author: Bloodwoeth, J.

text:
    11280.
    Welborn, alias Faver, v. The State.
    Decided April 14, 1920.
    Indictment for burglary; from Wilkes superior court — Judge Walker. December 13, 1919.
    Jenks Welborn, alias Jenks Eaver, was convicted of burglary, under an indictment which charged that he broke and entered the dwelling house of Eich Hurley and stole corn and cottonseed stored there. In the brief of his counsel it is contended that the conviction was unauthorized because no other evidence than that of an alleged accomplice connected him with the crime. The State relied on testimony as to tracks, to corroborate the testimony of that witness. The alleged accomplice was Tomps Burns, who testified, that he and Jenks Welborn and Mr. Jamie Young went at night to Bich Hurley’s pen near Hurley’s house and got a white and black spotted pig of Hurley’s out of the pen, and he (the witness) and Jenks went through a window into the house, pulling the window open by a string that it had on it, while Young was outside watching for them, and that they got about 15 bushels of corn, cottonseed, a shotgun, a pitchfork, and a saw, and carried the corn, cottonseed, and other things in baskets to Young’s house, hauling them in a wagon; that no one else was in the house from which the things were taken, and that he (the witness) pleaded guilty and was serving a sentence for the offense. Bich Hurley testified that in his absence on a Saturday night the house was broken into and cottonseed, corn, a shovel, a shotgun, two bushels of meal, two baskets, and a hog were taken. “ They went in at the window, right at the chimney. I saw tracks out there. They looked like three different shoe tracks. There was one that looked like a 5 or a 6 shoe, another that looked like an 8, and then 'a big one, about 10 or 11. I saw a wagon track where they turned around down there. . . The wagon track was about 100 yards from the house where they turned around, where they stopped and the stuff was carried down there and put in the wagon. . . I just saw three sets of tracks there. I did not know whose tracks they were. I did not search this man’s house. . . I investigated 'all I could. . . I said I didn’t have any idea this boy was there.” H. A. Smith testified for the State, that on his mother’s place Bich Hurley worked a farm; that he (the witness) knew about the stealing of the pig, the corn, and the cottonseed; he went to Mr. Young’s and got the pig back, and he got the corn and cottonseed out of Young’s crib; they got the cottonseed from Bich, and the corn looked like Bich’s corn. “ I examined about the pig-pen and house. I went there Sunday morning after that Saturday night. I found three tracks there, . . one track that might have been Mr. Young’s, . . another track about an 8 or a 9, and then a large track. That 8 or 9 would fit Jenks’ track. Then I found a big track that would correspond with Thomps Burns’. . . I don’t know anything else about it, only I know where they had the wagon and buggy in the woods, where they turned around. . . I saw one small track that would correspond to Mr. Young’s, . . then I saw one that looked like an 8 or 9. I don’t know whether it would fit that boy’s track or not. I never saw his feet in my life to notice them.” Harry Smith, sworn for the defendant, testified: “I found this hog up there between Mr. Young’s house and Tonch Burns, . . tied in a thicket between the two houses. I never found anything at Jenks’ house. I did not search it. . . "We found everything at Burns’ and Young’s place. We got the corn out of Mr. Young’s crib. We got the cottonseed out of another crib, right below his house. We tracked them off the plantation: they were going in that direction up the road. It rained that night.” The defendant, in his statement at the trial, said that he wore ’a number 7 shoe, and that he was at home with his wife “ that night they were talking about,” and knew nothing about “ this business.” His shoes were put in evidence by his counsel. A witness testified that the defendant’s wife was her daughter, and that they stayed all night in the same room with her the Saturday night on which Bich Hurley’s hog was stolen. There was conflicting evidence as to the character of the defendant.
   Bloodwoeth, J.

The facts in this case are not sufficient to support a conviction of burglary, and the judge erred in overruling the motion for a new trial.

Judgment reversed.

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

Colley & Colley, Hugh E. Combs, for plaintiff in error,

cited: Penal Code (1910), § 1017; Butter v. State, 17 Ga. App. 522, and citations.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    11284.
    Bell v. The State.
    Decided April 14, 1920.
    Conviction of shooting at another; from Terrell superior -court — Judge Worrill. January 10, 1920.
   Bloodworth, J.

The evidence for the State shows an unprovoked attack with a deadly weapon upon the person assaulted. Even under the statement of the defendant a verdict of guilty was demanded. There is nothing in any of the special grounds of the motion for new trial which would demand that a verdict so clearly correct should he set aside.

Judgment affirmed.

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

M. C. Edwards, for plaintiff in error.

B. T. Castellow, solicitor-general, R. R. Arnold, contra.


text:
    11294.
    Tooke v. The State.
   Bloodworth, J.

1. It is insisted that “ the evidence in the case justified and demanded a charge of the court on the question of alibi, and in fact the reading of the record will disclose that the main defense relied upon by the defendant in this case was an alibi;” that in his original charge the judge did not refer to this defense, but after the jury had retired to their room they were recalled by the judge and charged on alibi. In a note to this ground of the motion for a new trial the judge says: “The jury had entered the jury-room, the door closed, but immediately [they were] brought back and the charge given of which complaint is made in this first amended ground.” It is not claimed that the supplemental charge was given in the absence of the accused or his counsel. In Davis v. State, 122 Ga. 564 (3) (50 S. E. 376), it was held: “The judge in a criminal case may recall the jury and deliver further instructions upon the law of the case; and so doing will not be cause for a reversal when the prisoner is present at the time of such instructions, or his absence is not brought about by any act of the court, and when the instructions are legal and pertinent.”

2. ‘'"When the court had fairly and correctly charged the doctrine of reasonable doubt as applicable to all the evidence in the case and the statement of the defendant, there was no error in failing to charge the special proposition that if the evidence offered in support of the defense of alibi, even though insufficient to establish that as a substantive defense, yet, when taken in connection with all the other evidence in the case, raised a reasonable doubt of guilt, the jury should acquit. Especially is this true when no request was made to the court to so instruct the jury. Shaw v. State, 102 Ga. 665 [27 S. E. 477].” Bass v. State, 1 Ga. App. 728 (4) (57 S. E. 1054). This disposes of the 2d ground of the amendment to the motion for a new trial.

3. The court did not err in charging the jury as follows: “The defendant has a right in all criminal trials to offer testimony or put in evidence as to his character. Wherever that is done, then that presents an issue to the jury, presents a question of fact to the jury, "to determine what kind of character has been shown for the defendant; and I charge you that proof of good character may of itself generate in the minds of the jury a reasonable doubt of the guilt of the accused. While that is true, if the testimony in the case convinces the minds of the jury of the guilt of the accused, beyond all reasonable doubt,—if the conviction has been carried to their minds to that extent,—then they are authorized to convict, even though they find there is proof of good character shown for the defendant.” See Jackson v. State, 76 Ga. 552 (9), 562 (8), 569 (9) ; Shropshire v. State, 81 Ga. 591 (8 S. E. 450) ; Mills v. State, 17 Ga. App. 116 (1) (86 S. E. 280).

Decided April 14, 1920.

Indictment for manufacture of liquor; from Macon superior court — Judge Littlejohn. January 7, 1920.

4. While the sheriff was on the witness stand and after he had sworn that he had found the defendant engaged in operating a still, he was asked by counsel for tne accused if he had any warrant for the defendant. The sheriff answered, “I didn’t have a warrant for him; I didn’t need any.” Upon objection by the solicitor-general to this evidence as immaterial, the judge asked counsel for the defendant, “ What is the purpose of that?” Counsel replied, “To show an illegal arrest.” The court then said, “ I will rule there was no illegal arrest.” So far as the record shows, the attorney for the accused made no further statement. In what is stated we find no error that would warrant the grant of a new trial, especially in view of the qualifying note of the judge, attached to this ground of the motion for a new trial.

5. A witness for the State was placed upon the witness stand. Counsel for the accused “requested the court to instruct the witness that he was not compelled to testify in this ease to any matter that would incriminate him, or bring reproach upon him.” The judge asked the solicitor-general, “Have you a charge against this defendant?” The solicitor-general replied, “ There is a charge to which he has entered a plea of guilty and been sentenced.” The judge then said, “You can go ahead with the witness then,” and refused to instruct the witness as requested. This ruling was not error for any reason alleged. For the State to show that the witness offered by it had pleaded guilty to a criminal charge certainly could not have injured the cause of the accused. This disposes of grounds 5, 6, and 7 of the motion for a new trial.

6. A witness' for the defendant testified, in answer to a question of the solicitor-general, “I have drank some; yes, sir, somewhat habitually.” Counsel for the defendant objected to this evidence, and moved to rule it out as “immaterial and irrelevant.” “The admission of testimony which is entirely immaterial and irrelevant to the issues being tried furnishes no ground for a new trial, unless the testimony is of such a nature as to prejudice the movant’s cause before the jury.” Johnson v. State, 128 Ga. 71 (2) (57 S. E. 84). We cannot say that this evidence is “manifestly prejudicial,” and the assignment of error does not point out “wherein it is harmful.” Brown v. State, 119 Ga. 572 (2) (46 S. E. 833).

7. There is ample evidence to support the verdict; the trial judge, who saw and heard the witnesses, approved the verdict; and as no error of law was committed, we are powerless to interfere.

Judgment affirmed.

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

Shipp & Sheppard, for plaintiff in error.

Jule Felton, solicitor-general, contra.


text:
    11310.
    JONES v. THE STATE.
    Decided April 14, 1920.
    Whether the evidence was sufficient to identify the accused as the person who made the assault was a question for the jury; and this court can not say that the verdict was without evidence to support it.
    Indictment for assault with intent to murder; from Eulton superior court — Judge Humphries. January 24, 1920.

      Fred. E. Harrison, B. H. & Harvey Hill, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Bloodworth, J.

The defendant was convicted of assault with intent to murder. The motion for a new trial contains only the usual general grounds. In the brief of counsel for the plaintiff in error it is insisted that “ there is no satisfactory evidence as to the identity of the defendant as a.party who made the assault. . . In connection with this evidence the testimony shows undoubtedly that the defendant was not the man, because thirty minutes after the alleged assault he was at work at the very place where the assault was made. . . Take this evidence in connection with the evidence offered by the defendant tending to show an alibi, and it must be conceded that there is no substantial or satisfactory evidence showing beyond a reasonable doubt that the defendant was the man who committed the assault.” The question of the identity of the defendant was one to be settled by the jury under the evidence. The person who was assaulted testified: “I know he is the negro.” The assault happened “about five minutes after 12 o’clock.” At the place where the person assaulted was found there was “ about a hatfull of blood.” The accused was arrested “ a little after one o’clock,” and “there was fresh blood on his shirt.” The officer who arrested the accused testified: The defendant “ told me that he did this. I did not threaten him.”

“ Under the facts as disclosed by the record this court cannot say that the verdict of the jury is without support from the testimony or so far contrary to it as to authorize this court to determine that the trial j'udge abused his discretion in refusing to grant a new trial. The law allows him to refuse or grant new trials in the exercise of a legal discretion, but it does not give this court any discretion in the matter. It can only grant new trials when errors of law hav.e been committed, or when the trial judge has abused his discretion in refusing a new trial.” Smith v. State, 91 Ga. 188 (17 S. E. 68). See also Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.

Judgment affirmed.

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


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

text:
    11238.
    MOORE v. THE STATE.
    1. Upon the hearing of the defendant’s motion for a continuance because of the absence of a witness, he failed to state that he expected to be able to procure the testimony of the witness at the next term of the court. It was not error, therefore, to deny the motion. Jones v. State, 128 Ga. 23 (1) (57 S. E. 313). Moreover, it appeared from the counter-showing of the State, made upon the hearing of the motion „ for a new trial, that the testimony of the absent witness would not have materially benefited the defendant.
    2. A ground of the motion for a new trial sets up that the allegation of the indictment, that the bank burglarized “was a corporation and was chartered under the laws of the State of Georgia,” was not supported by proof. Under the ruling in Crawford v. State, 68 Ga. 822, the words quoted above were mere surplusage and did not have to be proved. See also Mattox v. State, 115 Ga. 212 (41 S. E. 709), where it is stated, in this connection: “It would seem, however, that if the name imported a corporation and raised a presumption, it would also raise such a presumption for purposes of evidence, and that it would be incumbent upon the accused to prove affirmatively that no such corporation existed.” In the instant case there is no contention that any proof was submitted to show that the bank alleged to have been burglarized was not a corporation chartered under the laws of Georgia.
    3. Under the counter-showing submitted by the State, there is no merit in the 5th special ground of the motion for a new trial, which complains of the refusal of the court to declare a mistrial, based upon the separation of the jury, during the trial, without the consent of counsel.
    4. Complaint is made in one or more grounds of the motion for a new trial that a certain woman was allowed to testify against the defendant, over his objection that she was his wife. It does not clearly appear from the evidence submitted on this question that she was in fact the defendant’s wife. The testimony was in conflict and did not demand a finding that she was his wife. It was not error, therefore, for the court to submit this issue to the jury, with appropriate instructions thereon, or subsequently to refuse to rule out the testimony of the witness. See, in this connection, Hoxie v. State, 114 Ga. 22 (4) (39 S. E. 944); Dowdy v. Watson, 115 Ga. 42 (4) ; (41 S. E. 266); Carroll v. Barber, 119 Ga. 856 (2) (47 S. E. 181).
    Decided April 15, 1920.
    5. The court did not err in failing to instruct the jury upon the law of larceny from the house.
    6. No material error appears in any of the excerpts from the charge of the court, as complained of in various grounds of the motion for a new trial.
    7. The defendant demanded that he he furnished with a list of the witnesses who had testified before the grand jury, and the solicitor-general inadvertently furnished him with a list that was incorrect, in that the name of one witness who had testified before the grand jury was not on it, and the incorrectness of the list was discovered during the trial and upon the cross-examination of the witness whose name was so omitted from the list. The defendant moved for a mistrial of the ease upon the ground that he had been furnished with a list of the witnesses who had appeared before the grand jury. The court overruled the motion for a mistrial, but, upon the motion of the solicitor-general, ruled out all of the testimony of the witness and instructed the jury not to consider it in their deliberations. Held: ■ The court did not err in overruling the motion for a mistrial.
    8. Under all the particular facts of the ease, no substantial merit appears in any of the remaining special grounds of the motion for a new trial."
    9. The verdict was amply authorized by the evidence, and for no reason assigned did the court err in overruling the motion for a new trial.
    Indictment for burglary; from Franklin superior court — Judge W. L. Hodges. December 15,1919.
    Application for certiorari was denied by the Supreme Court.

      T. H. Fort, Herbert Clay, for plaintiff in error.

      A. S. Shelton, solicitor-general, G. L. Goode, W. R. Little, contra.
   Broyles, C. J.

An elaboration of the 7th headnote is considered desirable. Upon the trial, while B. S. Lenhardt, a witness for the State whose name was not upon the list of witnesses furnished to the defendant as those who had appeared before the grand jury, and who had been introduced and examined in chief by the State, was being cross-examined by the defendant’s counsel, the defendant learned for the first time that this witness had testified before the grand jury. Thereupon the defendant moved for a mistrial of the case, upon the ground that he had not been furnished with a list of the witnesses who had appeared before the grand jury, after having demanded such a list. The court refused to declare a mistrial, but ruled out all of the evidence of the witness and instructed the jury not to consider it.

Every person charged with an offense against the laws of this State shall be furnished, on demand, with a list of the witnesses upon whose testimony the indictment against him was found. Constitution of the State of Georgia, art. 1, sec. 1, par. 5; Civil Code (1910), § 6361, Penal Code, §§ 8 (2), 970. It is well settled that this provision is mandatory, and not merely directory. Where, however, an incorrect list is furnished inadvertently by the State, what is the proper remedy to be applied by the court (it being presumed in this case, since nothing appears to the contrary, that the omission of the name of the witness from the list furnished the defendant was through an inadvertence of the solicitor-general) ? A direct answer to this question does not appear to have been given by either the Supreme Court or this court. In Fears v. State, 125 Ga. 739 (3) (54 S. E. 667), it was held merely that “the failure to furnish the accused or his counsel with a copy of the indictment and list of witnesses, in the absence of a demand therefor, does not constitute a valid ground for setting aside the verdict of guilty. Penal Code [1895], § 945.” It might be inferred from this ruling that where the list of witnesses is demanded,- a refusal to furnish it would constitute a good ground for a new trial, but the court was not passing on that question, and did not indicate that this would be so if the solicitor-general had in good faith endeavored to comply with the demand by furnishing such a list, but through inadvertence had omitted to place thereon the name of one witness who had appeared before the grand jury. In Inman v. State, 72 Ga. 269, it was held that a witness whose name was not upon the list furnished to the defendant and who did not testify before the grand jury was not incompetent to testify on the trial. There is a clear inference from this decision that if the witness had testified before the grand jury he would have been incompetent to testify on the trial. In Regopoulas v. State, 116 Ga. 596 (42 S. E. 1014), it was held that the furnishing of an incorrect list of the witnesses who had testified before the grand jury, where the defendant had demanded the list, was not cause for setting aside the judgment. And in the same case, in 115 Ga. 232 (41 S. E. 619), it was held that it is not a good ground to arrest the judgment. It is true that in the opinion in 115 Ga. 233, Chief Justice Simmons said: “In our opinion, he [the defendant] could have moved for a mistrial of the case when he discovered that the list given him was incorrect.” This statement, however, was purely obiter. As has been stated, neither the Supreme Court nor this court has ever passed directly on this question.

Many other States have substantially similar statutes in force, and in perhaps the majority of them the ruling has been made that where the provision, of the statute requiring a list of witnesses to be served on the defendant is mandatory in its terms, a witness whose name is not on the list is incompetent to testify on the trial. 16 Corpus Juris, 800, and authorities cited in note 99. In some of the States, however, it is held that under such circumstances it is nevertheless within the discretion of the court to permit the witness to testify where his name was omitted from the list inadvertently, and where his testimony was not of such a character as to surprise the defendant. See, in this connection, 2 Jones & Addington Ill. Stat. Ann. pp. 2214, 2215; Lutzow v. People, 240 Ill. 612 (88 N. E. 1049); United States v. Neverson, 12 D. C. (1 Mackey) 152.

After diligent search, we have failed to find a single case in the books, and have been cited to none, where it has been held that the failure to give the defendant, under such circumstances, a correct list of the witnesses is cause for a mistrial of the case. In our judgment the court in the instant case applied the proper remedy when he excluded the testimony of the witness and instructed the jury not to consider it, and it was not error to overrule the defendant’s motion for a mistrial.

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., dissents.

Luke, J.

I dissent as to the rulings stated in the 3d, 4th, and 7th headnotes.


author: Luke, J.

text:
    11248.
    BROWN & PEEPLES v. STOKES et al.

    Ordinarily an agent to sell earns his commission only when he finds a customer ready, able, and willing to buy on the terms stipulated by the principal (Civil Code of 1910, § 3587; Harvil v. Wilson, 11 Ga. App. 156, 74 S. E. 845; but the principal can not, with knowledge of the negotiations between the purchaser and the agent, and while such negotiations are still pending, defeat the right of the agent to recover such commission, by interfering with and himself completing the sale of which the agent was the procuring cause. Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (3) (97 S. E. 443), and cit. The law as here stated applies as well where the broker’s compensation is to be all above a fixed net selling price as where his remuneration is to be a certain percentage of a designated selling price.
    Decided April 15, 1920.
    Rehearing denied June 16, 1920.
    Complaint; from Tift superior court — Judge Eve. January 8, 1920.

      Fulwood & Hargrett, for plaintiffs.

      R. D. Smith, for defendants.
   Luke, J.

The petition in the instant ease unequivocally alleges: that the defendants employed the plaintiffs as real-estate dealers to sell for them a designated farm for $8,000 net to them, and agreed that the plaintiffs should receive for their services whatever sum in. excess of $8,000 they could obtain for the place; that the petitioners, acting under their contract of employment, secured a designated purchaser, who was able, ready, and willing to buy said farm for $8,400, and who actually agreed with the petitioners to purchase at that price; and that the defendants privately, and without the knowledge of plaintiffs, approached their said purchaser, and sold said farm to him for $8,000; to the injury and damage of plaintiffs in the sum of $400. After the introduction of the evidence by plaintiffs and defendants the court directed a verdict for the defendants. The question then really resolves itself into the proposition whether, under the evidence, the plaintiffs could in any event have legally recovered.

Undoubtedly the evidence shows the contract as alleged. It clearly appears that the plaintiffs introduced their prospective purchaser, B. D. Smith, to the defendants, showed him over the place, and earnestly worked to induce him to purchase. The evidence shows also that Smith at one time actually offered to pay $8,200 for the place, but that the plaintiffs declined that offer. The testimony of one of the plaintiffs is that he did on a certain afternoon succeed in having the said Smith agree to purchase the place for $8,300, and agree to close the deal with the defendants on the following morning. It appears without contradiction that on the same afternoon Smith went directly to the defendants and closed a deal with them for $8,000. There is evidence that the next morning J. E. Peeples, one of the plaintiffs, told the younger Mr. Stokes, one of the defendants, that he had sold the place, and that Stokes replied, “I sold the place last night.” Upon inquiry as to who the purchaser was, Stokes told Peeples that he did not want to disclose the purchaser’s name, but that he was not any person with whom the plaintiffs had been negotiating. Shortly after this conversation Peeples saw Smith, the purchaser, and told him the place had been sold, and Smith merely expressed surprise. Some months later, when Peeples learned that Smith was the purchaser, he asked Smith about it, and Smith admitted that he had bought the place on the afternoon of his conversation in regard to a sale for $8,300. Peeples then asked Smith to bring a suit for them against the defendants, and Smith declined, and suggested that they get other lawyers to bring the suit, and also suggested that the conversation between them in regard to the sale for $8,300 be put in writing, so there could be no misunderstanding between them. This was done, and the writing, which was approved by both of them, set out in substance that Smith asked Peeples if he could buy the place for $8,300, and that Peeples said “Yes;” that Peeples requested Smith to give a check for $100 to close the deal, and Smith replied, “ No, I will see you in the morning about it.”

We do not think the fact that a broker’s remuneration is to be all above a fixed net price, instead of a percentage of a gross selling price, would necessarily defeat a recovery of compensation in a case where the owner of the property himself intervenes and sells directly to the purchaser. Though it may be more difficult to ascertain the broker’s compensation in a case like the one at bar, yet we think his right to recover for his services is controlled by the same well-established principles of law as obtain in a case where the broker’s commissions are fixed on a percentage basis. Under the law as set out in the headnote, we are of the opinion that the jury should have been 'allowed to determine the issues of fact presented by the evidence. The court erred in directing a verdict for the defendants.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Smith, J.

text:
    10500.
    Wright, comptroller-general, v. Alabama Great Southern Railroad Company.
   Smith, J.

1.(1)“ The act of the General Assembly approved August 15, 1914 (Acts 1914, p. 246), entitled ‘ An act to create a board of commissioners of roads and revenues for the County of Dade; to provide for the selection of said commissioners who shall constitute the board;' to prescribe their terms of office, their duties, fix their salaries, and for other purposes,’ confers upon the board of commissioners of roads and revenúes the exclusive power, theretofore exercised by the ordinary, to levy, a tax for the maintenance of the public roads of Dade county. See Rawls County v. U. S., 150 U. S. 733 (26 L. ed. 1220); Pennington v. Gammon, 67 Ga. 456; Garrison v. Perkins, 137 Ga. 751, 752 (74 S. E. 541); Mathews v. Hussey, 148 Ga. 526 (97 S. E. 437).” (2) “A county, after having adopted the alternative road law as embodied in the Civil •Code (1910), §§ 694 et seq., and after having levied the maximum rate of four dollars per thousand for the maintenance of the public roads of the county, cannot levy an additional or special tax for that purpose. See Central of Georgia Railway Co. v. Meriwether County, 148 Ga. 423 (96 S. E. 884).” Wright v. Alabama Great Southern Railroad Co., 150 Ga. 140 (103 S. E. 95).

Decided May 5, 1920.

Affidavit of illegality; from Dade superior court — Judge Tarver. March 17, 1919.

Martin G. Smith, for plaintiff.

Maddox, McCamy & Shumate, S. J. Hale, for defendant.

2. In response to questions certified by this court, the Supreme Court answered as appears above; and since the rulings there made control the decision of this case, the trial judge did not err in sustaining the affidavit of illegality and dismissing the levy.

Judgment affirmed.

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


author: Stephens, J.

text:
    10782.
    Devoe v. Best Motor Company.
   Stephens, J.

1. Where a defendant maintained a gas tank with a patent pump attached thereto, operated by electricity controlled by a switch attached to the tank, which, when cut off while the pump was “ pulling ” and the batteries.running, emitted an electric spark, and where the pump could as easily have, been operated with the switch located elsewhere and some distance from the pump and the tank, and where gasoline, with the defendant’s knowledge, had escaped and covered the pump and the surrounding ground and also saturated the clothes of a bystander, who was a minor employee of the defendant, the question of defendant’s negligence in maintaining the switch so located and in shutting off the electric current by means of the switch under such circumstances, thus generating an electric spark which set fire to the escaped gasoline and the saturated clothes of the deceased, causing the latter to sustain burns from which he died, was one for the jury.

2. Where the relation of master and servant existed between the defendant and the deceased, it was, under the above-stated facts, a question for the jury whether or not the defendant, who was the master, ought to have known of the alleged defect in the location and construction of the switch and the danger incident thereto.

Decided May 5, 1920.

Action for damages; from city court of Floyd county-—-Judge Nunnally. June 5, 1919.

Harris & Harris, for plaintiff.

J. P. Jones, E. V. Carter, for defendant.

3. It can not as a matter of law be held that the deceased, who was a minor 15 years of age and employed by the defendant generally about his place of business, had equal means with the master of knowing the danger of igniting the escaped gasoline upon shutting off the switch under such circumstances, or by the exercise of ordinary care could have known of such danger.

4. Although the gasoline may have escaped through the negligence of the deceased in improperly operating the pump, the question of proximate cause was one for the jury.

5. The evidence otherwise making a prima facie case for the plaintiff, who was the father of the deceased, suing for the homicide of his minor son, the judge erred in granting a nonsuit.

Judgment reversed.

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


text:
    10897.
    Holder v. Webb, administrator.
    Decided May 5, 1920.
   Stephens, J.

1. Where an heir at law filed a caveat to the application of an administrator for discharge, and upon the hearing the only issues for determination were whether or not certain realty deeded by the intestate to the caveator was an advancement, and, if such, what was the value of the property at the time of the advancement, and where it appeared that before the property was so deeded to the caveator he had made improvements upon it while in his possession under a previous contract of purchase by him from the intestate, which had been cancelled, it was not error on the part of the trial judge to fail to instruct the jury that the caveator was entitled to tlie benefit of the improvements so made; the judge having given in charge to the jury the law governing the determination of the value of an advancement, in charging substantially in the language of the Civil Code (1910), § 4056, that “Every advancement, unless a value is agreed on at the time of its acceptance, shall be estimated at its value at the time of the advancement, and no interest shall be charged upon the value thereof until the time of the first distribution of the estate, from which date advancements shall be reckoned, with regard to interest, in the same manner as an equal amount of the estate received at that time.”

2. Tlie evidence supports the verdict, and no error of law appears.

Judgment af/vrmed.

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

Petition for discharge of administrator, from Carroll superior court — Judge Terrell. July 15, 1919.

S. Holderness, for plaintiif in error.

Boykin & Boykin, contra.


text:
    10919.
    Hammond v. City of Atlanta.
    Decided May 5, 1920.
    Action for damages; from city court of Atlanta—• Judge Eeid. September 13, 1919.
    Application for certiorari was denied by the Supreme Court.

      W. R. Hammond, for plaintiif in error.

      J. L. Mayson, J. M. Wood, contra.
   Stephens, J.

1. A municipality is not liable fox a tortious injury resulting from tlie acts of its servants or officers while engaged in the performance of their governmental duties. The maintenance and operation, by a municipality, of a fire department for the purpose of preventing and extinguishing fires being a governmental duty, the municipality is not liable in damages to a bystander upon one of its sidewalks, who was knocked down and hurt by a hose-reel which was being operated by firemen of the municipality while engaged in an attempt to extinguish a fire. See, in this connection: Love v. City of Atlanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. R. 64) ; Watson v. City of Atlanta, 136 Ga. 370 (71 S. E. 664) ; Rogers v. City of Atlanta, 143 Ga. 153 (84 S. E. 555). The above ruling is clearly distinguishable from that in City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345), where it was held, that, where the employees of a city in the exercise of a governmental function left a dangerous obstruction in the sidewalk, the city was nevertheless liable to one not chargeable with negligence who was injured thereby, since it was the duty of the city to maintain and keep its sidewalks safe and free from dangerous obstructions.

2. The petition failed to allege a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

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


text:
    1102, 1103.
    LOUISVILLE & NASHVILLE RAILROAD COMPANY v. RICHIE; and vice versa.

    There was evidence from which negligence on the part of the railroad company could be inferred by the jury; the question whether the consequences of such negligence could have been avoided by ordinary care on the part of the plaintiff was one of fact for the jury, and this court can not disturb their verdict.
    Decided May 5, 1920.
    Action, for damages; from city court of Cartersville — Judge Aubrey. August 30,1919. .

      Tye, Peeples & Tye, D. W. Blair, Neel, Finley & Neel, for the railroad company.

      A. W. Fite, J. R. Whitaker, R. R. Arnold, contra.
   Smith, J.

This case has been tried three times, each trial resulting in a verdict for the plaintiff. Two of the verdicts were set aside by the court below on motion for a new trial, but the last motion for a new trial was overruled, and the defendant excepted and brought the case to this court for review. The grounds of the amended motion for a new trial amount to no more than an elaboration of the general grounds; and there being some evidence from which the jury could infer negligence on the part of the defendant railroad company, and whether the consequences of that negligence could have been avoided by the exercise of ordinary care on the part of the plaintiff being an issue of fact for their determination, and the trial judge having approved the verdict returned, this court is without power to interfere.

<Judgment affirmed on main bill of exceptions; cross-bill dismissed.

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


text:
    11010.
    Starnes v. Bacon.
    Decided May 5, 1920.
    Certiorari; from Chatham superior court — Judge Meldrim. July 11, 1919.
   Stephens, J.

1. A petition for certiorari must except to a final judgment, and must plainly and distinctly set forth the errors complained of.

2. An exception “ that the judgment entered on such verdict does not follow the verdict,” without alleging wherein such judgment fails to follow the verdict is not a complete and valid assignment of error. Searcy v. Collins, 94 Ga. 642 (20 S. E. 94).

3. A petition for certiorari which contained no valid assignment of error upon a final judgment and which complained only of rulings made upon the trial, was invalid, and the judge did not err in failing to sustain it.

Judgment affirmed.

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

Columbus E. Alexander, J. P. Dukes, for plaintiff in error.

Lee Cotton, contra.


text:
    11042.
    Georgia Mutual Industrial Life and Health Insurance Company v. Harris.
    Decided May 5, 1920.
    Appeal; from Hall superior court-—-Judge J. B. Jones. September 27, 1919.

      C. N. Davis, B. P. Gaillard Jr., for plaintiff in error.

      H. V. Johnson, A. C. Wheeler, contra.
   Stephens, J.

1. The motion for new trial in this case containing only the usual general grounds, and the evidence being sufficient to authorize the inference that the insurance company acted in bad faith, and otherwise supporting the verdict, the judgment of the lower court will not be disturbed.

2. It not being plainly apparent that the writ of error was sued out for delay only, the motion of the defendant in error for damages is denied.

Judgment affirmed.

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


text:
    11044.
    Holcomb, Croft & Company v. Finch.
    Decided May 5, 1920.
   Stephens, J.

1. A petition for certiorari must plainly and distinctly set forth the errors complained of.

2. A petition for certiorari which assigns error upon the grant of a new trial upon oral motion, by a judge of the municipal court of Atlanta, fails to set forth any ground of error where the only assignment of error to such judgment is in the following language: “To the order granting the new trial petitioner then and there excepted, now excepts and assigns the same as error, upon the ground that the same was contrary to law, the principles of equity and justice.” The petition for certiorari recites that the plaintiff made “ an oral motion for new trial,” and that upon a hearing the trial judge sustained and “granted the same.” It not appearing what grounds of error were urged in the oral motion for new trial, such general assignment of error to the judgment on the motion is insufficient. See, in this connection, Mutual Building & Loan Asso. v. Glessner, 99 Ga. 747 (27 S. E. 187); Erskine v. Duffy, 76 Ga: 602; Groover v. Inman, 60 Ga. 407, (5).

3. The judge did not err in failing to sustain the certiorari.

Judgment affirmed.

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

Certiorari; from Fulton superior court — Judge Pendleton. October 14, 1919.

Moore & Pomeroy, Coles & Savage, for plaintiffs in error.

Walter S. Dillon, C. M. Lancaster, contra.


author: Jenkins, P. J.

text:
    11051.
    McCRARY v. CORBIN et al.

    Decided May 5, 1920.
    The law oí this ease was fixed and determined by the ruling of this court in Corbin v. McCrary, 23 Ga. App. 780 (99 S. E. 472) ; and'therefore the trial judge did not err in dismissing the plaintiff’s written motion, the purpose of which is precluded by the previous decision.
    Motion to enter judgment; from Taylor superior court — Judge Howard. October 2,1919.
    McCrary instituted a dispossessory-warrant proceeding against Corbin as his tenant holding over.. The verdict was in favor of the plaintiff for the premises in dispute, and for $310 as double rent for the time the defendant held over up to the time of trial. The judgment was affirmed by this court. Corbin v. McCrary, 22 Ga. App. 474 (96 S. E. 445). Upon making the judgment of this court the judgment of the superior court that court, on oral motion of the plaintiff, entered in his favor an additional judgment covering such double rent of the premises from the time of the trial, and, in making this court’s judgment of affirmance the judgment of the lower court, the subsequent and additional judgment was thus included. On writ of error this action of the lower court was reversed, this court holding that “ On making the judgment of this court the judgment of the lower court in this case, that court erred in rendering another judgment for a sum of money additional to the amount of the original judgment.” Gorlin v. McCrary, 23 Ga. App. 780 (99 S. E. 472). Upon the return of the second remittitur from this court the plaintiff again, but by written motion, sought to establish the subsequently accruing claim for double rent “in connection with making said judgment [of this court] the judgment of Taylor superior court,” praying that an issue be made thereon and submitted to a jury, and that a rule nisi be directed to the defendant and his sureties on the bond. This motion was dismissed by the trial judge, and the plaintiff excepted.

      Jule Felton, for plaintiff. C. W. Fry, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.)

It is urged by counsel for the plaintiff that since, under the ruling made in Clark v. Lee, 86 Ga. 28 (12 S. E. 184), the liability of the surety on the bond given by the defendant in such a proceeding “is limited to the judgment obtained in this ease,” a gross miscarriage of justice would result if the plaintiff be not thus allowed to set up the additional judgment for subsequently accrued rent against the insolvent defendant and his bondsmen in connection with the proceeding to make the’judgment of the court affirming the original recovery the judgment of the court below. It is indeed manifest, under the terms of the statute itself, that the liability of the sureties on the bond given by the defendant in the eviction proceeding is for “ such sum with cost as may be recovered against him [the defendant] on the trial of the case.” Civil Code, § 5387. His liability is of course limited by the terms of his contract. Westbrook v. Moore, 59 Ga. 204. There has been a trial of the issue made in the court below, which has resulted in a verdict and judgment for the plaintiff in a stated sum, and this judgment has been unconditionally affirmed by this court. In making the judgment of affirmance its own judgment, the most that the court below can do is to take it and enter it as it is. To thus enter another, different, and subsequent judgment would not be an adoption of what has been adjudicated here. This was what was held by this court when this case was last before it, and it is but the same question which again presents itself. This court cannot permit its judgment to be altered under the guise of a proceeding taken to adopt it, even in furtherance of the time-honored maxim that “For every right there is a remedy.” When the law, as in this case, seems to afford no adequate remedy, the party aggrieved is limited to the employment of such equitable proceedings as may be taken in aid of his action at law. See Barrett v. Maynard, 150 Ga. 82 (102 S. E. 896).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11055.
    Little v. Dolvin.
    Decided May 5, 1920.
    Complaint; from city court of Greensboro-—Judge Brown. October 3, 1919.

      Davison & Lewis, for plaintiff in error.

      J. G. Faust, contra.
   Jenkins, P. J.

1. Ordinarily the burden of proof lies upon tlia plaintiff, who, alleging certain facts to exist, claims a right to recover against the defendant; but when in such a case the defendant comes in and by his plea admits the prima facie case as stated by the petition, and sets up matters in avoidance, then the defendant is the party who asserts the truth of the facts so set up, and the burden in such a case devolves on him to establish the facts so pleaded; failing to do which the plaintiff is, without more, entitled to the verdict. Where the defendant, by his' pleadings, has thus admitted a complete prima facie case,' and by so doing assumes the burden of proof, he is entitled to open and conclude the argument; and where such right is not waived in terms or by conduct, it is reversible error to deny it, except where the evidence is such as would demand a- verdict for the plaintiff.

2. Where the suit was for the purchase-price of a mule sold by the plaintiff to the defendant, and the defendant admitted the purchase at the price sued for, and set up the defense of payment, the fact that the defendant placed the date of purchase a short time prior to that alleged by the plaintiff did not impose upon the plaintiff any burden of showing by proof the subsequent date alleged by him, since, so far as the matter of interest goes, the admission would include the plaintiff’s entire contention.

Judgment reversed,

Stephens and Smith, JJ., concur.


author: Stephens, J. l.

text:
    11056.
    Lucas v. Durrence.
   Stephens, J. l.

“ Conversion . . involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Southern Express Co. v. Sinclair, 130 Ga. 372 (60 S. E. 849).

2. Where a city marshal, acting under instructions from the mayor and council of the city and after notifying the owner, removes from a street of the city an automobile which has been allowed by the owner to remain in the street, as an obstruction, and, with knowledge of the owner, transfers the same to a near-by vacant lot of the city, where he leaves it subject to the disposition of the owner, such action is not a conversion, since it is not “an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights;” and a verdict for the owner suing in trover is unauthorized by the evidence.

Decided May 5, 1920.

Trover; from Evans superior court — Judge Highsmith. September 8, 1919.

J. Saxton Daniel, P. M. Anderson, for plaintiff in error.

Judgment reversed.

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


text:
    11058.
    Savannah Dry Dock & Repair Company v. Trumbo.
   Jenkins, P. J.

Trumbo sued the Savannah Dry Dock & Repair Company, alleging, that the defendant was engaged in the construction of a dry dock at a shipbuilding plant in Chatham county; that petitioner was employed by the defendant as a carpenter, and was assigned to the work of nailing boards on the bottom of a pontoon of the dry dock; that the pontoon rested upon wooden ways, and was about six feet above the ground on the side farthest from the river, and three feet above the ground on the nearer side; that a board he had nailed on the bottom of the pontoon extended beyond the side of the pontoon about two feet; that after he had nailed on the board extending about two feet beyond the side of the pontoon, and as he was in the act of leaning over to pick up another board, the workmen on the outside, engaged in tearing down a scaffolding alongside the pontoon, caused the scaffolding to fall on the two feet of board extending beyond the pontoon, and this knocked the board from its fastenings, and the board thus loosened hit the petitioner on the back, causing the injuries complained of; that he was unable to see or hear the work going on outside; that the foreman in charge of the removal of the scaffold was an alter ego of the defendant, “his duties being to see that the scaffolding was torn down and that the ways were properly fixed for launching;” that such vice-principal, “then and there in charge of the work of taking down the scaffolding, did not take down the scaffolding and remove the same in a safe and proper manner, and instead of removing said scaffolding piece by piece, or in some other safe and proper manner, which the defendant company could have followed, hooked a derrick to the said scaffolding and pulled the same down bodily, without regard to the rights of employees working thereabouts and without regard to the safety of petitioner or other employees who might suffer injury therefrom; and petitioner charges that in thus hooking the derrick to the said scaffolding and pulling the same down, the defendant company was guilty of negligence.” The judge overruled the demurrer to the petition as amended, and to this ruling exception is taken. Held, that it cannot be decided, as a matter of law, that, under the allegations made by the amended petition, the foreman in charge of the work of removing the scaffold was not the alter ego of the defendant; but it was a question for the jury to determine whether or not, in giving the order as to how the work was to be done, he occupied the position of vice-principal in the exercise of a non-delegable duty, as alleged by the petition. McDuffie v. Ocean Steamship Co., 5 Ga. App. 125 (62 S. E. 1008) ; Moore v. Dublin Cotton Mills, 127 Ga. 609, 625 (56 S. E. 839, 10 L. R. A. (N. S.) (772). The court, therefore, did not err in refusing to dismiss' the petition on demurrer.

Decided May 5, 1920.

(Certiorari was granted by the Supreme Court.)

Action for damages; from city court of Savannah — Judge Freeman. October 13, 1919.

David S. Atkinson, for plaintiff in error.

Oliver & Oliver, contra.

Judgment affirmed.

Stephens and, Smith, JJ., concur.


text:
    11064.
    Matson & Healy v. State of Georgia et al.

    Decided May 5, 1920.
    Condemnation under liquor law; from city court of Cairo — Judge Eigsby. October 20, 1919.

      S. P. Cain, for plaintiff in error.

      Ira Carlisle, solicitor, contra,
   Stephens, J.

1. A vehicle is not subject to condemnation upon the ground that it is engaged in the transportation of liquors or beverages the sale or possession of which is prohibited by law, as provided in section 20 of the prohibition act approved March 28, 1917 (Ga. Laws, Ex. Sess. 1917, pp. 7, 16), when it does not appear that the vehicle was used in conveying the prohibited liquors or beverages with the knowledge of the owner or lessee. Lang v. Hitt, 149 Ga. 667 (101 S. E. 795).

2. Where one who was employed by the owner of an automobile merely as a driver, and who was therefore not a lessee within the meaning of this act (Lang v. Hitt, supra), although engaged in running the automobile on business for the owner, transported and conveyed in it liquors or beverages in violation of this act, without the knowledge of the owner, the automobile was not subject to condemnation.

Judgment reversed.

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


text:
    11069.
    Meador et al., executors, v. Patterson.
   Jenkins, P. J.

Suit in quantum meruit was brought against the executors of the will of J. B. Meador, to recover the value of services alleged to have been rendered for a period of nine years to the testator, who during that time was very aged and infirm. The court limited the recovery to services rendered during the last four years preceding his death. The verdict was in favor of the plaintiff, a motion for a new trial, based on grounds indicated below, was overruled, arid the defendants excepted. Held-.

1. The verdict is not only supported, but is abundantly supported, by the evidence.

2. The court did not err in refusing a request to charge as follows: “In order to recover at all in this case, the plaintiff must establish to your satisfaction, by a preponderance of the evidence, that at the time these alleged services were rendered, if they were in fact rendered, there was an intention on the part of the plaintiff rendering such services to receive pay therefor, and an intention on the part of the person receiving such services to pay for them; and in determining this question you would be authorized to consider all the facts and circumstances surrounding the parties in the case at the time and the circumstances under which these services were rendered.” As is contended by counsel for the plaintiffs in error, there is no difference between an express contract and an implied contract, except in the manner of setting it up; but the rule is, that, except in cases between near relatives, a promise to pay the reasonable worth of valuable services rendered will ordinarily be implied when their rendition by the one party and acceptance by the other party is shown. Civil Code (1910), § 5513. There being no such near relationship between the parties in this ease, the rendition and acceptance of the valuable services was of itself sufficient to imply a promise of payment, without proof of such an express contract, or of any additional circumstances equivalent thereto. Hudson v. Hudson, 90 Ga. 581, 584 (16 S. E. 349; Jackson v. Buice, 132 Ga. 51, 54 (63 S. E. 823). The court having given in charge the principle of law embodied in the code section cited, it was not error to refuse the request. Under the principle of law here stated, grounds 11 and 12 of the motion for a new trial are without merit.

3. It is complained that the court nowhere gave to the jury any standard to measure the amount of the recovery in the event 'they believed the defendants to be liable. The charge of the court to the effect that the law would import a promise to pay the reasonable value of the services rendered and accepted furnishes a sufficient guide to the measure of the recovery under the evidence adduced, especially in the absence of a request for more specific instruction on this line.

4. The complaint that evidence was admitted showing the usual charges made by nurses in respect to such services as were performed by the plaintiff in this ease does not afford a proper ground to set aside the verdict. While the value of such services cannot be established by what has been paid in some given and particular instance, the ordinary and reasonable value of sueh services is precisely what the plaintiff is' authorized to show. Marshall v. Bahnsen, 1 Ga. App. 485 (57 S. E. 1006).

Complaint; from Newton superior court — Judge Hutcheson. October 25, 1919.

King & Johnson, for plaintiffs in error.

A. D. Meador, R. L. Cox, contra.

5. That the decedent, in a conversation with a witness, praised the services rendered him by the plaintiff, and stated that he was going to “'take care” of her, served to support the existence of the implied contract relied upon by the plaintiff. If under the law such a contract could not be implied, the evidence here objected to might not of itself be taken as sufficient to establish one. See Lansdell v. Lansdell, 144 Ga. 571 (87 S. E. 782). Grounds 9, 14, and 15 of the motion for a new trial are without merit. Ground 13 is not insisted on.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11071.
    Bogush v. Southeastern Manufacturing and Specialty Company.
   Stephens, J.

1. Where a servant is employed in the operation of a machine used for the purpose of stamping out and flattening leather washers by the intermittent rising and falling of a heavy steel die upon a flat surface, such die being controlled by a pedal operated by the foot of the servant, and the duty of the servant being to place the washers upon the surface when the die is up, preparatory to being stamped by the die when it falls, and to remove the flattened washers after the die is raised, it is a perfectly obvious danger that the hand of the servant will be injured if ho fails to remove it from under the -die before it falls, and such obvious risk is therefore assumed by a servant undertaking to operate the machine. The fact that the master has instructed the servant to place his hand in such dangerous position will not excuse the servant from assuming the obvious risk.

2. While “ A servant may recover from his master for an injury occasioned by a dangerous instrumentality negligently maintained by the master, although it appear that the servant was not ignorant of the existence of such dangerous instrumentality, if it is shown that at the time of the injury the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing on account of the engrossing character of the work at hand” (King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S. E. 252), yet, “where the engrossing work involves the use of the dangerous instrument itself and it does not appear that the servant had any duty to claim his care and attention other than the doing of the very work by which he was injured, and that no other engrossing work claimed his attention so as to distract it from an appreciation of what was involved in the act he was about to attempt, it cannot be said that ‘ the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing.'- Moreover, in the King ease, supra, the ‘engrossing work' was such as diverted the servant’s attention away from the danger, instead of, as' in the instant case, fixed it upon the danger itself.” Ryle v. Macon News Printing Co., 25 Ga. App. 106 (102 S. E. 835).

Decided May 5, 1920.

Action for damages; from Fulton superior court-—Judge Bell. October 22, 1919.

Philip Waltner, Branch & Howard, for plaintiff.

Troutman & Freeman, contra.

3. The petition as amended failed to set out a cause of action, and was therefore properly dismissed on general demurrer.

Judgment affirmed.

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


text:
    11073.
    Scarborough v. Goldsmith Jr.-Grant Co.
    Decided May 5, 1920.
    Action for damages; from city court of Atlanta-—Judge Beid. October 4, 1919.
    It was contended on the part of the plaintiff that the action was for malicious abuse of legal process, and therefore that it was not necessary to allege the termination of the litigation. In the' brief of counsel for the defendant it was contended that the action could not prevail as an action for malicious abuse of legal process, because “ no abuse (illegal use) ” of the process was alleged; and that, as it was not alleged that the litigation had terminated, the action was not maintainable as a suit for malicious prosecution.
   Smith, J.

1. “Malicious use of legal process is where a plaintiff in a civil proceeding employs the court’s process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein. Malicious abuse of legal process is where a plaintiff in a civil proceeding wilfully misapplies the process of a court in order to obtain an object which such a process is not intended by law to effect. In a suit for damages growing out of such a perversion of the court’s process, it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages.” McElreath v. Gross, 23 Ga. App. 287 (1, 2) (98 S. E. 190).

2. Applying the above principles to the plaintiff’s petition, the court below did not err in sustaining the general demurrer and dismissing the ease.

Judgment affirmed.

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

The petition alleged, in substance, that, while in the employ of the defendant company as an automobile salesman, the plaintiff bought from it an automobile, giving for it installment notes in which title to the automobile was reserved in the defendant; that on March 1, 1919, all the notes then matured had been paid, it having been customary for the defendant to retain out of commissions earned by the plaintiff the amount of the notes as they matured, and to apply such amounts to their payment; that on that date there fell due one of these notes in the sum of $26.45, and the defendant at that time admitted an indebtedness to the plaintiff, because of commissions earned by him, in the sum of $25.65, lacking only $2.65 of being sufficient to cover the principal and accrued interest on the notes. The defendant was then indebted to the plaintiff in a sum greater than the amount of the principal and accrued interest on the said note. The defendant, through one Chapman, an officer of the defendant company, told the plaintiff that the defendant had a sufficient amount on hand as commissions due him to pay this note and would apply the commissions then so due him to its payment; and the plaintiff, relying on this assurance, considered the note as paid. At this time the plaintiff had severed his connection with the defendant and was acting as agent of a rival automobile concern, selling automobile trucks in the territory in which the defendant operated. On March 12, 1919, the defendant instituted in the municipal court of Atlanta a bailtrover suit against him for the recovery of the said- automobile, the 'action being predicated on failure to pay the purchase-money note maturing March 1, 1919, mentioned above. On March 19, 1919, at his home and in the presence of his neighbors, he was placed under arrest by two bailiffs of that court, under such bail-trover process. He then, through his attorney, called the attention of the defendant, through one of its officers (named) to -the fact that he was not indebted to it in the 'amount of the said note, but the said officer stated that he had authorized such bail proceedings to be instituted and would let such proceedings continue against him.

“Petitioner charges that in causing said bail-trover suit to be instituted against him, and in causing his arrest thereunder, and in persisting in the prosecution of petitioner under such process, the defendant company acted with malice, and with the purpose and desire to injure and damage petitioner, and-to obstruct and embarrass him in his rival business as aforesaid, and not for the purpose of collecting a debt or of securing itself against loss, as falsely claimed in said affidavit for bail process to issue.” Although the defendant had admitted its indebtedness to the plaintiff and had promised to apply such indebtedness in satisfaction of the said note, the defendant, without any warning to the plaintiff, wantonly and maliciously instituted and prosecuted this bail process against him and caused his arrest thereunder. The defendant,' in suing out such bail process, acted without probable cause, in that it knew that the plaintiff was not attempting to eloign or move away the said automobile, and further knew that he was not indebted to it in the amount of the said note or in any amount. The real motive and cause of such process being sued out and arrest made thereunder was to injure and embarrass him as representative of his then employer, and to take revenge upon him because he had left the employment of the defendant and had entered the employment of a rival concern. The defendant, “in thus employing bail process against him wrongfully and unlawfully and for the purpose of injuring him as aforesaid, a purpose not intended by law, was guilty of a malicious abuse of legal process.” He was forced to employ counsel at an expense of $25. For the humiliation of being thus placed under arrest and for having his standing and credit in the community thus impaired, he lays his punitive damages, together with the $25 actual damages as aforesaid, in the sum of $10,000.

Frank A. Hooper & Son, for plaintiff,

cited: King v. Yarbray, 136 Ga. 212, 213; Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294; Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 281; Dye v. Denham, 54 Ga. 224; 4 L. R. A. 256, and notes; 29 L. R. A. (N. S.) 272; 1 R. C. L. 109, 115; 86 Am. St. R. 407, note; Fenwick Shipping Co. v. Clarke, 133 Ga. 43; Finch v. Cox Co., 19 Ga. App. 256 (1).

Dorsey, Shelton & Dorsey, for defendant,

cited: Clement v. Orr, 4 Ga. App. 118,119, 120; Seamans v. Hoge, 105 Ga. 162; Porter v. Johnson, 96 Ga, 149; Mullins v. Matthews, 122 Ga. 289; 32 Cyc. 451-4; Allen v. Kinyon, 41 Mich. 281; cases cited for plaintiff, supra, distinguished.


text:
    11074.
    Southern Railway Company v. Corley.
    Decided May 5, 1920.
    Action for damages; from city court of Atlanta — Judge Reid. October 25, 1919.

      McDaniel & Black, for plaintiff in error.

      William E. Arnaud, contra.
   Stephens, J.

While a servant assumes the ordinary risks of his employment, which include not only such dangers as are within his knowledge but such as he can discover and foresee by the exercise of ordinary care, it cannot be said, as a matter of law, that an employee of a railroad company, while riding on top of a moving train upon a car higher than the other cars in the train and higher than those generally used by the railroad company, could discover and foresee the danger of being injured by coming in contact with an overhead bridge in the yard of the company, although he was aware of the extra height of the car upon which he was riding but without knowledge that on the high car he could not clear the bridge, and even though it appears that he was familiar with the railroad yard including the bridge and the distance of the bridge from the top of the cars ordinarily used by the company. The questions as to the negligence of the railroad and whether the servant could have avoided the consequences thereof by the exercise of ordinary care are for the jury. Stirk v. Central Railroad & Banking Co., 79 Ga. 495 (5 S. E. 105).

Judgment affirmed.

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


text:
    11077.
    Hines, director-general, v. Zellner.
   Jenkins, P. J.

1. The first contention of the plaintiff in error is decided adversely to him in the recent ruling of the Supreme Court in Robinson v. Central of Ga. Ry. Co., 150 Ga. 41 (102 S. E. 532).

2. The act of Congress of March 21, 191?, and the rules promulgated by Federal authority in pursuance thereof, while limiting the interference of government control of railroads by prohibiting the enforcement of judgments and decrees through attachment or levy, did not intend either to extinguish or impair, but on the contrary expressly preserved, the rights of parties to prosecute to judgment, in the name of the director-general of railroads, any cause of actions against the railroad companies to which they as parties were entitled under the Federal, State, or common law. See Dantzler Lumber Co. v. Texas & P. R. Co., 4 A. L. R. 1669, 1710, note; McAdoo v. Martin, 24 Ga. App. 485 (101 S. E. 312). Under the power thus given, the liability of the director-general is not limited to claims growing out of a breach of duty to safely transport freight and passengers.

Decided May 5, 1920.

Action for damages; from Monroe superior court — Judge Searcy. November 8, 1919.

Pursuant to an act of Congress of August 29, 1916 (9 Fed. Stat. Ann., 2d ed., 1095), which empowered the President, in time of war, to take possession and assume control of any system or systems of transportation and utilize them for the transportation of troops and materials of war, the President, on December 26, 1917, assumed control of the railroads of the United States and appointed as director-general of railroads William G-. McAdoo (then the secretary of the treasury). An act of March 21, 1918 (Fed. Stat. Ann. Supp. 1918, p. 757), which in detail recited how the control so granted the President should be exercised, provided as follows (see. 10) : “Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government.” A general order issued by the director-general on October 28, 1918 (No. 50), provided as follows: “Actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director-General of Eailroads, claims for death or injury to persons, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad or system of transportation by the Director General of Eailroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise.”

Judgment affirmed.

Stephens and Smith, JJ., concur.

In this case the widow of a person not a railway passenger or employee sought to recover damages for the homicide of her husband, alleged to have been occasioned by the negligent operation of a train at a public grade crossing. The action was originally against the Central of Georgia Railway Company, but by amendment Walker D. Hines, director-general of railroads of the Hnited States, was substituted as defendant, and he demurred to the petition, on the theory that such a suit was not maintainable against the director-general of railroads, because (1) the government is not liable to be sued for the tortious conduct of its employees, except in such cases as are authorized by act of Congress, and at the time of the alleged injury (January 31, 1918) there was no authority from Congress for the maintenance of a suit against the director-general of railroads; and (2) even if General Order No. 50 can be construed as authorizing an amendment making the director-general of railroads the defendant in the suit, the liability alleged in this case is not the liability of a common carrier, which includes only a breach of its duty to transport safely freight and passengers. The demurrer was overruled, and the defendant excepted.

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

James L. Anderson, Westmoreland & Westmoreland, contra.


text:
    11131.
    Garrett, for use, etc., v. Combs.
   Jenkins, P. J.

1. The exception taken to the refusal of the trial judge to strike the plea of the defendant is controlled hy the ruling made by this court in Southern Express Co. v. Chero-Cola Bot. Co., 24 Ga. App. 189 (100 S. E. 289); s. c. 150 Ga. 430 (104 S. E. 233). Under the facts of this case, which are similar to those there stated, the court did not err in the refusal to strike.

2. Where a fi. fa. is levied on personal property sufficient to pay the debt, and a forthcoming bond with security is given by the defendant in fi. fa., and where upon a claim being filed to the property the plaintiff in fi. fa. withdraws the original fi. fa., pending the claim proceeding, and levies upon additional property of the defendant, and under the second levy another forthcoming bond with new sureties is given, upon a suit brought upon the second bond a verdict in favor of the defendants would he authorized where it appears that upon a suit on the first forthcoming bond the plaintiff compromised with the solvent surety thereon by accepting from him a certain sum in satisfaction of all liability on his part. Under such a state of facts the previous levy remains unaccounted for, and, so far as the sureties on the second bond are concerned, amounts to a satisfaction of the fi. fa. Civil Code (1910), §§ 6047, 6048.

Decided May 5, 1920.

Adhered to on rehearing, September 17, 1920.

Action on bond; from city court of Carrollton — Judge Beall. November 3, 1919.

C. E. Roop, Boykin & Boykin, for plaintiff.

S. Holderness, Leon Hood, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11134.
    Louisville & Nashville Railroad Co. v. Chastain.
    Decided May 5, 1920.
    Action for damages; from Fannin superior court — Judge Morris. October 22, 1919.

      Tye, Peeples & Tye, D. W. Blair, William Butt, for plaintiff in error.
   Jenkins, P. J.

There was a verdict and judgment in the court below in favor of a shipper of live stock, for loss and damage alleged to have been occasioned by the negligent handling of the shipments by the defendant railroad company. Error is assigned upon the overruling of the motion for a new trial, based solely upon the general grounds'. While the plaintiff’s evidence is, to our minds, somewhat vague, the verdict has the approval of the trial judge, and we would not feel justified in holding that it is without any evidence to support it. See Heath v. Sandersville R. Co., 23 Ga. App. 255 (98 S. E. 93).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11136.
    Reddick v. Strickland.
   Smith, J.

1. “Exceptions pendente lite cannot be considered unless error is assigned thereon either in the main bill of exceptions or in the reviewing court by counsel for plaintiff in error before argument begins.’’ Jones v. State, 21 Ga. App. 22 (1) (93 S. E. 514). See also Kent v. State, 18 Ga. App. 30 (88 S. E. 913) ; Shaw v. Jones, 133 Ga. 446 (66 S. E. 240) Nicholls v. Popwell, 80 Ga. 604 (9) (6 S. E. 21). The bill of exceptions in this case recites that exceptions pendente lite were ■ duly taken to the overruling of a special demurrer and to the overruling of a motion to strike an amendment to tlie petition, but no assignment of error thereon is made either in the bill of exceptions or in this court, and the judgment overruling the demurrer and’the motion to strike cannot be considered.

Decided May 5, 1920.

Complaint; from city court of Cairo — Judge Rigsby. November 24, 1919.

Ledford & Christopher, for plaintiff in error.

S. P. Cain, contra,

2. Where exceptions pendente lite are ■ taken and error is not assigned thereon' in the bill of exceptions, and the exceptions pendente lite are brought up in the record, counsel should, before argument begins in this court, assign error thereon. If counsel -waits to do so until after the original argument and while the ease is pending on motion to rehear, it is too late. Nicholls v. Popwell, supra; Stover v. Adams, 114 Ga. 171 (1) (39 S.E. 864).

3. Where the defendant, by demurrer and motion to strike, brought in question the sufficiency of the description of the currency sought to be recovered, and in the bill of exceptions no assignment of error was made as to the judgment overruling the demurrer and motion, that decision became the law of the ease, binding alike upon the parties and the court. See Grantham v. Fleming, 13 Ga. App. 184 (2) (78 S. E. 1113) ; Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. Rep. 190) ; Cooper v. Chamblee, 114 Ga. 116 (39 S. E. 917).

4. The exceptions to the charge of the court on the subject of fraud arc without merit. The court, after reading to the jury the code definitions of actual, constructive, and legal fraud (Civil Code of 1910, §§ 4622, 4623), instructed them that “in this case there must be the misrepresentation of a material fact, made wilfully to deceive, recklessly without knowledge, and acted on by the opposite party, in order for that to be applicable.”

5. There being evidence to support the allegations as made in the petition, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11163.
    Avera v. State of Georgia.
   Stephens, J.

1. Under the prohibition act approved March 28, 1917 (Ga. L. Ex. Sess. 1917, pp. 7, 17), providing for the condemnation of vehicles engaged in the transportation, along the public roads or private ways of this State, of liquors or beverages the sale or possession of which is prohibited by law, only a court having jurisdiction in the county where the vehicle is seized has jurisdiction of the condemnation proceedings. It follows, therefore, that in order to confer jurisdiction upon the court in which condemnation proceedings are instituted against such a vehicle under this act, it must affirmatively appear that the vehicle was seized within the county over which the court has jurisdiction.

Decided May 5, 1920.

Condemnation under liquor law; from Fulton superior court — Judge Humphries. October 30, 1919.

Robert C. & Philip H. Alston, Blair Poster, for plaintiff in error.

Hughes Roberts, contra.

2. The city of Atlanta being in both the counties of Fulton and DeKalb, evidence to the effect that the seizure was made near the corner of certain streets in the city of Atlanta does not affirmatively show that the seizure was made in the county of Fulton.

3. It not appearing that the vehicle sought to be condemned was seized in the county of Fulton and within the jurisdiction of the court, and an exception to the failure to prove the venue having been properly made as provided in an act approved August 21, 1911 (Ga. L. 1911, pp. 149, 150, Park’s Penal Code, § 1101 (a)), the judgment condemning the automobile and ordering it sold was without evidence to support it and contrary to law.

Judgment reversed.

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


text:
    11177.
    Kelley v. Overland Sales Company.
    Decided May 5, 1920.
   Stephens, J.

1. An instrument executed by the purchaser of personal property to the seller, wherein it is agreed that the title to the property is to remain in the seller until paid for, that the purchaser upon default of the payment of the notes when due is to be responsible for the delivery of the property to the seller, and that the purchaser is to hold and possess the property as a bailee for hire, is not a bill of sale by the purchaser to the. seller, but is a conditional sale by the seller to the purchaser, the same being a contract of sale with a reservation of title by the seller for the purpose of securing the indebtedness. Such instrument is not converted into a bill of sale from the purchaser to the seller by an additional provision that the purchaser bargains, sells, transfers, and conveys the property to the seller and warrants the title. Wynn v. Tyner, 139 Ga. 765 (78 S. E. 185); Berry v. Robinson, 122 Ga. 575 (50 S. E. 378); Civil Code (1910), § 3318; Bacon v. Hanesley, 19 Ga. App. 69 (90 S. E. 1033) ; Lankford v. Peterson, 21 Ga. App. 1, 10, 11 (93 S. E. 499).

2. Such instrument, being neither a mortgage nor a bill of sale to secure debt, cannot be foreclosed by the summary statutory method provided in. the Civil Code (1910), §§ 3293, 3298.

Judgment reversed.

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

Foreclosure of mortgage; from Marion superior court — Judge Howard. October 27, 1919.

W. D. Crawford, for plaintiff in error.

McCutchen & Bowden, contra.


author: Smith, J,

text:
    11396.
    Smith v. Exchange Bank of Rome et al.

    Decided May 5, 1920.
    Appeal; from Floyd superior court — Judge Wright. January 28, 1920.
    1. Mrs. Nora Z. Smith applied to the ordinary for a homestead under sections 3377 et seq. of the Civil Code of 1910, and objections were filed by certain creditors. There was an appeal to the superior court by the applicant and on the call of the case her counsel moved to continue the case on account of her sickness. Her husband testified that she was sick and unable to attend court, and had been sick about three days, and that it would be dangerous for her to come to court that day; that the case had previously bee;] continued, and he was in court at the January term, 1918, when the judge announced that the case would not be continued again on account of the illness of Mrs. Smith. In an order granting a continuance at that term it was stated that the case “is continued on the understanding that if the applicant is unable to attend the court at the next succeeding session, then the said applicant’s interrogatories shall be taken before next succeeding term, so that the objectors to the application may be assured of a hearing at the next succeeding term.” It was testified that the case had been continued at least twice on account of sickness of the applicant. Counsel for the applicant stated in his place that he could not safely go to trial without her presence, that he needed her advice in striking a jury, in examining witnesses, and in the general conduct of the case, as well as her testimony in her own behalf. The court overruled the motion for continuance, and directed that the appeal be dismissed for want of prosecution. The case came to the Court of Appeals on exceptions to these rulings.
   Smith, J,

1. The trial judge did not abuse his discretion in overruling the motion for a continuance; it appearing, on the showing for continuance and the counter-showing, that the case had been continued one or more times for the same reason, and it also appearing that by an order of the court the case had been put on terms.

2. “ A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to him but to another, lie should dismiss his application and file another one, omitting such articles of property not belonging to him as were in the previous schedule.” McWilliams v. Bones, 84 Ga. 199 (1) (10 S. E. 723).

3. Under the above ruling the court below should have dismissed the case, and not the appeal. The judgment of the court below is therefore affirmed, with direction that the ease be dismissed on the ground that the petition for homestead had been amended by striking therefrom the real estate set out in the amendment.

Judgment affirmed, with direction.

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

2. The schedule of property which the applicant in her petition asked to have set apart as a homestead included several city lots. One of the objections filed by creditors was that the title to one of these lots was not in the applicant, but in an objecting creditor. The applicant amended the application by withdrawing it as to that lot. One of the objecting creditors then filed a motion that the application be dismissed, because the applicant had amended it by striking from it a considerable part of the property.

Max Meyerhardt, for plaintiff in error.

T. W. Lipscomb, contra.


text:
    11406.
    Avera Loan and Investment Company v. Yopp.
    Decided May 5, 1920.
    Foreclosure; from city court of Dublin — Judge Flynt. February 23, 1920.
   Smith, J.

1. Where an instrument appears on its face to he an absolute bill of sale to personalty, but does not contain a defeasance clause, and (as the agreed statement of facts shows) was not accompanied by an actual or constructive delivery of the property into the possession of the vendee, extrinsic evidence is admissible to show that what appears to be a bill of sale was intended only as a security for debt. Denton v. Shields, 120 Ga. 1078 (48 S. E. 423) ; Pitts v. Maier, 115 Ga. 285 (41 S. E. 570) ; Ellison v. Wilson, 7 Ga. App. 214 (66 S. E. 631).

2. The instrument being an equitable mortgage, it was error for the court to dismiss the plaintiff’s affidavit to foreclose the same on the ground that he was proeeding illegally.

Judgment reversed.

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

The Avera Loan and Investment Company filed in the city court an affidavit to foreclose as a mortgage an instrument in the form of a promissory note for $398 principal, with a clause as follows: “I hereby grant, bargain, sell, alien, and convey unto the said” payee “the following described property,” describing certain personal. property. It was attested by a notary public. The plaintiffs bill of exceptions states that “defendant moved orally to dismiss said proceeding, on the ground that plaintiff was proceeding illegally, contending that said instrument is not a mortgage, but a bill of sale. . . Plaintiff asked leave of the court to submit oral testimony to prove the nature and intent of the instrument in question, on the ground that said instrument is ambiguous. If witnesses had been permitted to testify as to the nature and intent of this instrument, they would have testified as follows: that it was the intent of the parties to create a-mortgage lien on the property specified in the instrument; that the creation of a bill of sale 'and the transfer of the legal title to the property was not within the intent or anticipation of the parties; that it was the purpose of the parties to execute a mortgage and that the instrument so executed should operate as a mortgage; that the mortgagee has never been in the actual or constructive possession of the property, and that it was never the intention of the parties that the property should ever be delivered into the possession of the mortgagee. Upon the objection of the defendant, the court refused to allow oral testimony to be submitted. . . The motion to dismiss plaintiff’s proceeding was heard on the following agreed statement of facts: that the property has remained in the possession of the defendant and has at no time been in the actual or constructive possession of plaintiff.” The motion to dismiss the proceeding was sustained, and the plaintiff excepted, assigning error upon each of the rulings stated.

J. S. Adams, C. C. Youmans, for plaintiff,

cited: (1) 130 Ga. 271; 7 Ga: App. 214; 106 Ga. 361; 120 Ga. 1078 (2); 18 Ga. App. 48; 144 Ga. 354, 355, 356.

S. W. Sturgis, for defendant,

cited: Civil Code (1910), § 3298; 115 Ga. 285; 114 Ga. 270; 120 Ga. and 7 Ga. App., supra.


text:
    10179.
    WHEELER v. ATLANTIC COAST LINE RAILROAD COMPANY et al.

    Decided May 11, 1920.
    Under the ruling of the Supreme Court in the ease of Robinson v. Central of Georgia Railway Co., 150 Ga. 41 (102 S. E. 532), the court in this ease erred in sustaining the motion to dismiss the suit as to the Atlantic Coast Line Railroad Company. See 150 Ga. 109 (102 S. E. 823).
    Action for damages; from city court of Thomasville — Judge W. H. Hammond. September 19, 1918.

      Titus & Dekle, for plaintiff.

      Bennet & Branch, Merrill & Grantham, for defendant.
   Bloodworth, J.

This was a suit for damages for the homicide of the plaintiff’s husband and was brought against the Atlantic Coast Line Railroad Company and three of its employees. .Upon the call of the case the defendant company made a motion in writing to dismiss the action, so far as it was concerned, upon the following grounds: “ (1) The petition of the plaintiff shows that the cause of action for which she sues to recover damages arose out of the homicide of the plaintiff’s husband, Ransom C. Wheeler, it being alleged in said petition that the said Ransom C. Wheeler was run over and killed by certain box-cars attached to an engine being operated by Charlie Griffin as engineer, Link Wright as fireman, and Simon Cook as flagman, and that said engine being operated by said engineer, fireman, and flagman was owned and operated by the defendant Atlantic Coast Line Railroad Company, by and through its agents and employees aforesaid. (3) The defendant is not liable to the plaintiff in damages as alleged in the petition, because the petition alleges that said Ransom C. Wheeler was run over and killed on the 3d day of January, 1918, and on December 38, 1917, at 13 o’clock noon, the President of the United States, through Newton D. Baker, secretary of war, took possession of and assumed control of each and every railroad system in the United States, including the line of railroad of the defendant, and that since said date the line of railroad of the defendant has been operated by the government of the United States, through the director-general of railways and his subordinate officers and agents; and this defendant was not operating said railroad, or in the possession or control of same, or any of its railroad properties, and had no agents or employees in charge oí its railroad properties, but that the agents who are alleged to have been operating said engine were the agents and employees of the United States railroad administration, W. G. McAdoo, director-general of railroads, working for the Atlantic Coast Line Railroad under Lyman Delane, federal manager for said Atlantic Coast Line Railroad, and were not the agents or employees of the defendant.” Upon consideration of the motion the court sustained it and dismissed the suit as to the Atlantic Coast Line Railroad Company.

Under the ruling of the Supreme Court in Robinson v. Central of Georgia Ry. Co., 150 Ga. 41 (102 S. E. 532), there was no merit in the motion to dismiss, and the court erred in sustaining it.

Judgment reversed.

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