text:
    8358.
    Richey v. Johnson.
    Decided September 19, 1917.
    Complaint; from city court of Jefferson — Judge Mahaffey. December 12, 1916.
    To an action on a promissory note the defendant filed at. the first (June) term a plea which was but a general denial of the several paragraphs of the petition. A demurrer to this plea was filed at the.same term, on the ground that it set up no legal'defense, amounted merely to the general issue, and was insufficient in law. No action on the demurrer was taken at the June term. At the September term the case was continued. At the December term the defendant offered an amendment to his plea, which was disallowed, and he excepted as follows: “Upon a demurrer being filed by the plaintiff in the above-stated case, at the first term, to the sufficiency of said plea, and heard at this term, but not being heard until an amendment to said plea had been offered, but not passed on, setting up a plea of recoupment or damages, then the plaintiff insisted on said demurrer being heard before allowing amendment, which said demurrer was sustained, and defendant’s plea stricken, and amendment disallowed. Pendente lite exception is hereby taken to said rulings of said court on allowing demurrer and disallowing amendment. The above amendment and demurrer were offered as above set out, and the ruling of the court was as above set out.” TJpon certifying to the foregoing the trial judge added this note: “Plaintiff’s counsel objected to the proposed amendment, on the ground that there was nothing to amend by, and that there was nothing in the original plea suggesting any legal defense whatever. The court was called on to .hear the demurrer and amendment at the same time.”
   Bloodworth, J.

1. Where both a plea and a demurrer thereto are filed at the. first term, and the record is silent as to any action being taken thereon at that term, it will be construed that the whole case, including the demurrer and plea, was “continued by the court”; and the demurrer thus continued loses none of its vitality by the fact that it was not “determined at the first term.”

2. Where suit is brought on a promissory note, and' the defendant in his plea makes a general denial of the paragraphs of the plaintiff’s petition, this denial in general terms is but a plea of the general issue, and, since the act of 1893 (Ga. L. 1893, p. 56), is not issuable and is not a denial of the plaintiff’s right of recovery under the sysrem of defenses provided by that act. Such a plea was properly stricken on . demurrer. Johnson v. Cobb, 100 Ga. 139 (2), 141 (28 S. E. 72); Civil Code (1910), § 5634; McMillan v. Fourth National Bank, 18 Ga. App. 445 (89 S. E. 635) ; Akers v. Decatur Street Bank, 16 Ga. App. 262 (2) (85 S. E. 201); Thomas v. Siesel, 2 Ga. App. 663 (58 S. E. 1131).

3. “The original plea having set up no defense whatever, an amendment, the purpose of which was to set up- a defense not indicated by or referred to in such plea, was properly rejected on the ground that there was nothing to amend by.” Smith v. First National Bank, 115 Ga. 608 (2) (41 S. E. 983).

(a) The instant case is easily distinguishable from the case of Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913). In that case no attack was made upon the plea at the appearance term, and the only objection-to allowing the amendment was that “there was nothing to amend by.” In this case demurrer was filed at the first term, and the amendment was objected to on the ground that “there was nothing to amend by, and that there was nothing in the original plea suggesting any legal defense whatever.”

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Judgment was rendered for the plaintiff for principal, interest, attorney’s fees, and costs; and defendant excepted.

E. G. Starh, for plaintiff in error.

Erwin, Bucher & Erwin, contra.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8363.
    Lisenby et al. v. Consolidated Grocery Co.
   Jenkins, J.

I. .The bill of exceptions, as amended, is not subject to the motion to dismiss, made on the ground that it fails to show proper parties as plaintiffs in error. Civil Code (1910), § 6184.

2. While the character and' sufficiency of the circumstances which would place a prudent man -upon his guard, so as to constitute notice, in purchasing negotiable paper, are to be determined as questions of fact by the jury, and not as questions of law by the court (Park v. Buxton, 10 Ga. App. 356, 73 S. E. 557),. still the evidence introduced for that purpose must have some actual probative value;. and thus, where a note sued on, as introduced in evidence, has the required revenue stamp properly affixed and cancelled, and the maker testifies merely that such stamping and cancellation were not done by himself at the time the note was executed,, but does not show that such was not his own or authorized act prior to its transfer, or that at the time of its assignment the purchaser of the note had knowledge of such' original deficiency, the circumstance sworn to could not in any wise tend to put the purchaser on notice of a possible defense to the obligation. 8 C. J. 514, note (h) ; Ebert v. Gitt, 95 Md. 186 (52 Atl. 900); Martindale v. Stotler, 80 Kan. 87 (101 Pac. 629). The direction of a verdict for plaintiff was therefore not erroneous.

Decided September 19, 1917.

Complaint; from Irwin superior court — Judge George. December 16, 1916.

Homer Oxford, for plaintiff in error.

McDonald & Bennett, contra.

Judgment affirmed.

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


text:
    8373.
    Rabun v. Commercial National Bank of Macon.
   Jenkins, J.

1. A promissory note payable to the order of the maker and properly indorsed by him is a negotiable instrument, and the holder is presumed to be such bona fide and for value. Civil Code (1910), § 4288; Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312); Wade v. Elliott, 11 Ga. App. 646 (75 S. E. 989); Rhodes v. Beall, 73 Ga. 641; Paris v. Moe, 60 Ga. 91; Bennett v. Gilmer, 15 Ga. App. 650 (84 S. E. 151). This presumption in favor of the holder of such an instrument is not overcome by proof made of the declarations of the payee thereof, whether made before or after its maturity, where, on the trial of an action brought by the holder, such declarations are admitted, even without objection, for the purpose of showing that the plaintiff had not in fact become the bona fide holder, for value, of the note before its maturity; it not further appearing that such declarations were made to the plaintiff, or that the latter had any knowledge thereof before acquiring title to the note. Harris v. Bank of Little Rock, 107 Ga. 407 (1), 409 (33 S. E. 404). Such testimony,, even though admitted without ohjeetion, is merely hearsay, and without probative value. Buttles v. Sewell, 117 Ga. 214, 216 (43 S. E. 486); Eastlick v. Southern Railway Co., 116 Ga. 48 (42 S. E. 499) ; Kemp v. Central of Georgia Railway Co., 122 Ga. 559 (2) (50 S. E. 465).

2. Under the foregoing rulings, there is no merit in the grounds of the motion for a new trial, except the one pertaining to attorney’s fees being allowed. Since the answer denied the allegation that notice for attorney’s fees was given, and no proof of the giving of such notice was made, it was error to direct a verdict including such fees. Cowart v. Bush, 142 Ga. 48 (82 S. E. 441); Turner v. Bank of Maysville, 13 Ga. App. 547 (79 S. E. 180). It is therefore ordered that the judgment of the court below be affirmed, with direction that the attorney’s fees included in the judgment be written off.

Decided September 19, 1917.

Complaint; from Calhoun superior court — Judge Cox. December 30, 1917.

B. W. F orison, for'plaintiff in error. Pope & Bennet, contra.

Judgment affirmed, with direction.

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


text:
    8385.
    Williams v. Garrison.
   Jenkins, J.

1. The provision of the statute of frauds which requires

that the promise to answer for the debt, default, or miscarriage of another must be in writing in order to bind the promisor does not include an original undertaking whereby a new promisor, for a valuable consideration, substitutes himself as the party who is to perform, and the original promisor is thereby released. Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921) ; Daniel Sons & Palmer Co. v. Dickey, 6 Ga. App. 548 (65 S. E. 301); Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430) ; Holcomb v. Mashburn, 10 Ga. App. 781, 783 (74 S. E. 307); Hicks v. Walker, 17 Ga. App. 391 (87 S. E. 152) ; Foote v. Reece, 17 Ga. App. 799 (88 S. E. 689) ; Ferst’s Sons & Co. v. Bank of Waycross, 111 Ga. 229, 232 (36 S. E. 773).

2. A verbal contract for services, which are to begin at a future date and continue for a period of a year, is void under the statute of frauds '(Civil Code (1910), § 3222 (5); Hudgins v. State, 126 Ga. 639, 643, 55 S. E. 492; Bentley v. Smith, 3 Ga. App. 242 (2), 59 S. E. 720) unless the party claiming its invalidity has accepted some benefit thereunder, to the loss or injury of the other party, by reason of such part performance of some act essential to the contract as would take it out of the operation of the statute. Bagwell v. Milam, 9 Ga. App. 315 (4) (71 S. E. 684). An advance of money under, the contract is sufficient to so operate. Brown v. State, 8 Ga. App. 211, 212 (68 S. E. 865). Thus, the plaintiff’s relinquishment in the defendant’s favor of his contract of employment with another, by the terms of which contract the laborer had agreed to apply a half of his wages in payment of a pre-existing debt owing by the laborer to the plaintiff, furnished a valid consideration, on which the assumption of such debt by defendant to plaintiff could be made. Especially is this true where it appears that the laborer did not himself repudiate his contract with the plaintiff, but, according to the evidence, offered to return and carry out the contract, in the event that an agreement was not had in reference thereto between the plaintiff and the defendant. .

3. Where, for a .valuable consideration, such an original undertaking is entered upon.by the new promisor, the fact that in so doing he agreed to execute notes in settlement of the debt, .which he fails and refuses to do, would not operate to relieve sueli promisor from his obligation, .but upon such default he becomes liable for the debt so assumed, in the manner and to the extent of his agreement.

Decided September 19, 1917.

Complaint; from Telfair superior court — Judge Highsmith presiding. December 6, 1916.

W. S. Mann, for plaintiff.

L. 0. Harrell, Hschol Graham, for defendant.

4. Under the evidence as submitted by the plaintiff, the grant of the defendant’s motion to'nonsuit was error.

Judgment reversed.

Broyles, P. J., and Bloodioorth, J., concur.


text:
    8426.
    Hill v. Armour Fertilizer Works.
   Jenkins, J.

2. Where one submits to another a contract of employment, whereby the former agrees to ship goods to the other as his salesman on commission, with the stipulation that the latter is to guarantee the purchase-price of all goods shipped, by giving to the employer his note in the amount of the purchase price thereof, and where the agreement contains a provision that it is made subject to the approval of the home office of the employer, the contract does not ordinarily become operative until the condition as to acceptance has been complied with. But where, without notice of such formal acceptance, the salesman and guarantor proceeds to order out goods under the contract, and the goods are shipped by the employer as directed, and the note covering and guaranteeing the purchase price as provided by the contract, is actually made and delivered, the contract of guaranty will be considered .as complete and executed, and, upon a suit upon the note so given, the maker will not be permitted to avoid the same by reason of the- employer’s failure to furnish the formal notice of acceptance under the original contract.

Decided September 19, 1917.

Complaint; from city court of Asbburn — Judge Tipton. December 24, 1916.

A. 8. Bussey, for plaintiff in error.

W. T. Williams, John B. Hutcheson, contra.

3. The fact that a portion of the amount covered hy the' note represented the purchase-price of goods sold by the agent to persons residing beyond the limits of the territory contemplated by the contract of employment should not be held as constituting a valid defense is such a suit.

4. The evidence complained of in the 4th and 5th grounds of the motion for a new trial was not irrelevant, in view of the defense made under the amended plea of the defendant.

5. The admissions made by the plaintiif in the trial of the former case, relative to the amount due on the note now sued on, while admissible in evidence against him in the subsequent suit, are not absolutely binding and conclusive against him; and the evidence given in the present - suit being sufficient to disprove, rebut, or explain the same, and to authorize the verdict now rendered, the verdict will not be disturbed. Luther v. Clay, 100 Ga. 236 (3.) (28 S. E. 46, 39 L. R. A. 95) ; King v. Shepard, 105 Ga. 473 (30 S. E. 634).

Judgment affirmed.

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


author: Jenkins,- J.

text:
    8553.
    Knight v. Northey.
   Jenkins,- J.

1. There was evidence to authorize the recovery by the plaintiif of the property sued for in trover, and also to warrant the verdict for its hire. See Woods v. McCall, 67 Ga. 506 (2), 507.

(a) Reviewing courts will not consider an assignment of error upon a verdict, on the ground that it is “grossly excessive,” unless it is made to appear that the verdict was due to prejudice and bias, or gross mistake, on the part of the jury. No such grounds appearing, and the trial judge having approved the finding of the jury in this particular, his discretion will not be controlled: Seaboard Air-Line Railway v. Miller, 5 Ga. App. 402 (1), 405, 406 (63 S. E. 299); McCaulla v. Murphey, 86 Ga. 475, 476 (2, 5), 480 (12 S. E. 655). See also Civil Code, §§ 4483, 4514, 5930.

2. The excerpts from the charge of the court which are assigned as error are mere fragments of sentences, and when read with their context, and in' the light of the entire charge, are not erroneous for any of the reasons assigned, and, under the pleadings and the evidence, even as isolated in the exceptions, contain no reversible error.

3. The assignment of error in ground 5 of the motion for a new trial is without merit, especially since no objection was made or exception taken to the question propounded by the trial judge, nor a ruling invoked thereon.

Decided September 19, 1917.

Trover; from city court of Cartersville — Judge Moon. December 12, 1917.

James R. Whitaker, A. W. Fite, R. R. Arnold, for plaintiff in error. G. G. Pittman, contra.

4. Grounds of a motion for a new trial, which complain that the court did not charge certain propositions of law that he should have given in charge, but which do not show that his attention was especially called to these questions, ordinarily present no issue upon which this court can pass (Higgins v. Cherokee Railroad, 73 Ga. 149 (1)), and, no request so to charge having been made in this ease, the assignment of error upon the omission of the court to charge a principle of law, as set forth in ground 6 of the motion for a new trial, is without merit.

5. The alleged newly discovered evidence, the basis of ground 7 of the motion for a new trial, being wholly cumulative and impeaching in character, affords no ground for a new trial. Civil Code (1910), §§ 6085, 6086.

6. Ground 8 of the motion for a new trial is without merit. The jury returned a verdict “for the' plaintiff,” add further, “$5 per month for eight months,” for hire. Under the pleadings and the evidence this was sufficiently certain to make valid the judgment entered thereon. See, in this connection, Spence v. Holman, 30 Ga. 646.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    8643.
    John Silvey & Co. v. Coleman Brothers & Co.
    Decided September 19, 1917.
    Complaint; from Emanuel superior court — Judge Hardeman. November 7, 1916.

      Williams & Bradley, Dorsey, Shelton & Dorsey, for plaintiff.

      T. N. Brown, for defendants.
   Bloodworth, J.

The excerpts from the charge which were complained of are not erroneous when read in connection with the entire charge. There was some evidence to support the verdict; and under repeated rulings of this court, it will not interfere with a verdict approved by the presiding judge, where no error of law was committed on the trial.

Judgment affirmed.

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


author: BloodwOrth, J.

text:
    8674.
    Melson v. Hightower Mercantile Company.
    Decided September 19, 1917.
    Mortgage foreclosure; from Heard superior court — Judge E. W. Freeman. December 26, 1916.

      D. B. Whitaker, for plaintiff in error. W. G. Wright, contra.
   BloodwOrth, J.

The special grounds of the motion for a new trial are without merit; there is evidence to support the verdict, and the judgment is

Affirmed.

Broyles, P. J., and Jenkins, J., eoneur.


author: Broyles, P. J.

text:
    8713.
    Peterson v. McAllister, administratrix.
    Decided September 19, 1917.
    Complaint; from city court of Fort Gaines — Judge Turnip-seed. February 13, 1917.

      E. R. King, L. M. Rambo, for plaintiff in error.

      Zach. Arnold, A. L. Miller, contra.
   Broyles, P. J.

1. When considered in the light of the entire charge of the court and of the facts of the case, the instructions complained of contain no error.

2. So much of the requested instructions as was legal and pertinent was sufficiently covered by the charge of the court.

3. The verdict was authorized by the evidence, and the court did not err ' in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworth, JJ., eoneur.


author: Luke, J.

text:
    8838.
    Jones v. The State.
    Decided September 24, 1917.
    Accusation of keeping lewd house; from city court of Dublin— Judge Flynt. April 19, 1917.

      J. E. Burch, T. W. Evans, for plaintiff in error.

      8. P. New, solicitor, contra.
   Luke, J.

It appearing, from the evidence, that in a cellar underneath the the trial judge, after hearing evidence on the ground of the motion "for a new trial in which the competency of a juror was challenged on account of alleged newly discovered facts tending to show bias, did ri'ot err in overruling that ground, as well as the other grounds of the motion. Redfearn v. Thompson, 10 Ga. App. 550 (4) (73 S. E. 949).

Judgment affirmed.

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


text:
    8876.
    Harvey v. The State.
    Decided September 24, 1917.
    Indictment for misdemeanor; from Habersham superior court— Judge J. B. Jones. April 14, 1917.

      J. J. & Sam Kimsey, J. G. Edwards & Sons, for plaintiff in error. Robert McMillan, solicitor-general, contra.
   Luke, J.

1. The evidence in this case, though weak, authorized the eon- ' viction of the accused.

2. There is no such merit in the assignments of error as requires a new trial of this case.

Judgment affirmed.

Wade, O. J., and George, J., eoneur.


text:
    8885.
    Sheppard v. The State.
    Decided September 24, 1917.
    Accusation of larceny from the person; from city court of Carrollton — Judge Beall. April 21, 1917.- ■

      Emmett Smith, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Luke, J.

The evidence upon which the accused was convicted was wholly circumstantial, and the proved facts were not sufficient to exclude every other reasonable supposition than that of the guilt of the accused. The verdict,, being without evidence to support it, was contrary to law, and the court erred in overruling the motion for a new trial. cannon v. State, 12 Ga. App. 637 (77 S. E. 920) ; Belmas v. State, 12 Ga. App. 363 (77. S. E. 188).

Judgment reversed.

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


text:
    8913.
    Cole v. The State.
    Decided September 24, 1917.
   Luke, J.

It appearing, from the evidence, that in a cellar underneath the defendant’s house there was found about sixty gallons of beer, and on the window-sill there was found fresh beer spilled, and along the path leading from the cellar window to where an illicit still was in operation, on the premises of defendant, there were also signs of beer having been spilled, it was not error for the court to overrule a motion for a new trial upon the general grounds complaining of the conviction of the defendant upon an indictment charging him with manufacturing alcoholic, spirituous, and intoxicating liquors.

Judgment affirmed.

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

Indictment for making intoxicating liquor; from Paulding superior court-^Judge Bartlett. April 14, 1917.

C. D. McGregor, for plaintiff in error.

J. B. Hutcheson, solicitor-general, contra.


author: Ltjke, J.

text:
    8924.
    Levister v. The State.
    Decided September 24, 1917.
    Indictment for burglary; from Morgan superior court — Judge Park. May 7, 1917.

      Williford & Lambert, for plaintiff in error.

      Hoyle Campbell, solicitor-general, contra.
   Ltjke, J.

“To sustain a conviction [in a felony case] upon the testimony of an accomplice, there must be corroborating circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to inference that he is guilty.” Stokes v. State, 19 Ga. App. 235 (91 S. E. 271). The evidence offered to corroborate the testimony of the accomplice did not directly connect the accused with the crime, and therefore it was error to overrule the motion for a new trial.

Judgment reversed.

Wade, O. J., and George, J., eoneur.


author: Wade, C. J. Luke, J.,

text:
    8101.
    WESTERN & ATLANTIC RAILROAD CO. v. JACKSON.
    1. Where a female passenger about 60 years old was carried by a railroad-train past a flag station which was her destination, through the negligence of the conductor in charge of the train, in failing to stop the train at that place, and the conductor, when the train stopped at the next station, said to her that he would have a conveyance to take her from there to her home, and she then left the train and he requested a telegraph operator of the railroad company at that station to hire a conveyance and send her to her home, and the telegraph operator engaged a young man about 21 years old to convey her in a buggy to her home, about two miles distant, and on the way the driver made improper proposals to her, the driver could not be held to be an agent of the railroad company, in the absence of' any evidence that would authorize the jury to find that either the conductor or the telegraph operator was specially authorized to employ a subagent, or was acting within the scope of his authority in engaging the driver; nor was the injury to the feelings of the person insulted by the driver a proximate result of the breach' of the railroad company’s contract of carriage.

      2. Even if it be conceded that both the conductor and the telegraph operator were charged generally with the duty of providing for the safety of the passenger at the station, and that therefore the carrier would be responsible if there was negligence on their part in entrusting her to a drunken or dissolute man, there was no evidence to support the inference that when the driver was engaged to transport her to her home, either the telegraph operator or the conductor knew anything whatever derogatory to his character or habits; but, on the contrary, the undisputed evidence showed that the employee who engaged his services knew him to be a man of previously unblemished reputation, and had no reason even to suspect that he was a drinking man or had been recently imbibing intoxicants, or to anticipate (in the light of his reputation and apparent condition) that he would be capable of insulting an elderly woman entrusted to his care. Therefore no recovery against the railroad company on this theory was authorized.
    3. While a recovery of nominal damages would have been proper under the evidence, the verdict for $1,000 was unauthorized; and the trial judge erred in overruling the motion for a new trial.
    Decided September 27, 1917.
    Action for damages; from Bartow superior court — Judge Fite. March 27, 1916.
    Mrs. Malinda Jackson sued the Western & Atlantic Bailroad Company, alleging that on September 5, 1914, she boarded its passenger-train at a point called Ateo in the county of Bartow, and informed the conductor in charge of the train that she wished to leave the train at Cave, another station, and paid the fare to that point; that the train did not stop at Cave, but, without slackening its speed, ran by that station to Kingston, in the same county, and about two miles beyond her destination; that after passing Cave she did not see the conductor until just before the train reached Kingston, when she reminded him that she had been carried beyond her destination, whereupon the conductor told her he had forgotten “that she was to get off at Cave, and assured her that he would procure a conveyance at Kingston for her return to Cave.” She further alleged: “that on his arrival in Kingston said conductor instructed the employees of the defendant company at that place to procure a conveyance for petitioner and to send her back to Cave; that said employees (petitioner does not know their names) did procure a horse and buggy, with Moses Darden as driver, and that one of said employees placed her in said buggy with said Darden;” that it was 7:30 o’clock p. m. and was dark when she arrived at Kingston; that soon after she left Kingston in the buggy with Darden she noticed that he was drunk, and oh the road, between Kingston and Cave he made indecent proposals and repeated requests that she have sexual intercourse with him;-that on account of his indecent language and proposals she became greatly frightened and begged him to permit her to alight from the buggy in the night and proceed to Cave on foot, ■but he refused to allow her to alight, and she finally reached her destination, not earlier than 8 o’clock. She alleged that the defendant was negligent: “ (a) in failing to stop said train at Cave and allowing petitioner sufficient time to alight therefrom; (b) in .carrying petitioner beyond Cave, her destination; (c) in procuring an incompetent, drunken servant to carry her from Kingston to Cave; (d) in making, through said Darden, indecent proposals to petitioner, grossly and wantonly insulting her and humiliating her; all to the injury and damage of petitioner in the sum of ten thousand dollars aforesaid.” She prayed for a judgment for that 'amount.
    The defendant demurred to the last clause of paragraph 5 of the plaintiff’s petition setting forth that the conductor “assured her [the plaintiff] that he would procure a conveyance at Kingsston for her return to Cave,” and to those paragraphs of the petition setting forth the conduct of the conductor and the other employees of the defendant company and the insulting conduct of Darden on the road from Kingston to Cave, and also to subdivisions c and d above quoted, alleging negligence in that the defendant had procured an incompetent and drunken servant to carry her from Kingston to Cave, and in making through him indecent proposals; and for cause of demurrer the defendant insisted that the averments of these paragraphs and parts of paragraphs “showed no cause of action against the defendant,” for various reasons thereinafter set forth in subdivisions a, b, c, d, and '/ of the demurrer, including the contentions that neither the conductor nor the unnamed employee appeared, from the allegations in the petition, to have had any authority to engage Darden, or to have acted within the scope of his ^authority in engaging him, and that Darden’s conduct was not a proximate result of the negligence of the defendant in carrying the plaintiff beyond her stopping place.- The plaintiff amended by striking from the petition subsections c and d, referred to in the demurrer and quoted above, and thereupon the defendant renewed its demurrer to the last clause of paragraph 5 and to the other paragraphs objected to, and further insisted that, in view of the withdrawal of the said subsections c and d, alleging negligence upon the grounds therein mentioned, the plaintiff thereby abandoned the allegations in said paragraphs as to the conduct of the employees of the defendant in engaging Darden to convey her to Cave, and as to the conduct of Darden while on the way from Kingston to Cave, and therefore the' said allegations were irrelevant and immaterial and were not shown to be any part of the cause of action against the defendant, and should for this reason be stricken. The demurrer and the amended demurrer were overruled, and the defendant thereupon filed exceptions pendente lite. The case proceeded to trial, and the allegations made in the petition were supported .by the testimony of the plaintiff, and the trial resulted in a verdict for $1,000 in her favor.
    According to the plaintiff’s testimony (without reviewing such portions as are unnecessary for the determination of this ease), when she told the conductor that he had conveyed her beyond her destination, he said he would make arrangements at a stable at Kingston to have her carried home from that place, and she suggested that a gentle horse be secured, as she was “scared of stock,” and “then they went and drove up there with a mule and buggy, and this man that staid at the depot [italics ours], he calls to him [Darden] and says ‘There is this lady for you;’ and he went on with me to the buggy and hope [helped] me in, and says this man will carry you home.” She further testified, that she had never before seen the man that was driving the buggy, and did not know his name. “The depot agent took me out there and helped me in the buggy. Yes, sir, that was the telegraph operator [italics ours], the man that worked around there for the railroad at the depot.” She testified that on the way to her home the defendant made improper proposals to her, indicating that he wished to have sexual intercourse with her, and she tried to get out of the buggy, but he prevented her from doing so, and when they reached her home she went into the house, and Darden remained outside in the'buggy, talking to her husband and her son-in-law, until she came out of the house and told them to stop talking to him and come in the house, and thereupon “Darden left in a hurry.” She testified that she would soon be 61 years of age, and was the mother of 13 children, 11 o£ whom were living, the eldest being 43 years of age. Her husband testified that his wife came home in a buggy with Darden, that she got out of the buggy and went into the house, that Darden then spoke to him and inquired if he was Mr. Jackson, and upon his answering “Yes,” said he wanted to see him for a minute, that he went out where Darden was, and as soon as he came to the buggy, “right up- against the wheels of the buggy,” he smelled whisky, and that after he had been talking to Darden for a few minutes his wife came out on the porch and told him “not to stand there and talk to that thing, he wasn’t fit for anybody to talk to; and he just took the lines and whirled his mule and went away from there.”
    A number of witnesses testified that they had been acquainted with Darden during the entire 21 years of his life, or for many years, and that his previous reputation in the community where he lived, for politeness, decency, and gentlemanly conduct towards women, was good, and that they had never heard that he was a drunkard or even a drinking man, though two or three of them said that he did take a drink occasionally. Darden himself testified that he was 21 years old and had lived in and around Kingston all his life, and that on the night in question Mr. Broadwater, the night telegraph operator at Kingston, employed him to carry the plaintiff to her home, at about 7:30 p. m.; that he had indulged in two or three drinks of whisky between the arrival of train No. 1 at 5:30 p. m. and the hour of 7:30 p. m.,— “three drinks, moderate size drinks,” but was not drunk and felt the effects of the liquor “very little;”.that while on the road he made no improper remarks to the plaintiff and no indecent proposals, as she gave him no “room to say anything to her,” and he certainly would not “have said anything to her, on. account of her age, if nothing else,” and that he had never seen or even heard of her before; that she did not try to leave the buggy, and said nothing about getting out of the buggy; that there were “a good many houses along that road,” and in his opinion one could not go 400 yards along any part of the two miles without passing a house; that he reached her home within 20 or 30 minutes, and she got out of the buggy and went into the house; that he had some conversation with her husband and sought to buy. some smoking tobacco from a little commissary in the yard, whereupon the plaintiffs son-in-law, Couch, came out of the house, approached the buggy, and told him they would sell him nothing, and ordered him to get out of the yard; that he asked Couch to explain what he meant, but Couch repeated his order to leave, and he drove off without being told why he was ordered to go; that when the plaintiff came back out of the house she said something, just as he was turning his buggy around, but he did not understand what she said. He testified that the plaintiff conversed with him on the way out to her home, and seemed “to be pretty mad about the conductor overlooking her,” and said she was going to sue the road and “they would pay for it, pay her for putting her off two miles from her destination.” Darden admitted that he had been convicted on a criminal charge growing out of this alleged occurrence, and stated that, though his attorney had filed a motion for a new trial, he paid a fine of $45 after some months, as he did not “wish to be embarrassed before the court.”
    The conductor, Adams, testified, that when he discovered that he had carried the plaintiff beyond her destination he proposed to send her back in a buggy from Kingston, if this would be satisfactory to her, and that she agreed to this, and when the train reached Kingston he “stepped up to the young man that worked there [italics ours] and asked him would he get somebody to carry her down there [back to Cave], and he said he would get somebody before I left Kingston. He said he would see that the lady got carried back in a buggy. He says,- ‘You go on, I will get her back;’ and I says, ‘Whatever the bill is I will pay it when I come back the next morning;’ and the next morning I come back and I said, ‘You got her back all right, did you?’ He said, ‘Yes, everything is all right;’ and I asked him what it was, and he said $1.25, and I -pulled it out and paid it. I did that to get the old lady back home.” The flagman testified as to the mistake in carrying the passenger by her destination, and corroborated the conductor as to the conversation between him and the plaintiff. Broadwater testified, that he employed Darden to take the plaintiff from Kingston to her home for $1.25, and went back to the depot and told her that he had a way for her to get back home, and escorted her to the buggy and helped her in. He further testified: “Mose Darden was not drunk that I could see. If he was drinking I could not smell his breath. I never went up to examine him to see if he was drinking. I suppose if he was drinking I could have told it. I did not notice anything like that at all. No, sir, he appeared to be sober and all right, just dike he is to-day.” He testified that'he “had been living around Kingston for twenty years,” and was acquainted with Darden and with Darden’s general reputation, and “He is just as nice a boy as I know of around that place.” He further said: “I don’t know that he drinks some. I never have seen him drunk. I don’t know whether he does drink whisky or not. I have not seen him drink any, and haven’t known of his drinking whisky, and never heard of his drinking it.” He said, that he was the telegraph operator for the Western and Atlantic Railroad Company at Kingston, and was operator there at the time of the occurrence complained of by the plaintiff; that he went on duty at II o’clock at night, and just “happened” to be at the depot when the train arrived on the occasion in question, and had been there only a short time, perhaps 10 or 15 minutes, when the train came; that Espey was the express agent at Kingston, and he did not know that Espey waited that day to deliver liquor that came on train No. 1, which' arrived Before the train upon which the plaintiff was a passenger. He said that Darden charged $1.25 to carry the plaintiff home, and he told Darden the conductor would pay it, “that the conductor would do what was right. I told him I would guarantee the pay, the conductor said he would pay me the next.morning. He [Darden] said he would charge $1.25, and I said, ‘All right.”’ Darden, when recalled by.the plaintiff, said he did not remember “who got the shipment of liquor that afternoon on No. 1. It was mine, and I guess it was shipped to me.”

      Tye, Peeples & Tye, Neel & Neel, for plaintiff in error.

      Colquitt & Conyers, William T. Townsend, contra.
   Wade, C. J.

(After stating the foregoing facts.)

1. It will be observed that the plaintiff’s cause- of action as finally amended is broadly grounded upon the proposition that when she became a passenger and paid her fare to a given point, it was the duty of the defendant • company to stop the train at her destination a sufficient length of time to allow her to leave it with safety to her life and person; and that if the plaintiff was carried beyond her stopping place by no fault of hers, but by the failure of the defendant company’s conductor and agent to do his duly in that respect, she might recover for any resulting damage. It is insisted, that the insulting language and conduct of Darden, ■which mortified, shocked, and humiliated her, was a direct proximate result of the failure of the defendant company to convey her to her' destination, or to afford her an opportunity to alight there in safety, and that therefore the jury were authorized to find damages in an amount sufficient to salve the injury to her wounded feelings.

It is unnecessary to say that for the breach of its duty to afford the passenger an opportunity to alight in safety at her destination, the plaintiff could have- recovered damages for the injuries directly resulting therefrom. In Burnett v. Rome Railway & Light Co., 7 Ga. App. 323 (66 S. E. 803), the petition alleged that the plaintiff was an old lady, unacquainted with the streets or their condition in the city of Eome, where the defendant operated a line of street-cars, and that she contracted with the conductor, in consideration of a fare of five cents, to convey her as a passenger from the point where she entered the car to “Cherokee street in south Eome; that the conductor failed to comply with his contract” to carry her to Cherokee street, but put her off at East Third street, and gave her a transfer which compelled her to walk a quarter of a mile to another car, and in going to this car she fell and dislocated and broke her hip; that if she had known that she could not be carried by the street-car to south Eome without having to walk this distance, on account of her age, infirmity, and defective eyesight, she would have employed some other means of conveyance, and would not have attempted to get on the ear. This court said: “No direct connection between the defendant and the fall is alleged. The plaintiff sues for the personal injury received through the fall. Held, that the defendant’s wrong, if any, was not the proximate cause of the injury; that the petition does not state a cause of action; and that it was properly dismissed on demurrer.” Again, in Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719 (42 S. E. 1024), it was said: “Damages traceable in some • measure to a tortious act, but resulting chiefly from other and , contingent circumstances, and not the, legal or natural consequence of the act, aré too remote to be the basis of recovery against the wrongdoer. It follows that where a female, passenger on a railroad-train was carried beyond her station, and the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend in that town, she should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company had notice of this [italics ours].” Wh ether alleged negligence is the proximate cause of an injury is generally a question for the jury, but where the undisputed evidence clearly shows that the injury complained of was not the natural or proximate result of the defendant’s conduct, negligence, or breach of duty, but resulted through an intervening agency, not invoked or brought into play by the defendant, no recovery would be authorized on this ground.

In the case of Central of Georgia Ry. Co. v. Price, 106 Ga. 176 (32 S. E. 77, 43 L. R. A. 402, 71 Am. St. R. 246), it was held: “Where, through the negligence of the conductor of a railway company, a passenger on its cars has been carried beyond the point of her destination, such conductor, in the absence of express authority so to do, can not constitute the proprietor of a hotel, who is entirely unconnected with the company, its agent for the purpose of providing safe and comfortable lodgings for the passenger until she can return on the company’s train to her destination. It follows, therefore, that the company is not liable for any injuries or damage such passenger may have sustained while at the hotel, in consequence of any negligence on the part of its proprietor.” That case on its facts is closely akin to the case under consideration, so far as relates to the contention that the conduct of Darden was a proximate result of the breach of the contract of carriage on the part of the railroad company for which a recovery was authorized. The Supreme Court there held, that while a conductor on a passenger-train of a railway company was the agent of the company and the company was bound by all of his acts within the scope of his employment, his business was to superintend the running of the train and to look after the comfort and safety of the passengers, and “do such other work, in and about the running of the train, as is imposed upon him by the rules of the company or by law;” but, “being only an agent, he had no authority, without express power conferred by the company, to appoint a sub-agent. He could not delegate to another, an agent of his own appointment, the powers conferred upon him. Civil Code [of 1895], § 2999 [Civil Code of 1910, § 3571]. It was not within the scope of his business to constitute the proprietor of a hotel the agent of the company for the purpose of taking care of the plaintiff during the night.” In that case the Supreme Court said it was argued (as it was in this case) that “Whether or not the proprietor of the hotel was the agent of the company, the contract of.carriage was not completed, and it was the duty of the company, by its agents, safely to care for the passenger until they had delivered her at her destination.” As to this the court said: “Admitting, for-the sake of the argument, that this is true, we still think that the company would not be liable for the consequences of the landlord’s negligence. -The negligence of the company consisted in passing the station where the passenger desired to alight, without giving her an opportunity to get off. Taking her version of the manner in which she was injured, the injury was occasioned by the negligence of the proprietor of the hotel or his servants in giving her a defective lamp. The negligence' of the company in passing her station was, therefore, not the natural and proximate cause of her injury. There was the interposition of a separate, independent agency, the negligence of the proprietor of the hotel, over whom, as we have shown, the railroad company neither had nor exercised any control.”

The decision in that case likewise definitely holds that a conductor entrusted with the running of a train and with the duty of earing for the passengers thereon is without authority to engage subagents to care for such passengers when no longer upon his train. It is alleged in the petition in this case that an employee of the defendant, other than the conductor, at his instance and request engaged the driver who conveyed the plaintiff to her home ; and evidence was introduced to show that the driver, Darden, was in fact engaged by another' employee or “agent” of the company, who possessed authority to bind the company, and that this agent had knowledge, at the time he contracted with Darden, that the latter was a man of no character, was then drinking or drunk, and had actually received whisky at the station where this agent was employed on that very day, with the constructive knowledge, at least, of said employee. While it may be true that an agent of the defendant, actually in charge of its station, and burdened with the responsibility in some measure of caring for passengers there leaving its trains or taking passage thereon, might have authority ■under some circumstances to bind the railroad company by contracts made in an effort to provide for the safety and comfort of such passengers, in our opinion the positive, uneontradicted evidence, in "this case shows that Broadwater, the person who engaged Darden to convey the plaintiff to her home, was not in fact such an agent of the defendant at Kingston, nor was he (so far as is disclosed by the evidence) in charge of the depot, waiting-room, etc., or specially authorized or empowered to look after passengers or care for their comfort and safety at that point, but was merely a night telegraph operator, who happened to be idling at the depot, and was not even on duty when he contracted with Darden. Mrs. Jackson said that “this man that stayed at the depot” put her in charge of Darden; and, while she stated further on that the “depot agent,” helped her into the buggy, she added “that was the telegraph operator, the man that worked around there at the depot.” Darden testified that Broadwater was the “night operator at Kingston,” and, while Adams, the conductor, said that he arranged with “the young man that worked there” to have the plaintiff conveyed to her home, Broadwater himself said positively that he “worked there” as telegraph operator and went on duty as such operator “at 11 o’clock at night.” It is apparent, therefore, that under this proof Broadwater was not an agent in general charge of the station 'at Kingston, and in fact there was other testimony that one Cliff was the depot agent there, and certainly it can not be assumed that the “night operator,” in charge of the telegraph instrument and upon whom perhaps devolved some other minor duties, was such an agent of the defendant company as, in the absence of proof of any special powers, would be invested with broader authority than the conductor to employ a subagent for the company, or that he would himself be acting within the scope of his employment in taking charge of the continued transportation of a passenger by private conveyance from the station where he worked to her home in the country, or was even necessarily authorized to make arrangements for the comfort and safety of passengers at the station itself, where his ordi- .. nary work of an entirely different character was to be performed. The rule laid down in the Price case, supra, that a conductor would have no authority to employ a subagent, to act for the railroad company in caring for a passenger, would certainly apply equally to a telegraph operator in the service of such company. It is therefore clear that no recovery for the acts or conduct of Darden could be had against the defendant on the theory that he was a duly empowered agent of the defendant; and, as was held in that case, the negligence on the part of the company in passing her station was not the natural and proximate cause of her injury, for the injury was occasioned by. the interposition of a. separate, independent agency, to wit, the conduct of Darden, over whom the railroad company neither had nor exercised any control, and no recovery for the conduct of Darden would be authorized because of the breach of the contract of carriage, in failing to convey her in safety to her destination.

3. In Central of Georgia Ry. Co. v. Dorsey, supra, where a female passenger was carried beyond her station, ánd the train stopped near the next station, and the passenger walked at night and without escort through the town to the house of a friend, it was held: “She should not be allowed to show that she was frightened by hearing loud voices of negro men who were walking behind her, unless it is also made to appear that the locality was one in which such occasion for fright was likely to occur and that the railroad company had notice of this.” The uncontradicted evidence in the case under consideration entirely removes any suggestion of notice to the agent of the railroad company that'injury or danger might result to the plaintiff by placing her in Darden’s care, and therefore no recovery would be authorized, under the principle referred to in the above ruling of the Supreme Court, on account of a breach of the general duty resting upon the employees of the carrier to properly safeguard a passenger under their charge, or at all events not to deliberately place her in a position which they knew, or could have known by the exercise of proper care, was one from which wrong or injury to her might naturally be expected to result. If it be conceded that the proof as a whole might in any possible view have authorized the jury to infer that Broadwater was the agent in charge of the station at Kingston, and; though not authorized as such agent to employ a subagent, for and in béhalf of his company, to convey a passenger from the station to her proper destination, under the precise circumstances of this case, that nevertheless the carrier would be liable for his acts in not only failing to provide for the safety of a passenger leaving one of its trains at his station, but in deliberately and with knowledge- (actual or potential) placing her in a position where it might reasonably and naturally be expected she would be subjected to insults or even to personal danger, there is no evidence in the record to authorize a finding that he was in any degree negligent, in that he failed to exercise ordinary or even extraordinary care in engaging Darden to convey the plaintiff to her home, or in failing to anticipate and guard against what followed. The undisputed evidence of several witnesses was that Darden was a young man of hitherto unblemished reputation, generally polite to ladies, and not a drunkard, or even, in common parlance, “a drinking man,” though some witnesses other than the night operator testified he sometimes took a drink, and he himself admitted that upon this particular occasion he had imbibed three “moderate” drinks 'during the afternoon, between 5:30 and 7:30 p. m., or within an hour or so of the time when he. undertook to convey the plaintiff to her home.

It is true there was testimony that a shipment of liquor came to Kingston that very day on an earlier train of the defendant, which was addressed to Darden, but it was not shown that Darden himself actually received this shipment that day, and Broadwater was not the express agent and had no actual or constructive knowledge of this fact. Broadwater not only asserted that he was unaware that Darden ever drank at all, but said that Darden appeared perfectly sober when he engaged him, and he detected at that time no odor of whisky upon or about his person, and saw nothing whatever in his appearance or conduct to arouse the suspicion that he was not his usual self. Furthermore, as demonstrating his extraordinary care in selecting one he believed and had reason to believe was a proper person, he said he had himself known Darden personally for a long time, and had always considered him as reputable and decent a young man, “or as nice a boy,” as there was in the community. He not only did not carelessly entrust the plaintiff to a stranger or to one of doubtful reputation or antecedents, but-sought out and procured a man whom he had known for many years and had every reason to believe from his general reputation was a man of established good character. No witness asserted any fact whatever, which was shown to be within the knowledge of Broadwater at any time prior to his employment of Darden, that could have possibly put him on notice that Darden was by nature or character an unfit person, or was at the time in an unfit condition to safely and respectfully convey an old lady a distance of two miles from the station, through a little town and along a public highway traversing a thickly settled country, early in the evening, when the shades of night had barely descended and the presence of other travelers along the same road might reasonably be expected. v

It is true that Mrs. Jackson said she smelt whisky on Darden while on the way, and her husband likewise said that he noticed the same odor on or about him after the plaintiff reached her home and entered the house, when he himself came quite close to Darden or “walked right up against the wheels of the buggy” in which Darden was sitting. -However, the fact that an odor of whisky emanated from Darden on the road, or after he reached the home of the plaintiff, does not necessarily show that any odor of that character hung around him or was discoverable to even the keenest olfactory nerves at the time Broadwater engaged him as a 'driver, or that he was then in the slightest degree perceptibly under the influence of liquor. Even the plaintiff failed to detect any such odor until some minutes after she had been seated by his side in the huggy, and both she and her husband may have come into much closer proximity to Darden than did Broadwater, and we can not hold as a matter of law that the exercise of even extraordinary diligence on the part of the latter would have required him to sniff Darden’s breath at close range, to determine whether there might perchance be some alcoholic stimulant in his stomach, before putting the plaintiff in his charge. He testified positively that he did not know Darden ever drank, that Darden showed no signs of intoxication and appeared to be his usual self, and, in the absence of anything to the contrary, there is nothing from which it may be inferred that he was guilty of negligence in selecting Darden and entrusting the plaintiff to his care. Though Mrs. Jackson declared that Darden was under the influence of whisky while on the way from Kingston to her home (as already stated), she did not discover that he had ¡been drinking at all until after she was seated in the buggy with him, and they had proceeded “about half through the town,” when she noticed a very strong odor of whisky. And on cross-examination she further said: “I didn’t pay no attention to smelling whisky on him until after I got in the buggy and going on down the road just passing stores out there at the far end of the stores when I first noticed it, and it was just after that when he made the improper proposals to me.” In fact there is nothing in her testimony, apart from the odor of whisky (which she failed to discover until she had been seated in the buggy with him for a considerable time) to indicate or even suggest to her that Darden was either drunk or drinking, until he grossly insulted her, and no previous language or conduct on his part is shown by her testimony, or by the testimony of any •other witness, that could apparently have indicated to Broads water, or to any other observer that he was either drunk or had been drinking.

There was nothing to put Broadwater on notice that Darden was not entirely sober and rational, and therefore not a safe person to whom the plaintiff could be entrusted; and there was nothing shown which could reasonably lead him to anticipate that Darden, sober and clothed in his right mind, so far as Broadwater did or could discover, would gratuitously insult an elderly woman placed .in his care, whom he had never seen or heard of before, during a short drive of two miles, on a public highway and through a well nettled country, where a call for assistance would probably bring a ready response at any point along'the way. The testimony shows that the plaintiff was more than 60 'years-of age at the time, and .had borne 13 children, 11 of whom were still living and one of whom was over 40 years of age;‘ and that Darden was only 21 .years old, had always borne an excellent reputation in the community in which he lived, and this reputation was known to Broadwater. Certainly Broadwater could not have even imagined under these circumstances that such a man, hardly more than a .boy, whom he had no reason to suspect was otherwise than sober and rational at the time, would propose sexual intercourse with a woman old enough to be his grandmother, and who was in fact a grandmother, whom he had never seen or heard of before. The thing was unnatural, and certainly it is unbelievable that a boy of his previous good reputation could have been guilty of so foul an outrage against decency and womanhood, or could show so little respect for age, unless he was altogether distraught and wholly unbalanced at the-time from the effects of some powerful drug or maddening intoxicant. This is especially so when it is recalled that after he had repeatedly insulted the plaintiff, and she had clearly indicated her extreme displeasure on that account, he nevertheless accompanied her to her very home itself, and that when she left his buggy and 'entered her house he.actually remained of his own volition in the presence of her husband, and engaged in conversation with him, and only departed when ordered by her son-in-law to leave. He must have been temporarily insane from drink to venture within reach of the plaintiff’s husband and to tarry unnecessarily in his presence and engage him in conversation, after what had immediately preceded, and yet neither the plaintiff, nor her husband, nor her son-in-law, Couch, testified that his movements or conversation after he reached the home of the plaintiff indicated that he was intoxicated or mentally unbalanced, and in fact the plaintiff’s husband did not testify that he observed anything whatever that might indicate that Darden had been indulging in intoxicants to any extent, except the odor of whisky about his person. It is therefore easy to understand why Broad-water could not observe anything in Darden’s conduct a half hour earlier to put him on notice that Darden was then drunk or drinking or mentally unbalanced. The- jury found that Darden insulted the plaintiff as she alleged, and his extraordinary conduct can only be rationally explained on the theory that his reason was temporarily unsettled from intoxicants (of which however Broadwater had no knowledge); and since nothing appears from his general reputation that would have put Broadwater on notice that he was not otherwise a fit person, and he had no knowledge or reason to suspect that Darden was drinking or drunk, it follows that there was nothing to authorize the inference of negligence on his part in entrusting the plaintiff to the care of Darden, or that for this reason the defendant should be- mulcted in damages.

3. No general demurrer to the plaintiff’s petition .was interposed, as nominal damages were of course recoverable on the part of the plaintiff for the breach by the defendant of its contract of carriage. Except as passed upon generally in the two preceding divisions of this opinion, it is unnecessary to deal with questions presented by the demurrers interposed. Under our view of this ease, it is likewise unnecessary to consider or discuss the various special grounds of the motion for a new trial, not covered in effect by the foregoing opinion. A verdict for $1,000 can not be sustained as merely nominal damages; and since there was no evidence to authorize this verdict, the trial judge erred in overruling the motion for a new trial.

Judgment reversed.

George, J., concurs. Luke, J., dissents.

Luke, J.,

dissenting. This case arose as an action by a female passenger against a railway company for injuries alleged to have been the proximate result of the defendant’s negligence in carrying her beyond the point of her destination. The jury returned a verdict for'$1,000 in favor of the plaintiff; and, in my opinion, from the evidence (the weight and credibility of which are to be determined by the jury alone), they were"authorized to find that the plaintiff boarded the defendant’s train at Ateo, paid her fare to Cave, and told the conductor that she wished to get off the train at the latter point; that the conductor agreed to stop the train at Cave and negligently omitted to do so, carrying her to Kingston, two miles beyond the point of her destination; that, upon passing Cave, she made complaint to the conductor, who then promised to stop the train at Kingston and there send her back to Cave; that, upon arriving at Kingston, the conductor put her off, as he had agreed to do, and there instructed the railway company’s local agent to send her back to Cave; that the local agent thereupon employed a young man.to take her back to Cave in his buggy; that it was 7 o’clock p. m. before the train arrived at Kingston, and it was dark before arrangements for her return to Cave were completed; that she was wholly unacquainted with Darden, the person employed to take her from Kingston to Cave, though the agent knew him well; that he had received a shipment of whisky, arriving on one of the trains of the defendant on the same afternoon, and the agent knew, or in the exercise of any sort of care could have known, that he was then and there, at the time of his employment for that purpose, either drunk or in a semi-intoxicated condition; all of which was unknown to the plaintiff until after the local agent had placed her in Darden’s buggy and she and Darden were well on the way to Cave; that, as a result of Darden’s drunkenness, he consumed at least one hour in. going the two miles from Kingston to Cave, during which time he repeatedly proposed sexual intercourse with the plaintiff, used to her other insulting and humiliating language, and refused to allow her to get out of the huggy, as she attempted to do in resentment of his' insults; all of which the local agent knew, or in the exercise of any care ought to have known, was calculated to occur on such a trip along a country road at night with a woman in the power of a drunken •man (I am forced to the conclusion that the jury were authorized to find that Darden was drunk, because he admitted that he had three drinks of whisky between 5:30 p. m., and 7.30 p. m., the time when the plaintiff got in his buggy); that, immediately upon arriving at her house at Cave, the plaintiff complained to her husband of Darden’s conduct, and followed up her complaint by causing Darden to be indicted and convicted for his said criminal' conduct.

This case differs from the eases of Burnett, Dorsey, and Price, cited in the majority opinion. In the Price case the Supreme Court held that the conductor had no authority to employ the landlord of a hotel to look after the plaintiff for a night. Further, in the Price case the plaintiff was injured by the explosion of a kerosene lamp in the hotel. The injuries received by the plaintiff in the Price case were not the natural and proximate consequence of carrying the plaintiff beyond her destination. In the exercise of extraordinary care, no such injury as did occur to the plaintiff in the Price case could have been foreseen by the conductor or any agent of the railroad. The negligence of the proprietor of the hotel was a separate and independent agency, not connected with the railway company. The same distinction may be drawn between the instant case and the case of Burnett. In that case the plaintiff, in walking from East Third street to Cherokee street, in the city of Rome, fell on the street and dislocated and broke her hip. There was a separate and independent agency responsible for her injuries. No amount of care would have caused the railway company, in the Burnett case, to have anticipated that any such injury would have occurred. In the Dorsey case the plaintiff had been carried by her station, and was put off near the next station, to walk home. In walking home she was frightened by loud voices of negroes who were walking behind her. No amount of care would have caused the. railway company, in the Dorsey case, to have anticipated that the passenger would be frightened, as she pleaded. As was held in the Dorsey case, if the evidence had made it appear that the locality was one in which such injury was likely to occur, and that the railroad company had notice of it then the railroad company would have been liable.

In the instant case it is my opinion that, when the agents of the railway company placed Mrs. Jackson in charge of Darden, they must have known that he was at least in a semi-intoxicated condition. If, from the evidence, the jury were authorized to find that the local agent knew, or in the exercise of care could have known, the facts respecting Darden’s intoxication, the railway company .was bound to anticipate that just such injuries as occurred would occur. In the Price case, if the landlord of the hotel had been intoxicated, and his intoxication had been known to the conductor and unknown to Mrs. Price, and her injuries had been the same as in the instant case, the ruling in that case, on the question of proximate cause, would likely have been different.

I do not think it necessary to the plaintiff’s right to recover in this case that it be shown that the conductor or the other agent of the railway company had authority to employ Darden as a subagent. And it is not on the idea that the agent had authority to employ Darden that I disagree with the majority opinion in this cáse, but because of the fact that the agent placed this lady, at a time when she was a passenger, into a buggy with such a man as the jury were authorized to find Darden to have been. His conduct on the road with Mrs. Jackson was just such as a person with common experience, and such' knowledge as the agent had, might know would happen.


text:
    9044.
    CASTLEBERRY v. THE STATE.
    1. The fact that the judge, in the exercise of the broad discretion vested in him, allowed the solicitor-general during the trial, over the objections of the accused, to propound leading questions to a witness for thq State is not cause for a new trial, it not appearing that such discretion was abused. Russell v. State, 94 Ga. 594 (20 S. E. 422); Doster v. State, 93 Ga. 43 (3) (18 S. E. 997); MeGrary v. State, 137 Ga. 784 (74 S. E. 536); Wade v. State, 11 Gá. App. 411 (7) (75 S. E. 494).
    2. The excerpt from the charge of the court to the jury, complained of- in the 3d ground of the amendment to the motion for a new trial, when considered in connection with its context, does not require a new trial.
    3. There was some evidence which authorized the giving of the charge complained of in the 4th ground of the amendment to the motion for a new trial, and it was not erroneous for any other reason assigned.
    4. The excerpt from the charge complained of in the 5th ground of the amendment to the motion for a new trial was not erroneous for any reason assigned.
    5. Under the’ facts of the case the court did not err in refusing to charge: “If the female’s consent was obtained by the defendant by promise of marriage and fear of bodily harm, then in that event you would not be authorized to find him guilty of the charge of seduction.”
    Decided October 30, 1917.
    Indictment for seduction) from Grady superior court — Judge Harrell. June 23, 1917.

      S. P. Cain, J. Q. Smith, for plaintiff in error.

      R. C. Bell, soliictor-general, F. A. Hooper, contra.
   Broyles, P. J.

The fifth headnote alone needs elaboration. The State’s evidence was undisputed, outside of the defendant’s statement, and demanded that a verdict of guilty be returned. The defendant in his statement declared, that he had gone for about six months with the woman alleged to have been seduced by him; that he proposed marriage to her, and was accepted; that he procured a license to marry her, and often begged her to marry him, but she continually'refused to do so; that he had never had sexual intercourse with her; that after her continued refusals to marry him he left the State and went to Florida, to help make a living for his mother and sister; and that when the officer came after him he voluntarily returned with him, without requisition papers. The record further shows that after the defendant had been arrested, and while he was in jail, he wrote three different letters to the woman alleged to have been seduced (the prosecuting witness), in which he asked her to come to the jail to see him, stating that he wanted to marry her, and suggested that she marry him and stop the prosecution. She testified, that the defendant had gone with her a month or two before they became engaged; that they had been engaged about a year before they had sexual intercourse; that the defendant secured a license for their marriage, which he gave to her; that she yielded to him on the first occasion, because of his begging and his promises to marry her, and also because of her fear of bodily harm from him if she refused; that after this first time the defendant had sexual intercourse with her on several other occasions; that she became enceinte, and notified the defendant of her condition, and begged him to keep his promise to marry her; that he refused to do so, but continued to visit her until two or three months before her baby was born, when he notified her that he was going away, and she never saw or heard from him again until after he was arrested; that she had never had sexual intercourse with any other man; that she had never refused to marry the defendant, but on the contrary had on many occasions pleaded with him to keep his promises and marry her.

• Upon the trial a timely written request to give in charge to the jury the language quoted in the 5th headnote was presented to the judge, and he refused it. Under the foregoing facts we do not think his refusal' was error. In Jones v. State, 90 Ga. 616 (16 S. E. 380), it was held: “While an indictment for seduction can not be sustained by evidence 'showing that a rape was committed, the mere fact that the female offered some slight resistance to the sexual intercourse does not make the crime rape, when it appears that she really consented to the act, and that the accused did not have carnal knowledge of her forcibly and against her will.” And in the- opinion in that case we find the following language: “Sexual intercourse resulting from seduction must necessarily be committed and accomplished with the consent of the female. This is an essential and indispensable element of this particular crime. Bape, being the carnal knowledge of a female forcibly and against her will, necessarily implies the entire absence of consent on her part. It follows, plainly enough and without argument, that a rape can not be made the basis of a prosecution for seduction. The two offenses are so totally different, they can not be confused, nor can one of them by any possibility, legal or otherwise, be substituted for the other. People v. Brock [35 Mich. 691], 31 N. W. Rep. 585. While this is'manifestly true, it can scarcely be doubted ' that no modest girl or woman,'upon the occasion of her first carnal contact with a man, will readily submit to the intercourse without some reluctance and some show of resistance. The extent to which this resistance will go depends largely, we presume, upon the nature, education, surroundings and previous associations of the female. We imagine it would be very .difficult indeed to find a virgin of any age who would boldly and without shame or hesitation indulge for the first time in the sexual act; and while she may •consent to it, it is perfectly natural to expect a greater or less degree of reluctance on her part. Indeed, it is easy to imagine that a woman may yield herself to the sexual embraces of a man when the act is absolutely repulsive to her, and offends, in the highest measure, her every sense of delicacy. . . That a woman exhibits hesitation, reluctance and a slight degree of physical resistance does not, by any means, make the intercourse, when accomplished, rape. . .' The evidence in this case shows beyond doubt that Miss Smith, on the occasion when she first had sexual intercourse with the accused, really consented to the act, and that he did not then, nor-at any other time, have carnal knowledge of her by force. On cross-examination she did use some expressions tending to show a want of consent on her. part, and from which it is sought to draw the inference that the connection was had by force . and violence and against her will; but the only fair and reasonable conclusion from her testimony is that she yielded to the wishes of the accused, and this is doubtless the truth of the case. . . Even if the first sexual contact between the accused and herself had amounted to a rape, and he had afterwards, by persuasion and promises of marriage, obtained her free consent to have intercourse with him, and thus seduced her, he would be guilty of the crime of seduction. A virtuous woman upon whom the crime of rape has been committed does not thereby lose her virtue; and, if unmarried, there is no reason why she may not afterwards become the victim of seduction by her ravisher.” Applying the principle of this ruling to the facts of the instant case, it seems to us that although the prosecuting witness testified that she yielded to the defendant on the first occasion because of his begging and his promises to marry her, and also because of her fear of bodily harm if she refused, her evidence taken as a whole clearly shows that her predominant and controlling reason for yielding to him was his persuasion and his promise of marriage. And moreover, as stated in the case just quoted from, even if she had consented to the first sexual intercourse solely because of her fear of bodily harm, which would have amounted to a rape, and he afterwards, by persuasion and promises of marriage (as is shown by the evidence in the case), obtained her free consent to have intercourse with him, and thus seduced her, he would be guilty of the crime of seduction.

The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    8892.
    McSwain v. The State.
   Broyles, P. J.

The defendant was convicted of keeping intoxicating liquors on hand at his place of business. As disclosed by the record, such liquors were found there on one occasion only, and on that occasion two quarts of whisky were discovered, completely concealed, on the person of a negro man who had just entered the defendant’s place of business, a soft-drink and tobacco store. A policeman, who found the whisky on- the negro, saw the latter acting suspiciously before he entered the store, and, whenChe did enter, the policeman immediately followed him into the store, found him behind the counter, arrested him, pulled up his “jumper,” and found the two quarts of whisky in his hip-pockets. Irrespective of whether or not the negro, at the time he was arrested, was an employee of the defendant, the proof submitted to convict the defendant was purely circumstantial, and was not sufficient to exclude every reasonable hypothesis other than that of his guilt. The verdict of guilty was accordingly unauthorized by the evidence, and the court erred in overruling the motion for a new trial.

Decided October 30, 1917.

Accusation of misdemeanor; from city court of Columbus— Judge Tigner. May 5, 1917.

George G. Palmer, A. IF. Gozart, for plaintiff in error.

T. H. Fort, solicitor, contra.

Judgment reversed.

Bloodworth and Harwell, ' JJ., concur.


author: BeoyleS, P. J.

text:
    8954.
    Beall et al. v. The State.
    Decided October 30, 1917.
    Indictment for forgery; from Gordon superior court — Judge Tarver. May 31, 1917.

      M. B. Eubanks, T. W. Shelly, for plaintiff in error.

      ■J. M. Lang, solicitor-general, contra.
   BeoyleS, P. J.

1. An indictment charging the forgery of a will should be drawn under section 231 of the Penal Code of 1910, and not under section 245.

(а) Such an indictment must allege that the forgery was done with intent to defraud the State or some person. Penal Code (1910), § 231. If the indictment does not contain such an averment, it is fatally defective and void, since it charges no offense under the law; and a verdict of guilty is a nullity, upon which no legal judgment can be founded; and after the defendant has been- convicted and sentenced he may move to arrest the judgment, notwithstanding he may have failed to demur to the indictment, or to move to quash it.

(б) In such a case, upon a motion to arrest the judgment, the decision of the court is to be rendered solely on what is apparent on the face of the record and the pleadings. The judge can not consider anything that occurred upon the trial, or anything that transpired between the court and counsel prior to the rendition of the judgment, unless it appears in the pleadings or the record. Loudon v. Coleman, 62 Ga. 154; Herron v. State, 93 Ga. 555 (1.9 S. E. 243); Gilbert v. State, 17 Ga. App. 143 (86 S. E. 415). Of course a court has the right to amend its records so as to make them speak the truth.

2. Under the foregoing rulings and the facts of this case, the indictment was void, and the verdict a nullity, upon which no legal judgment could be predicated; and tbe court erred in refusing to entertain the motion in arrest of judgment, and in failing to arrest the judgment, the motion to arrest having been made at the same term of court at which the judgment was rendered.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    8961, 8962.
    Mosely v. The State.
    Decided October 30, 1917.
    Certiorari; from Effingham superior court — Judge Sheppard. May 5, 1917.

      Don H. Clark, for plaintiff in error.
   Broyles, P. J.

1. As no method of taking a ease by certiorari to the superior court from the city court of Springfield is prescribed by the act creating that court (Acts 1908, p. 211), a petition for certiorari to •correct errors of the city court of Springfield is properly verified by an affidavit in the form contained in Civil Code (1910), § 5184. In such a case the affidavit provided for in Park’s Ann. Penal Code, 790 (ff), is not applicable. Dixon v. State, 121 Ga. 346 (49 S. E. 311); Miller v. State, 126 Ga. 558 (55 S. E. 405); Hood v. State, 4 Ga. App. 847 (62 S. E. 570).

2. Under the ruling in the preceding note, the court erred in dismissing the writ of certiorari on the ground that the affidavit did not contain the averment “that he [defendant] has not had a fair trial, and has been wrongfully and illegally convicted.”

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    8985.
    Crowder v. The State.
    Decided October 30, 1917.
    Accusation of misdemeanor; from city court of Tifton — Judge Price. June 4, 1917.

      John Henry Pool, C. C. Hall, for plaintiff in error.

      J. S..Bidgdill, solicitor, contra.
   Broyles, P. J.

The defendant, who was charged with a misdemeanor, waived a trial by jury, and entered a plea of not guilty. He was found guilty by the court, and was sentenced to pay a fine of $25 and costs, or to serve six months in the county chain-gang. Only the usual general grounds are contained in the motion for a new trial. The evidence was sufficient to authorize the judge, who by consent was exercising the functions of both judge and jury, to adjudge the defendant guilty, and there was ho error in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Beoyles, P. J.

text:
    9016.
    Calhoun v. The State.
    Decided October 30, 1917.
    .Indictment for larceny; from Miller superior court — Judge Worrill. June 9, 1917. ,

      Billie B. Bush, for plaintiff in error.

      B, T. Castellow, solicitor-general, B. B. Arnold, contra.
   Beoyles, P. J.

No error of law is complained of, and the evidence authorized the .verdict.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9019.
    Harris v. The State.
    Decided October 30, 1917.
    Conviction of assault with intent to rape; from Wayne superior court — Judge Highsmith. May 26, 1917.

      James B. Thomas, Thomas & Walicer, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, P. J.

1. On an indictment for rape the defendant can be convicted of the offense of an assault with intent to rape, although the indictment does not contain an allegation of an assault.

2. Under the facts of the case the court did not err in failing to instruct the jury upon the subjects of a mere assault, or an assault and battery.

3. The excerpts from the charge of the court, excepted to, when considered in connection with the charge in its entirety, and the facts of the case, are not erroneous for any reason assigned.

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9035.
    Geiger v. The State.
   Beoyles, P. J.

1. An indictment for simple larceny, which charges the accused with stealing “one black barrow hog of the value of $10, the property of W. D. Sands, also one dark red or suttie sow hog of the value of $10, the property of one W. D. Sands,” sets forth a legally sufficient description of the stolen property. Brown v. State, 44 Ga. 300; Rivers v. State, 57 Ga. 28; Harvey v. State, 121 Ga. 590 (49 S. E. 674). Under the foregoing ruling the court did not err in overruling the oral motion to quash the indictment on the ground that there was no proper and sufficient description of the stolen hogs.

Decided October 30, 1917.

' Indictment for larceny; from Bryan superior court — Judge Sheppard. May 9, 1917.

J. Hartridge Smith, for plaintiff in error.

W. F. Slater, solicitor-general, contra.

2. The- other assignment of error, not being referred to in the brief of counsel for the plaintiff in error; is treated as abandoned.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9050.
    Nash v. The State.
    Decided October 30, 1917.
    Adultery, etc.; from city court of Macou — Judge Guerry. July 13, 1917.

      Hubert F. Bawls, S. L. Wisenberg, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, P. J.

1. The motion for a new trial contains only the usual general grounds. The evidence was sufficient to authorize the court, exercising by consent the functions of both judge and jury, to adjudge the defendant guilty. Miller v. State, 9 Ga. App. 827 (72 S. E. 279).

2. The court did not err in overruling the motion for a new trial, notwithstanding the judgment overruling the motion was rendered, as disclosed by the bill of exceptions, “on Friday the thirteenth.”

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9083.
    Phillips v. The State.
   Broyles, P. J.

. Under the repeated rulings of this court, and of the Supreme Court, where a motion for a new trial is based upon alleged newly discovered evidence, and affidavits disputing this ground of the motion are introduced, the trial judge is the trior of the disputed facts and of the credibility of the witnesses, and his judgment thereon will not be controlled unless a manifest abuse of his discretion is shown. In the instant case no such abuse appears.

(a) Under the facts of the case it was not error for the court to consider the various affidavits (objected to by the accused) introduced by the State on its counter-showing.

2. In connection with one of the grounds of the amendment to the motion for a new trial, relating to the alleged newly discovered evidence, complaint is made that the defendant was surprised by the introduction of a witness whose name was not on the indictment and who had not been subpoenaed. Inasmuch as the accused waived arraignment, copy of the indictment, and list of witnesses, and made no motion for a continuance upon the ground of surprise, nor invoked any ruling thereupon, there is no merit in this portion of the ground.

Decided October 30, 1917.

Indictment for selling intoxicating liquor; from Franklin superior court — Judge Cobb. July 11, 1917.

W. B. Little, for plaintiff in error.

A. S. Skeltoh, solicitor-general, contra.

3. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9102.
    Thomas v. The State.
    Decided October 30, 1917.
    Indictment for larceny; from Fulton superior court — Judge Hill. June 30, 1917.

      J. H. Leavitt, for plaintiff in error.

      John A. Boykin, solicitor-general, contra.
   Broyles, P. J.

The motion for a new trial contains only the usual general grounds. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9105.
    Mitchell v. The State.
    Decided October 30, 1917.
    Accusation of larceny; from city court of Dublin — Judge Flynt. July 25, 1917. .

      Smyth Burch, P. H. Martin, for plaintiff in error.

      S. P. New, solicitor, contra.
   Broyles, P. J.

1. Where one with intent to steal takes actual possession of the property of another, and removes it to any distance whatever, he is guilty of larceny. Smith v. State, 15 Ga. App. 400, (83 S. E. 437).

2. The circumstantial evidence was sufficient to establish the guilt of the. defendant to the exclusion of every other reasonable hypothesis.

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9141.
    Lunsford v. The State.
    Decided October 30, 1917.
    Indictment for malicious mischief; from Worth superior court— Judge Eve. July 28, 1-917.

      J. J. Forehand, for plaintiff in error.

      B. 8. Foy, solicitor-general, J. E. Tipton, contra.
   Broyles, P. J.

1. The defendant was charged with malicious mischief,

to wit, the cutting of and destroying a certain wire fence, the property of and on the land, of the prosecutor. Upon the trial there was evidence showing that the fence and the land, at the time of the alleged commission of the offense, were in the actual lawful possession of the prosecutor.- Under the ruling in Castleberry v. State, 62 Ga. 442, and Grant v. State, 120 Ga. 199 ( 47 S. E. 524), this evidence was sufficient to establish the prosecutor’s ownership of the property. See also, to the same effect, Markham v. State, 25 Ga. 52, and Hall v. State, 7 Ga. App. 115 (3) (66 S. E. 390). It is true that there was evidence showing that the defendant had an equity in the property and that he was in control and possession of it, but this issue of fact was finally determined by the jury in favor of the State.

2. The first four grounds of the amendment to the motion for a new trial are merely amplifications of the general grounds that the verdict is contrary to the law and the evidence.

3. The fifth ground of the amendment to the motion for a new trial, complaining of improper argument by counsel for the State, can not be considered by this court, as the trial judge appends thereto the following note: “Counsel for defendant made no objection to or motion with reference to this argument at the time it was made.”

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9144.
    Dowdell v. The State.
    Decided October 30, 1917.
   Broyles, P. J.

1. Under the facts of the case the court did not err in ' admitting in evidence, over the objections of the defendant, testimony as complained of in the 1st and 2d grounds of the -amendment to the motion for a new trial.

2. The venue of the offense was sufficiently proved. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Harwell, J., disqualified.

Accusation of misdemeanor; from city court of LaGrange— Judge Harwell. July 31, 1917.

Arthur Greer, for plaintiff in error.

L. L. Meadors, solicitor, contra.


text:
    9156.
    Middlebrooks v. The State.
    Decided October 30, 1917.
    Indictment for pointing pistol at another; from Cobb superior court — Judge Morris. July 28, 1917.

      Mozley & Gann, H. B. Moss, for plaintiff in error.

      Herbert Olay, solicitor-general, contra.
   Broyles, P. J.

1. The following excerpt from the charge to the jury is excepted to: “I charge you that the defendant has seen fit to put his character in issue before you. This, under the law, he had a right to do. I charge you that good character is a substantive fact, and goes before you for your consideration along with the other evidence in the case. As to whether or not he has shown his character to be good is a matter the court can not pass upon. It is a matter for you to determine, like any other fact in the case. It is for your consideration. You have a right to consider the testimony as to his character, not merely when his guilt is doubtful, but I charge you that testimony of good character may of itself generate a doubt; but when the guilt of the accused is made to appear beyond a reasonable [doubt] to the satisfaction of the jury, they are authorized to convict regardless of good character. These are questions for you to pass upon.” The plaintiff in error can not complain of this charge,.it being more favorable to him than he was entitled to under the law. Brazil v. State, 117 Ga. 32 (43 S. E. 460); Fordham v. State, 125 Ga. 791 (54 S. E. 694); Maddox v. State, 9 Ga. App. 488 (71 S. E. 498); Hill v. State, 18 Ga. App. 259 (89 S. E. 351). " The contrary'ruling in Taylor v. State, 13 Ga. App. 715 (79 S. E. 924), relied on by counsel for the plaintiff in error, was expressly overruled in Hill v. State, supra.

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

.Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9181.
    Thomas v. The State.
    Decided October 30, 1917.
   Broyles, P. J.

The verdict was amply supported by the evidence, and no error of law appears to have been committed upon the trial.

Judgment affirmed.

Bloodworth and Harwell, JJ.', concur.

Indictment for felony; from Colquitt superior court — Judge Thomas. August 25, 1917.

James Humphreys; for plaintiff in error.

Fondren Mitchell, solicitor-general, contra.


author: Wade, C. J.

text:
    6854.
    State Life Insurance Company of Indianapolis v. Tyler, administrator.
    Decided October 31, 1917.
    Action upon insurance policy; from city court of Waycross— Judge McDonald. June 24, 1915.

      Parker & Walker, Charles F. Coffin, H. S. McMichael, for plaintiff in error. Philip Newbern, Wilson & Bennett, contra.
   Wade, C. J.

Under the answers of the Supreme Court to the several questions certified to that court in this case, the judge of the trial court erred in directing a verdict for the plaintiff. State Life Insurance Co. v. Tyler, 147 Ga. 287 (93 S. E. 415). See also Dunn v. Columbian Ins. Co., 18 Ga. App. 383, 384 (89 S. E. 432). It is unnecessary to pass upon the remaining assignments in the bill of exceptions.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    8342.
    Atlantic Coast Line Railroad Company v. Paulsen.
    Decided October 31, 1917.
    Action for damages; from city court of Savannah — Judge Davis Freeman. December 18, 1916.

      Osborne, Lawrence & Abrahams, Shelby Myrick, for plaintiff in error. Oliver & Oliver, contra.
   Luke, J.

The petition was not subject to the general demurrer. Savannah Electric Co. v. Fosterling, 16 Ga. App. 196 (84 S. E. 976), and eases there cited.

Judgment affirmed.

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


text:
    8351.
    Alabama Great Southern Railroad Co. v. Wallace.
   Luke, J.

1. Upon the trial of a suit against a railroad company for damages for the killing of a dog by the running of its locomotives or cars or other machinery, proof of such killing raises a presumption of negligence against the company. Seaboard Air-Line Ry. v. McDonald, 19 Ga. App. 627 (91 S. E. 1053).

Decided October 31, 1917.

Appeal; from Dade superior court — Judge Fite. December 27, 1916.

Payne & Hale, for plaintiff in error.

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

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.