker. October 35, 1918.

      J. C. Newsome, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Stephens, J.

Aaron Eandall was convicted in the superior court of Glascock county under an indictment charging vagrancy. The date named in the indictment was August 15,1918. The indictment contained several counts; the jury found the defendant guilty only on the second count, which specifically charged' the defendant with the offense of vagrancy, for that he did on the date and in the county named lead an idle, immoral, profligate life, having no property to support him and being able to work, and failing and refusing to work, did not work, etc.

The evidence on behalf of the State showed, briefly, that during the year 1917 the defendant had made a good crop,—some thirteen bales of cotton and 150 bushels of com, and, after paying his debts, had money sufficient to purchase an. automobile, fifty dollars in cash, and some corn. Sometime after October, 1917, he moved from Glasqhck county to Jefferson county, and there remained until sometime in May, 1918, when he returned to his father’s house in Glascock county, where he remained for two or three weeks, during which time, the State’s witnesses testified, they did not see him do any work, although he. might have worked. He was arrested at his father’s house and carried back to Jefferson county, and there remained until sometime in July, 1918, when he again returned to Glascock county, where he was afterwards prosecuted for this offense. Evidence on behalf of the defendant, which was uncontradicted in any particular, showed that after he moved back to Glascock county, in July, he went to work for a Mr. Coxwell and worked continuously during that month, except two or three days. There was further positive evidence on behalf of the defendant showing that he did work the greater part of the time when he was in Glascock county. His employer, Mr. Coxwell, testified positively to this. This case falls squarely under the rulings laid down in the eases of Hartman v. State, 119 Ga. 427 (46 S. E. 628), and Elders v. State, 17 Ga. App. 742 (88 S. E. 414).

The learned trial judge erred in-overruling the motion for a new trial.

Judgment reversed.

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


text:
    10267.
    Cason v. The State.
   Broyles, P. J.

1. The defendant’s motion for a continuance of the

ease, based upon the absence of two witnesses, did not show that he expected to be able to have the testimony of the witnesses at the next term of court. Moreover,’as shown by the special ground of the motion for a new trial, complaining of the overruling of the motion- for a continuance, both witnesses resided in the state of Florida. Under these circumstances, the court did not err in overruling the motion. Penal Code (1910), § 987; Boyd v. State, 17 Ga. App. 162 (86 S. E. 411); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814); Owins v. State, 110 Ga. 292 (34 S. E. 1015) ; Minder v. State, 113 Ga. 772 (39 S. E. 284).

2. The charge of the court that “Provocation by words, threats, menaces, or contemptuous gestures shall in nó case be sufficient to free the person, killing from the guilt and crime of murder” (Penal Code, § 65) was not erroneous for any reason assigned. Deal v. State, 145 Ga. 33 (88 S. E. 573) ; Buxton v. State, 19 Ga. App. 331 (91 S. E. 490).

3. The 3d special ground of the motion for a new trial (erroneously numbered “4”) is expressly abandoned in the brief of counsel for the plaintiff in error.

4. Failure to instruct the jury as to the penalty for the offense of assault with intent to murder was not error, in the absence of a timely written request.

5. The fact that two of the jurors were members of the grand jury that found the bill against the- accused is not cause for a new trial. The accused and his counsel, by the exercise of due diligence, could have discovered this fact before the jury was empanelled. Britt v. State, 112 Ga. 583 (37 S. E. 886).

Decided April 12, 1919.

Indictment for assault with intent to murder; from Charlton superior court—Judge Summerall. September 25, 1918.

James R. Thomas, A. S. McQueen, for plaintiff in error.

A. B. Spence, solicitor-general, M. D. Dickerson, Wilson & Bennett, contra.

6. The alleged newly discovered evidence (the basis of the 6th, 7th and 8th special grounds of the motion for a new trial) being cumulative and impeaching in its character, it does not appear that the trial judge abused his broad discretion in overruling these grounds of the motion.

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

Judgment affirmed.

Bloodworth and Stephens. JJ. concur.


text:
    10273.
    Smith v. The State.
    Decided April 12, 1919.
    Conviction of voluntary manslaughter; from Jasper superior court—Judge Park. December 10, 1918.
    Prom the 4th ground of the motion for a new trial it appears,' that there was testimony to the effect that when, in reply to a question of J. L. Burney, the defendant said that Shep Saffold, the person he was charged with having killed, was killed by his own pistol, Burney said, “That won’t do; I have got his. pistol here, and Shep’s pistol hadn’t been shot;” and the defendant said nothing then. This statement of Burney was objected to as his mere opinion on facts to be passed upon by the jury, and-counsel for the defendant moved to rule it out. The court held that it was admissible as a part of the conversation between Burney and the defendant. It is alleged that the court erred in refusing to exclude it.
   Bloodworth, J.

1. The court did not err in admitting evidence as complained of in the 4th ground of the motion for a new trial.

2. There was ample evidence to authorize the charge of the court on voluntary manslaughter. See Weldon v. State, 21 Ga App. 330 (1h) (94 S. E. 326), and cases cited.

3. Tne instructions on voluntary manslaughter, set out in the motion for a new trial, are not subject to the exceptions taken, when read in connection with the remainder of the charge of the court.

4. “In charging section 70 of the Penal Code, failure to explain to the jury the meaning of the word ‘felony/ used therein, is not 'cause for a new trial, in the absence of an appropriate and timely request so to do.” Pressley v. State, 132 Ga. 64 (3), 65 (63 S. E. 784); Pickens v. State, 132 Ga. 46 (63 S. E. 783) ; Jordan v. State, 16 Ga. App. 393, 400 (85 S. E. 455).

5. The requests to charge, so far as pertinent-and legal, were covered by the charge as given.

6. There was evidence to support the verdict; and the judgment is Affirmed.

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

W. S. Florence, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.


author: Broyles, P. J. Stephens, J.,

text:
    10286.
    WILLIAMS v. THE STATE.
    Decided April 12, 1919.
    1. It is positive testimony for a witness to say that a thing did or did not happen; it is negative testimony for a witness to say that if such a thing happened he did not see it or know of it. ' '
    2. There being both positive and negative testimony in the present case, it was not erroneous to give in charge to the jury the law in reference to the comparative value of the two classes of testimony.
    Indictment for carrying concealed weapon; from Wilkinson superior court—Judge Park, December 11, 1918.

      Allen & Pottle, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, P. J.

The plaintiff in error was indicted for carrying a concealed weapon and was convicted. The only contention argued in the brief of his counsel is that the court erred in instructing the jury upon the law of positive and negative testimony. It is well settled that where there is both positive and negative testimony in a case, it is not erroneous for the court to charge the jury the law in reference to the comparative value of the two classes of testimony. Heywood v. State, 12 Ca. App. 643 (2) (77 S. E. 1130). „ Hpon the trial of the instant case the State, by positive testimony, showed that the defendant was carrying a concealed pistol. Several witnesses were introduced in behalf of the •defendant, one of them testifying as follows: “I saw Eobt. Williams [the defendant] distinctly, ... he did not draw a pistol at that time, and did not have one that I saw. I was in full view of him all the time. If he had one I did not see it. He did not have on a coat.” Part of this witness’s testimony was clearly negative. His testimony as to the defendant’s not drawing a pistol and' not haying on a coat was positive; but his testimony as to the defendant’s not having a concealed pistol is purely negative. As was said by the Supreme Court in McConnell v. State, 67 Ga. 633: “The distinction between positive and negative testimony may be illustrated thus: It is positive to say that a thing did or did not .happen; it is negative to say that a witness did not see or know of an event’s having transpired.” In the instant case the witness did not testify that he “had as good opportunity to see the transaction as others who were present, and that no such transaction took place, because he did not see it, when he would have seen it if it had taken place” (see Heywood v. State, supra), but his testimony as to the defendant’s not having a concealed pistol was: He “did not have one that I saw. I was in full view of him all the time. If he had one I did not see it.” This part of the witness’s testimony comes within the ruling in the Heywood case, supra, that “testimony that the witness was present and did not see the transaction is merely negative.” And, as was also said in that case, “there being both positive and negative testimony in the present case, it was not erroneous to give in charge to the jury the law in reference to the comparative value of the two classes of testimony.” Likewise this case comes within the ruling of the Supreme Court in Neill v. State, 79 Ga. 779 (4 S. E. 871), that “Where one witness swears postively that a thing occurred, and another testifies that he had the same opportunity for observation as the first witness; that he did observe; and that the thing did not occur, both are to be treated as positive witnesses, and it would, perhaps, be error to give in charge the rule as to positive and negative testimony; but where a part of á witness’s testimony was positive, and a part negative, and the conflicting witness testified positively, there was no error in giving such rule’ in charge.” See also, to the same effect, Wood v. State, 1 Ga. App. 684 (2), (58 S. E. 271); and Park’s Ann. Penal Code, § 1011, and cit.

In the instant case the undisputed testimony showed that the State’s witness (whose testimony as to the defendant’s guilt was positive) was standing upon a steep embankment, and that all of the defendant’s witnesses who testified in the case were in the road below the'embankment. Thus it does not appear-that the defendant’s witnesses “had as good opportunity to see the transaction” as the State’s witness, for the latter’s position upon the embankment, at a different angle or viewpoint from that of the defendant’s witnesses, may have- enabled him to see that the defendant was carrying a concealed pistol when this could not have been seen by the defendant’s witnesses from their position in the road below the embankment.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting.

The sole witness for the State testified that he saw the defendant draw a pistol from his pocket; and also testified that the defendant had on a coat. The testimony for the defense was as follows: One witness testified that “the defendant, Robert Williams, did not draw a pistol, and did not have one at that time. He did not have on a coat.” Another witness testified: “I saw Robert Williams distinctly. He did not draw a pistol at that time, and did not have one that I saw. I was in full view of him all the time. If he had one I did not see it. He did not have on a coat.” Another witness testified: “Robert Williams did not draw a pistol and did not have one at that time that I could see. He did not have on a coat. He was in plain view of me, and if he had .a pistol I could have seen it.” All of the above testifying, as I construe it, was positive. In the case of Heywood v. State, 12 Ga. App. 643 (2), this court held: “Testimony that the witness was present and had as good opportunity to see the transaction as others who were present, and that no such transaction took place, because he did not see it, when he would have seen it if it had taken place, is positive testimony.” In the case of McConnell v. State, 67 Ga. 633 (4), the Supreme Court held that “It is positive to say that a thing did or did not happen; it is negative to say that a witness did not see or know of an event’s having transpired.” In the case of Neill v. State, quoted from supra, in the majority opinion, it clearly appeared that part of a witness’s testimony was negative. The court in its opinion in that case said: “It was negative as to the acts of Neill all the time that Neill was in the house. He could not testify that he saw Neill the whole time he was in the house.” (Italics mine.) In the instant ease the testimony of all the witnesses for the defendant was to the effect that the defendant was in full view of the witnesses during the whole period of the transaction testified to by the sole witness for the State.

There being no negative testimony in the case, it was highly prejudicial to the accused, and was virtually a direction of a verdict against him, for the trial judge to instruct the jury as follows: “The existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear they did not see or know of its having transpired, provided the witnesses are of the same credibility.” The judge practically told the jury that the evidence for the State was to be believed in preference to the evidence for the defense. The defendant was denied a fair trial, and his conviction should be set aside and a new trial granted.


text:
    10287.
    Gunn v. The State.
   Bloodworth, J.

1. “ ‘It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6) ; Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 [61 S. E. 996]; Strickland v. State, 133 Ga. 76 [65 S. E. 148]; Pyle v. State, 4 Ga. App. 811 [62 S. E. 540].’ Cain v. State, 7 Ga. App. 24 (65 S. E. 1069).” Weldon v. State, 21 Ga. App. 330 (h), 331 (94 S. E. 327). Applying these rulings to the facts of this case, the judge did not err in instructing the jury on voluntary manslaughter.

2. Eor the judge in his charge to tell the jury, “I deem it my duty to give you in charge in this ease the law of voluntary manslaughter,” and in another part of his charge to say, “I will first instruct you, as before stated, in the law of voluntary manslaughter in or upon a sudden heat of passion, and will later instruct you in other grades of this offense, should I deem it necessary from the evidence as .understood by the court,” does not amount to “an expression of opinion by the court that the ease was one in which a verdict for manslaughter should have been rendered;” nor was the last-quoted excerpt from the charge erroneous because “the court did nowhere in his charge submit the other grades of voluntary [ ?] manslaughter, as he had in his charge stated he would do.” See authorities cited in the following paragraph.

3. The charge of which complaint is made in ground 4 of the amendment to the motion for a new trial contains an abstractly correct principle of law; and “a charge which is abstractly correct is not rendered erroneous'by a failure to charge some other legal principle applicable to the case.” Winn v. Bridges, 144 Ga. 497 (3) (87 S. E. 665) ; Central of Georgia Ry. Co., v. Grady, 113 Ga. 1045 (3) (39 S. E. 441; Conley v. State, 21 Ga. App. 134 (94 S. E. 261), and cases cited. 4. The excerpts from the charge complained of in the remaining grounds . of the motion for new trial are not, when read in connection, with the entire charge, erroneous for any reason .alleged.

Decided April 12, 1919.

Conviction of manslaughter; from Worth superior court—Judge Eve. December 7, 1918.

Perry & Williamson, J. J. Forehand, E. E. Cox, for plaintiff in error. R. S. Foy, solicitor-general, contra.

5. No error of law appearing, and there being ample evidence to authorize the verdict, which has the approval of the trial judge, this court is powerless to interfere. • -

Judgment, affirmed.

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


text:
    10297.
    Alexander v. The State.
   Bloodworth, J.

1. The motion to dismiss the writ of error, on the ' ground that “The bill of exceptions was not tendered within twenty days after the overruling of the motion for a new trial,” is overruled. The bill of exceptions contains a recital that it was presented “within twenty days from the date of the order overruling the said motion for new trial.” “Where the bill of exceptions contains a recital that it was tendered within the time prescribed by law, the writ of error, will not be dismissed [on the ground that it was not tendered within that time], although it appears that the judge did not sign and certify the same within the statutory period, unless it be made to appear that his failure so to sign and certify was because of some act of the plaintiff or his counsel. Acts 1896, p. 45 [Civil Code (1910), § 6187]; Moore v. Kelly & Jones Co., 109 Ga. 799 (35 S. E: 168).” Harnage v. State, 7 Ga. App. 573 (67 S. E. 694). See also Strickland v. Brannen, 18 Ga. App. 325 (89 S. E. 337), and cases cited.

2. The indictment in this case charged Felix Alexander with obstructing legal process, and alleged that he “did knowingly and wilfully obstruct and resist and oppose J. S. Blackwell, deputy sheriff of said county, an officer of said State, and a person duly-authorized in serving and executing and attempting to serve a lawful process and-order, to wit, a search warrant issued' by E. T. Portwood, J. P., of -said eounty, au- • thorizing and directing a search of the dwelling house and outhouses of said Felix Alexander.” To support the allegations of the indictment a certain search warrant was offered in evidence, in Which it appeared that the name “Felix Alexander,” originally written therein,' had been erased and the name “Hersehel Beasley” inserted in lieu.thereof. The ' record shows no evidence whatever in explanation of this' change, or that the paper had been altered since tlie sheriff attempted to execute it. On the contrary, the sheriff swore that “the search warrant was ■ at that time in same shape as-it now appears.” This being true, the evidence offered did not support the allegation in the indictment, and the court erred in allowing the search warrant to go to the jury. Without this evidence there was nothing to support the verdict. It is unnecessary to consider the remaining ground of the motion for a new trial.

Decided April 12, 1919.

Indictment for obstructing legal process; from Taliaferro superior court—Judge Walker. November 27, 1919.

J. A. Beazley, for plaintiff in error.

R. C. Norman, solicitor-general, contra.

Judgement reversed.

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


text:
    10309.
    SYKES v. THE STATE.
    Decided April 12, 1919.
    Refusal to exclude evidence objected to as a whole when in part admissible is not ground for a new trial.
    Under the decision of the Supreme Court in Calhoun v. State, 144 Ga. 679 (87 S. E. 893), the objection that the evidence was obtained by illegal arrest and search is not good.
    The evidence authorized the verdict of guilty.
    Accusation of misdemeanor; from city court of Brainbridge— Judge Spooner.' December 16, 1918.

      W. V. Custer, for plaintiff in error.
   Bloodworth, J.

1. The defendant was convicted of carrying concealed weapons. The only ground of the motion for a new trial other than the general grounds complains that the evidence of the witness for the State “was obtained by the unlawful and illegal arrest of the defendant by the witness, his person searched unlawfully and illegally, being forcibly and without' the consent and against the will of the defendant,” and that he was thereby compelled to furnish incriminating evidence against himself, in violation of the constitution: In Calhoun v. State, 144 Ga 679, it was held that, “On the trial of a criminal case, incriminatory evidence which was taken from the person of the accused by one who had illegally arrested him, and who discovered it by search of his person while he was under illegal arrest, if relevant, is not inadmissible as' contravening the constitutional provisions that No person' shall be compelled to give testimony tending in any manner to criminate hemself.’ ” Under that ruling the trial judge did not err in admitting the evidence complained of.

However, even if this were error, this court would be under no duty to consider the assignment of error in this ground of the motion for new trial, for the entire evidence of the witness - for the State was set out therein, the alleged error is the refusal to exclude the entire evidence, and a part of the evidence quoted was clearly admissible. “ ‘Where evidence, partly competent and partly incompetent, was offered and objected-to as a whole, the illegal portion not being specified nor objected to separately, admitting all of such evidence affords no legal cause of complaint to the objecting party Smalls v. State, 99 Ga. 86 (8) [85 S. E. 614]. See also Maynard v. Interstate Association, 118 Ga. 443 [37 S. E. 741]; Southern Ry. Co. v. Gilmore, 115 Ga. 890; Gully v. State, 116 Ga. 587 [48 S. E. 790]; Kelly v. Strouse, Id. 881 [43 S. E. 880]; Walker v. Neil, 117 Ga. 739 [45 S. E. 387] and cit.” Barnard v. State, 119 Ga. 436 (3) (46 S. E. 644).

8. The evidence authorized the verdict, and no error of law having been committed, it must stand.

Judgment affirmed.

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


text:
    10326.
    Page v. The State.
   Bloodworth, J.

1. Where an indictment against two persons charges that the said persons, naming them, did “then and there unlawfully and with force and arms have, possess, and control certain alcoholic, spirituous, malt, and intoxicating liquors,” either one or both of them may be convicted, according as the evidence may show either one or both guilty. Having and possessing intoxicating liquor is not a joint offense, like riot, and the indictment in this case is “joint and several.”

2. When read in the light of the entire charge of the court there is no material error in the excerpts of which complaint is made in the motion for a new trial.

3. Even if it was-error to allow a witness to swear, “We had a seaich warrant to search Gene Page’s house for liquor,” the admission of this evidence could hardly have affected the jury and caused them to find a verdict of guilty, if without this evidence they would not have-done so. Moreover, evidence obtained by an illegal and unauthorized search is admissible against the defendant. Calhoun v. State, 144 Ga. 679 (87 S. E. 893). In addition, this ground of the motion states that when this testimony was objected to there was “no ruling by the court.” A failure to renew and insist upon the motion to reject the evidence will be considered as a waiver of the objection. Lindsay v. State, 138 Ga. 818 (7), 823 (76 S. E. 369), and eases cited; Thurman v. State, 14 Ga. App. 543 (2) (81 S. E. 396), and eases cited.

4. While the evidence in this case is rather weak, this court cannot say as a matter of law that the verdict is without evidence to support it. The verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of evidence, the trial judge has a wide . discretion as to granting or refusing a new trial; but 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. Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.

Decided April 12, 1919.

Indictment for misdemeanor; from Rabun superior court— Judge J. B. Jones. December 28, 1918.

W. S. Paris, Thad. L. Bynum, for plaintiff in error.

Joseph G. Collins, solicitor-general, Robert McMillan, contra.

Judgment affirmed.

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


author: Jenkins, J.

text:
    9417.
    Davis v. Williams.
    Decided April 16, 1919.
    Certiorari; from Thomas superior court—Judge Thomas. D&cember 1, 1917.
    In, this case it was held by the Supreme Court that under the act, creating the city court of Boston (Acts 1914, p. 194) a counter-affidavit to a distress warrant properly returned to that court is triable at the first term thereafter.

      Clifford E. Hay, for plaintiff in error.

      J. U. Merritt, W. I. MacIntyre, contra.
   Jenkins, J.

In accordance with the answers made by the Supreme Court to the questions certified to it in this case (148 Ga. 765, 98 S. E. 5), the ruling of the court below in refusing to sanction the certiorari is sustained.

Judgment affirmed.

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


text:
    9918.
    LeSUEUR v. CRAWFORD.
    Under the terms of the contract in question, by which the defendant, a purchaser of land, agreed to pay to the vendor a certain sum due on ■the purchase-price if in a claim case then pending it should be determined that the land was not subject to an execution in favor of another, no cause of action on the contract is set out in the petition, it being alleged therein that in the claim case the land was found subject to the execution, although it is alleged that this finding was the result of collusion between the defendant, who was the claimant in that case, and the plaintiff in execution, and that the verdict and judgment were void.
    Decided April 16, 1919.
    Complaint; from Pike superior court—Judge Searcy. May 4, 1918.
    W. A. LeSueur, as transferee of Mrs. Frances Amanda Fitts, brought suit against J. T. Crawford in the superior court of Pike county, for $300, based upon the following contract:
    “Georgia, Pike'County.
    Jan. 13, 1914.
    “As soon as the matter between M. B. Fitts and the ^Barnesville Bank, amounting to $275.00, now due them by M. B. Fitts as endorser for Bobert Nelson, is adjudicated through the courts, I promise to pay Mrs. Frances Amanda Fitts three hundred dollars, provided said courts decide the question in favor of said Mrs. Frances Amanda Fitts. Otherwise, should the courts decide this property of a certain farm located in the 7th district of said county subject to the above described indebtedness of M. B. Fitts, then I agree that the said maker of this paper is authorized to settle for the amount of the claim with the Barnesville Bank, and I also agree to deliver this paper without value received to the said maker. Three hundred dollars so held and due is the balance of purchase-price to be paid as above indicated.
    J. T.- Crawford (L. S.)”
    “Witness: L. C. Tyus, N. P.
    “This note payable to W. A. LeSueur. Jan. 31, 1914.
    “Mrs. Frances Amanda Fitts.”
    . The petition alleges that this contract was given to Mrs. Frances Amanda Fitts for the balance of the purchase-money due her by the said J. T. Crawford for a certain tract of'land sold and conveyed under a warranty deed by Mrs. Fitts to the defendant; that this land was levied on as the property of her husband, M. B. Fitts, under a fi. fa. against him in favor of the Barnesville Bank, and a claim was interposed by the said Crawford; that at the April term, 1916, of the superior court of said county Crawford colluded with the Barnesville Bank and consented that’ the land should be found subject to the fi. fa., and he now refuses to pay the amount due for the purchase-price of the land; that Mrs. Fitts had no notice of this trial,' and that the verdict finding the property subject was fraudulent and void as to her and the plaintiff. By amendment it was alleged that M. B. Fitts had no title to or interest in the land, and had never had any; that after it had been levied on under the fi. fa. and the claim had been interposed by Crawford, it was understood between Mrs. Fitts, the bank, and Crawford that Mrs. Fitts was to be notified when the claim case was to be tried, in order that she might, appear and defend the title to the land against the execution levied upon it in favor of the bank, and that the claim case was not to be tried without notice to her'; that notwithstanding this agreement, and in her absense, Crawford, although he had a warranty deed to the land from her, fraudulently conspired with the bank, and consented that the land might be found subject to the fi. fa., and that the bank entered into a written obligation to refund to him $300 in the event the land .should not be found subject. The plaintiff prayed in the amendment that the Barnesville Bank be made a party to the ease, and be served with a copy of the original petition and the amendment, and that the bank and Crawford be required to show cause why the judgment finding the property subject should not be set aside as fraudulent and void. A general demurrer to the petition was sustained, and to this ruling exception is taken.

      J. E. Garland, E. F. Dupree, for plaintiff.

      Redding & Lester, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Since, by the terms.of the conditional contract sued upon, the defendant was not to become liable thereon until the pending claim case involving the question as to whether the land was or was not subject to the indebtedness of M. B. Fitts to the Barnesville Bank had been adjudicated in favor of Mrs. Frances Amanda Fitts, and the petition showing upon its face that a judgment had been rendered adversely to her, the court did not err in sustaining the general demurrer and dismissing the" petition. Even though the judgment finding the property subject should be set aside for fraud, the plaintiff would not thereby be entitled to maintain his present suit; for the defendant’s liability is, by the terms of the contract itself, made, subject to the final adjudication of this question, and the setting aside of the former judgment would leave that matter undetermined.

Judgment affirmed.

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


author: Wade, C. J.

text:
    9923.
    Williams v. Central of Georgia Railway Co.
    Decided April 16, 1919.
    Action for damages; from city court of Macon—Judge Guerry. June 19, 1918.
    From the petition it appears that the plaintiff, a carpenter employed in the car-shop of the railway company, was standing on a scaffold in the shop, pulling out of a hole in a stake a bit which he had driven into it, when the bit suddenly came out and he fell from the scaffold to the floor and received certain injuries, which he alleges were caused by negligence of the company in not furnishing to him a bit suited to the purposes for which he was required to use it and in furnishing one not suited to the work in hand, and also in furnishing a platform too narrow for safety. It is alleged in substance: that he was engaged in repairing a dismantled coal-car; that other employees had bored holes in uprights or stakes placed in sockets alongside the floor of the car, and it was his duty to fasten planks on the inside of the stakes to a height of some four feet from the floor; that the planks had been nailed on the inside of the stakes so as to hold them securely against the stakes while holes were being bored through the planks; that it was his duty to place an air-driven bit through one of the holes in one of the stakes in order to bore a hole through the plank, so as to make the hole fit a bolt to be put through the stake and the plank; that a scaffold six or eight feet high and only about ten or twelve inches wide at the top was furnished to him to stand on; that to have been reasonably safe the scaffold‘should have been three or more feet wide at the top; that he was compelled to work' with a bit which was a sixteenth of an inch larger than the hole in the stake; that he had on a number of occasions asked his foreman for a bit of proper size, bnt was told that the company did not have such a bit; it had not had one for sixty or ninety days before the occasion on which he was injured; that on that occasion the foreman, in reply to his request for a bit of the proper size, told him the company did not have one, but would procure one in a short time; whereupon he used the one that had been furnished to him; that he placed it at the hole in the stake, and, because of its being only a sixteenth of an inch larger, it would not cut the hole in the stake larger, but under pressure from the air-pump it wedged itself through the hole tightly and was driven on through the plank, boring a hole through it; that when he undertook to pull the bit out, it came through the hole in the plank readily, hut it was necessary for him to exert considerable strength in order to. pull it out of.the hole in the stake, and while he was doing this the bit suddenly came out, causing him to fall from' the scaffold to the floor and to receive injuries described. It is alleged that the air-pump used in propelling the hit was heavy, and he did not know there was danger of the bit coming suddenly out of the hole, and by the exercise of ordinary care he could not have known of this danger; that to his eye the hole in the stake appeared to be exactly similar to many other holes through which he had bored on this ear and had' pulled the bit out of the holes in both the planks and the stakes, and this was the only time he had any trouble of this kind; and if the company had furnished him with a hit a sixteenth of an inch smaller he would not have been exposed to the danger.
   Wade, C. J.

Even if the allegations of the petition as finally amended, be construed most strongly in favor of the plaintiff (and not against him as _ the law requires), the court did' not err in dismissing it on demurrer; for it affirmatively appears therefrom that, although the defendant, his master, may have been guilty of negligence in furnishing him defective instrumentalities with which to work, his opportunities to discover their defective condition were equal, if not superior, to those of the master, since the defects were patent to superficial observation and were in fact observed by him before he was injured. Butler v. Atlanta Buggy Co., 10 Ga. App. 175 (73 S. E. 25) ; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (4) (86 S. E. 82), and cases cited. Moreover, the allegations show, as a matter of'law, that his injury was the consequence of his own negligence coupled with the operation, of natural law, the effect of which he could estimate as well as the master. Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158),

and cases cited.

Judgment affirmed.

Jenkins and Luke, JJ., concur.

Atkinson & Born, Charles Akerman, for plaintiff, cited:

Civil Code (1910), § 3783; Pitts v. Florida Central &c. R. Co., 98 Ga. 605; Bowen v. Adams, 139 Ga. 688-91; Hough v. Ry. Co., 100 U. S. 313; Gela Valley R. Co. v. Hall, 333 U. S. 94, 101-2, and cit.; Stirk v. Cen. R. Co., 79 Ga. 495.

R. C. Jordan, for defendant, cited:

W. & A. R. Co. v. Moran, 116 Ga. 441; Ludd v. Wilkinson, 118 Ga. 535; Banks v. Schofield’s Sons Co., 136 Ga. 667; Hobbs v. Bowie, 131 Ga. 431; Wilder v. Miller, 138 Ga. 139; Bolden v. Cen. Ry. Co., 130, Ga. 456; Flury v. Hightower Box Co., 133 Ga. 300; Southern Ry. Co. v. Taylor, 137 Ga. 704; Butter v. Atlanta Buggy Co., supra; Kilgo. v. Rome Soil Pipe Mfg. Co., supra; Williams v. A. C. L. R. Co., supra; Waldo v. Cen. Ry. Co., 11 Ga. App. 484; Elliott v. Tifton Hill Co., 12 Ga. App. 498; Shue v. Cen. Ry. Co., 6 Ga. App. 714 (distinguished).


author: Luke, J.

text:
    9945.
    Chattanooga Railway & Light Co. v. Wallace.
    Decided April 16, 1919.
    Action for damages; from Walker superior court—Judge Wright. April 25, 1918.

      Glenn & Napier, Henry & Jackson, for plaintiff in error.

      Rosser & Shaw, contra.
   Luke, J.

1. As to a trespasser on the track of a railroad company it is a general rule that the duty of observing ordinary care and diligence for his protection does not devolve upon the company’s agents in charge of a train, 'until his presence upon the track becomes known to them, but where the circumstances are such that they are bound on a given occasion to anticipate that a person may be upon the track at a certain place, they are under a duty to take such precautions to prevent injury as would satisfy .the requirements of ordinary care and diligence. Western. & Atlantic R. Co. v. Davis, 21 Ga. App. 461 (94 S. E. 660), and cases cited.

(a). Whether or not the locality, the time, and circumstances of an injury to one using the right of way of the railroad company, and the known habits and frequency of the public in using it, create such a condition as will charge those operating its trains with the special' . duty of looking out for-the presence of a trespasser at the time and place of the injury, is generally a question for the jury to determine. Pope v. Seaboard Air Line Railway, 21 Ga. App. 251 (94 S. E. 311).

2. The evidence supported the petition, which set forth a good cause of . action, and 'for ho reason assigned did the court err in refusing to grant a nonsuit, or in thereafter entering judgment upon the verdict.

Judgment affirmed.

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


text:
    9954.
    MORRIS v. SEABOARD AIR-LINE RAILWAY.
    Where one injured in a railway collision executes voluntarily, and upon a consideration adequate for the injuries then known, a written release' of all claim on account of his injuries,' he can not, on subsequent discovery of injuries not known or suspected at the time of the settlement, obtain a cancellation of. the release, on the ground of mistake, in. the absence of fraud or undue influence, arid recover for such injuries, although the compensation received is wholly inadequate in view of the injuries actually inflicted.
    Decided April 16, 1919.
    Action for damages; from Gwinnett superior court—Judge Cobb. June 9, 1918.

      D. K. Johnston, Westmoreland, Anderson & Smith, for plaintiff, cited:
    Civil-Code (1910), §§ 4565, 4579, 4580; 109 Ga. 439 ; 135 Ga. 11; 93 Atl. 115; 136 Fed. 118; 111 Minn. 193 (20 Ann. Cases, 748); 132 App. Div. (N. Y.) 553; 85 Atl. 716; 149 N. W. 933; 87 Ark. 614; 171 S. W. 1187.

      N. L. Hutchins, Erwin, Rucker & Nix, for defendant, cited:
    109 Ga. 439; 53 L. R. A. 507; 66 L. R. A. 734.
   Wade, C. J.

Morris brought suit against the Seaboard Air-Line Eailway on account of certain personal injuries received by him in a “head oh” collision, while a passenger on a train. The answer included a plea of accord and satisfaction, based upon a written release executed by the plaintiff. The release is in full as follows: “Seaboard Air-Line Railway, Eelease. For and in consideration of the sum of five & 00/100 dollars ($5.00) to me paid, the receipt of which is hereby acknowledged, and for no other consideration whatsoever, I, J. Edgar Morris, do hereby release and forever discharge the Seaboard Air-Line Eailway, and any and all railroads owned, leased, operated, or controlled by it, and its successors, from all claims and causes of action for or by reason of injuries received by me on or about December 6, 1915, at or near Dacula, Georgia, while a passenger in the employ of the Seaboard Air-Line Railway; the consideration hereinbefore referred to being in full compromise, satisfaction, and discharge of all claims and causes of action arising out of the' injuries and in exoneration of the railway from all liability by reason thereof. In witness whereof I hereunto set my hand and seal, this the 7th day of December, A. D. 1915. J. Edgar Morris (Seal). Signed, sealed, and delivered in the presence of: P. C. Langston.” In an amendment to the petition the plaintiff admitted the execution of the release referred to, but sought to. avoid its effect, by alleging that the release was executed under a “mistake' of fact,” and prayed for a cancellation thereof. The allegations in reference to the “mistake, of fact” are: “that at the time he executed samé [the release] he belived that the injury which he had receivéd at the hands of defendant in the manner set out in the original petition was very slight, and could not possibly result seriously to him; that at the time he executed said release there was no apparent injury as a result of the collision aforesaid, except a slight bruise or contusion on his forehead, which at the time (the next day after he had received the injury) gave him practically no pain. JEe believed that he had only received a bruise which would pass away in a few days, and under this misapprehension or mistake of fact he executed the release referred to, for a consideration of five dollars, which he estimated was enough to cover the actual expenses to which he had been put because of the late arrival of his train in the City of Atlanta, which was his destination, and the necessity of hiring a taxicab and incurring other expenses in connection therewith.” The defendant demurred to the petition as amended, on the ground that it showed upon its face the execution of the release relied upon to defeat a recovery, and that no sufficient grounds were alleged to warrant its cancellation. The trial judge sustained the demurrer, and dismissed the petition. This is excepted to and assigned as error.

There being no allegation that the alleged “mistake of fact” was due to the fraud or misrepresentations of the defendant or its agents, the sole question for determination by this court is whether or not the written release executed by the plaintiff should have been cancelled because executed under the belief that his injury was a slight bruise, when he was in fact seriously, painfully, and permanently hurt. The Supreme Court in the case of Jossey v. Georgia Southern & Florida Ry. Co., 109 Ga. 439 (34 S. E. 664), held, that “One who signs a contract which recites that in consideration of a stated sum paid him by a railroad company he releases it from all liability for a personal injury, which he contends was caused by its negligence, will be estopped from claiming that the release is not binding upon him, because he thought when he signed the contract that it related only to the time he lost in consequence of the injury and did not cover damages caused thereby, when it appears that no fraud of any kind was practiced upon him, and that, having ample opportunity and capacity to read it, he negligently failed to do so.” From a careful examination of the books there appears to be no Georgia case directly in point—involving mistake of fact in the execution of a release to a railroad, but there is direct authority from other reviewing courts on the question here considered. In the ease of Houston & Texas Central Railroad Co. v McCarty, 94 Tex. 298 (60 S. W. 429, 53 L. R. A. 507, 86 Am. St. E. 854), it is held that a release in full by one injured by the negligence of a railroad company upon a consideration adequate for the injury then known, cannot be set aside on the ground of mistake, upon the subsequent discovery of internal injuries not known or suspected at the time of the settlement, and a recovery permitted for such injuries, although the compensation received is wholly inadequate in view of the injuries actually received. Again, in Quebe v. Gulf, Colorado & Santa Fé Ry. Co., 98 Tex. 6 (81 S. W. 20, 66 L. R. A. 734, 4 Am. Cas. 545), it is held that knowledge of the injuries which may develop in the future from an accident is not necessary to support an intention to release all liability for the result of such accident, prospective as well as present; that re-employment of an injured employee for one day, and for such further time as may be satisfactory to the employer, is sufficient consideration to support a release of liability for injuries caused by the negligence of the employer, where at the time the release was giveü the injuries were believed by both parties to be slight and insignificant, although they subsequently prove to have been serious, and to have destroyed the employee’s ability to labor. It is our opinion that these rulings are sound. Had the release been attacked for fraud, the question, of course, would have been entirely different. However, the petition under consideration showing on its face that at the time the plaintiff signed the release he knew (there being no allegation of fraud or undue influence on the part of the railway company) that its purport and effect were a settlement in full for all injuries received by him in the collision, there can be no recovery for an injury unknown to the parties at that time and not considered by them. The general rule in cases of this kind, by the great weight of authority, we think is that where a party who has a claim against another for personal injuries agrees upon a settlement of his claim, and accepts a sum of money or other thing of value in settlement of such claim, he is, in the absence of fraud or concealment, concluded by the settlement. See Rideal v. Great West R. Co., 1 Fost. & Fin. 706; Kowalke v. Milwaukee Electric &c. Co., 103 Wis. 472, (79 N. W. 762, 74 Am. St. R. 877); Seeley v. Citizens’ Traction Co., 179 Fa. 334 (36 Atl. 229) ; Alabama & V. R. Co. v. Turnbull, 71 Miss. 1029 (16 So. 346) ; Homuth v. Metropolitan Street R. Co., 129 Mo. 629 (31 S. W. 903). The case first cited (Rideal v. Great Western R. Co.) was very much like the case before us, in the respect that at the time of the release the injuries appeared trivial, but they afterwards proved to be serious and permanent.

In the case under review we are unable to see any circumstance to take the release out of the general rule. The release signed by the plaintiff was a binding contract by which he took the chances as to future development of the injuries. No circumstance of undue influence or overreaching is shown. So far as appears from, the petition he acted freely and voluntarily in 'making the settlement. The consideration was a valuable and legal one) though small, and the smallness of the consideration cannot by itself furnish ground for cancellation of the release. Under any other rule than that here announced, no one could ever make a settlement and take a release with the assurance that it would not be attacked and set aside on the statement of the person who executed it that when he signed it he was mistaken as to the extent of his injuries as thereafter developed. From what is hereinbefore said, it is the opinion of this court that the trial judge did not err in sustaining the demurrer and dismissing the suit.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9970.
    WEAVER v. PRIDGEN & HOLMAN
    Decided April 16, 1919.
    Under the facts in this case the trial judge erred in dismissing the motion for a new trial.
    " Motion for new trial; from city court of Morgan-—Judge Miller. June 22, 1918.

      E. L. Smith, for plaintiff.

      Glessner & Collins, for defendants.
   Jenkins, J.

During the December adjourned term, 1917, of the city court of Morgan, this case was tried and a verdict was rendered in favor of the defendants. Prior to the adjournment of the term and within the time allowed by law the plaintiff presented his motion' for a new trial; and on June 17, .1918, the time set for a hearing of the motion, the trial judge passed an order setting it for hearing on June 22, 1918, at six o’clock p. m., and in the order allowed the movant' until that time to preparé and present for approval a brief of the evidence in the case. At the hour of ten o’clock a. m., on June '22, 1918, by reason of a misapprehension of the order and in the absence of the movant’s counsel, the trial judge, on motion, passed an order dismissing the motion for a new triál, on the ground that the brief of evidence had not been prepared and presented for his approval. To this order the plaintiff excepted in a bill of exceptions certified by the trial judge on July 10, 1918. A motion to dismiss the bill of exceptions is made by the defendants in error, in which motion it is stated, under the oath of their counsel, that on October 14, 1918, during the September adjourned term of the city court, defendants filed a written motion to dismiss the plaintiff’s motion for a new trial, on the ground that the brief of evidence as required by the order dated June 17, 1918, 'was not prepared and presented for approval by six o’clock p. m., on June 22, 1918, nor at any subsequent time, and that upon that motion and during the said term the trial judge passed a second order dismissing the motion for a new trial; and it is contended that in view of the said final judgment rendered after the void judgment excepted to by the plaintiff, the bill of exceptions presents merely a moot question, and could not have been prosecuted in good faith, since it was adjudicated in the second order of dismissal that the brief of evidence was not presented for approval at the time prescribed by the order of June 17, 1918.

1. The first order dismissing the motion for a new trial, on the ground that the brief of evidence had not then been presented for-approval, was erroneous, it appearing that the motion was inadvertently taken up and disposed of at a time prior to that specified by the order fixing the time and place of hearing and the time when the brief of evidence should be presented.

2. When the bill of- exceptions to the first order dismissing the motion for a new trial had been certified by the trial judge and filed in the office of the clerk of the city court, that court, pending a determination thereon by this court, lost its jurisdiction to take any further action upon the'motion (Howard v. Lowell Machine Co., 75 Ga. 325 (la) ; High v. Candler, 103 Ga. 86, 88, 28 S. E. 377); and the fact - that the brief of evidence was not presented for approval after the time when the motion was erroneously dismissed and prior to the time set for its presentation under the judge’s order would not militate against the rights of the plaintiff. The motion to dismiss the bill of exceptions is therefore without merit. Had the second order been taken at a time when the court below still retained jurisdiction over the motion, and had it been based on discretionary grounds, a different rule might obtain. See Broadway National Bank v. Kendrick, 130 Ga. 383 (60 S. E. 998).

3. Under the facts as certified to by the trial judge, the court below having been without jurisdiction to dismiss the motion for a new trial under its original order, and it appearing that the subsequent order dismissing the motion in. term time was void for want of jurisdiction, the motion for a new trial is still pending in the courts below, to be completed and determined in term time, under the statute. Civil Code (1910), § 6090; Phænix Bank v. Shirling, 146 Ga. 163 (91 S. E. 33).

Judgment reversed.

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


text:
    9973.
    Jones Brothers v. Richards.
    Decided April 16, 1919.
    Affidavit of illegality; from city court of Carrollton—Judge Beall. June 13, 1918.

      Boykin & Boykin, for plaintiff in error. Leon Hood, contra.
   Wade, C. J.

“Where a case has been tried by a jury and a verdict rendered therein, and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensibje.” Mackin v. Blalock, 133 Ga. 550 (4) (66 S. E. 265, 134 Am. St. R. 220). See also Civil Code, § 6144. A review of the evidence supporting the verdict in this case being sought by direct bill of exceptions without a motion for a new trial, and there being no error of law complained of, the writ of error must be dismissed. Sanders v. State, 84 Ga. 217 (10 S. E. 629); Ford v. Wilson, 85 Ga. 109 (11 S. E. 559); Gibson v. Maxwell, 85 Ga. 235 (11 S. E. 615); Hyfield v. Sims, 87 Ga. 280 (13 S. E. 554) ; Holsey v. Porter, 105 Co, 837 (31 S. E. 784; an cases cited in Park’s Ann. Code, note to § 6082, p. 4189, catchwords “Direct exception.”

Writ of error dismissed.

Jenkins and Luke, JJ„ concur.


text:
    9981.
    Georgia Creosoting Company v. McIntosh Land and Timber Company.
   Jenkins, J.

1. If a seller of goods fails to deliver theta in the time specified in the contract of sale, and the purchaser thereafter urges delivery, and as an inducement therefor impliedly offers to waive his claim for damages on account of the delay in the performance of the contract, subsequent compliance by the seller with his acceptance of the terms of the proposal, within the time specified therein, or, if no time is specified therein, then within a reasonable time, by tendering the property called for by the contract, will ftirnish a valid consideration for the proposal, and operate to render it binding upon the purchaser. If only a portion of the property should be thus subsequently tendered by the seller as in part compliance with such proposal, the purchaser’s acceptance of the portion thus tendered would operate to-bind him under his waiver to the extent, of the tender and acceptance, even though the reasonable time covered by the extension might have in fact expired; but the waiver of damages by such acceptance of the- partial tender would be pro tanto only, and would not operate as a waiver of the purchaser’s claim for damages on the basis of the original breach, as to the portion of the goods remaining undelivered. Gude v. Bailey Co., 4 Ga. App. 226, 230 (61 S. E. 135).

2. If such partial tender and acceptance be made at a time such as, the jury might find was subsequent to the expiration óf the reasonable' extension implied under the proposal as made by the purchaser, and the purchaser, at the time of such partial tender and acceptance, makes another and additional offer whereby he again and specifically proposes to waive all damages incurred by the seller’s delay, provided the remainder of the contract should be fully completed by a date named in th'e new proposal, the latter offer does not amount to- an. agreement binding upon the purchaser unless the seller complies with the condition thus imposed; and, upon the seller’s rejection- of. the new proposal at a time when his reasonable period of extension under .the former proposal might be taken to have already expired, his liability for" damages, on the basis of . the original breach, for his failure to deliver the -portion of the goods still outstanding under the order, becomes absolute (Hardwood Lumber Co. v. Adam, 134 Ga. 821 (6), 68 S. E. 725, 32 L. R. A. (N. S.) 192; Wiggin v. Marsh Lumber Co., 77 W. Va. 7, 87 S. E. 194); and the purchaser would have the right to withhold any payments actually due the seller under the preyious shipments, to the extent of his damage thus sustained.

3. There is, however,- in the record in this case nothing - that would authorize the seller to refuse to ship the remaining undelivered portion of the ' goods contracted for, on the ground that ,the purchaser. had failed- to make payment for any separate and previous shipment, tipon its delivery;- since the record discloses nothing to vary the general rule that where a contract provides for the sale ,of a specified commodity, to be shipped to the purchaser at a named price, shipment to be completed within a stated. period, the agreement constitutes an entire contract, although the subject-matter is divisible, and failure of the purchaser to pay for any separate shipment upon its delivery and prior to the delivery of the entire amount would not, as a matter of law, operate as a breach of the contract on his part, there being nothing in the record to show any such previous course of dealings between the parties, or the existence of any such custom of trade as might raise the implication that an intention different from the one just indicated was in the'minds of the parties at the time the contract was effected. Central Georgia, Brick Co. v. Carolina Portland Cement Co., 136 Ga. 693 (71 S. E. 1048).

Decided April 16, 1919.

Complaint; from Glynn superior court—Judge Highsmith. June 1, 1918.

Bennet, Twitty & Reese, for plaintiff in error.

A. D. Gale, contra.

4. Under the rules stated above the court erred in directing a verdict for the plaintiff on the theory that, as there had been a mutual disregard of the terms of the contract pertaining to the time of delivery up to the date of last shipment, the failure of the purchaser to pay for the last partial delivery when made amounted to a breach of the contract on its part, such as would prevent it from- recovering damages from the plaintiff because of failure to comply with 'the terms of the contract relative to the portion of the goods not actually delivered or tendered.

Judgment reversed.

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


text:
    10012.
    McDonald v. Bell.
   Jenkins, J.

1. A landlord may elect to treat an undertenant or lessee of his premises as his own tenant, and, upon such, an affirmative election being made, the continued occupancy of the premisés by the under, tenant operates to render him liable to the landlord for the rent subsequently accruing. Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178) ; Fountain v. Whitehead, 119 Ga. 241 (46 S. E. 104) ; McConnell v. East Point Land Co., 100 Ga. 129 (28 S. E. 80) ; Hearn v. Huff, 6 Ga. App. 56 (64 S. E. 298).

2. While it is true that “when a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position” (Rap v. Cruce, 21 Ga. App. 539, 541, 94 S. E. 899, and eases there cited), this principle of law can not be invoked in favor of the plaintiff in the present distress-warrant proceeding. Although the record discloses testimony to the effect that in a former proceeding instituted by the same plaintiff to evict the same defendant as an intruder, and which resulted in a mistrial, the defendant himself testified that he had been accepted by the owner as the tenant of the property now involved in lieu of the original tenant, still, since it ^appears that the plaintiff, by her own testimony in the present distress-warrant proceeding, has completely negatived her right to maintain such remedy, by repeatedly and unequivocally stating that she never at any time accepted or recognized the defendant as her tenant, but that she continued to bold the original tenant liable under the terms of his agreement, she is bound by her own solemn and fatal admissions thus made, despite the testimony as to what had been the previous conduct and admissions of the opposite party. ,

Decided April 16, 1919.

Distraint; from city court'of Blakely—Judge Sheffield. May 21, 1918.

L. M. Rambo, A. H. Gray, for plaintiff.

A. L. Miller, for defendant.

Judgment affirmed.

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