text:
    10956.
    GENERAL FIRE EXTINGUISHER CO. v. DANIEL et al.

    Decided May 11, 1920.

      [a) The allegations of the petition clearly show that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of his injury!
    (&) “Negligence, to be the basis of recovery, must be the proximate cause of the injury; and if the injury would have occurred regardless of the negligent act, there can be no recovery.”
    (c) “In a suit for damages on account of personal injuries, brought by a servant against his master, where, among various allegations of negligence, it is charged that the defendant failed to furnish the plaintiff a reasonably safe place in which to work, and it affirmatively appears from the petition that the plaintiff’s injuries were not caused by the character of the place in which he was put to work, or in any manner connected therewith, such an allegation of negligence can not be made the basis of a recovery.”

      (d) “If the danger be obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.”
    Action for damages; from city court of Polk county — Judge Tison. September 25, 1919.

      McDaniel & Black, for plaintiff in error.

      William W. Mundy, Bunn & Trawick, contra.
   Bloodworth, J.

So far as the bill of exceptions shows, only one of the defendants filed a demurrer to the petition. The learned judge who presided overruled the demurrer, and in his order stated the allegations of the petition and his reasons for overruling the demurrer, as follows:

“Plaintiff brings this action against the Noble-Beveridge Company and the General Fire Extinguisher Company for the homicide of her husband. The defendant General Fire Extinguisher Company filed a general demurrer to the petition, on the ground that no cause of action was set forth against it. The original petition alleges, that while the deceased was working in a pit or excavation some eight feet deep, installing machinery as the servant of the General Fire Extinguisher Company, the excavation being immediately at the junction of two platforms over which truckmen of the Noble-Beveridge Company were conveying bales of cloth, he was killed by one of the truckmen negligently operating the trucks, causing a bale of cloth to be thrown from the trucks into the pit and on the deceased; that in trucking the bales of cloth from one platform to the other, which met at right angles, the centrifugal force brought about by running the trucks 'around or from one platform to the other caused the bale of cloth to be thrown from the trucks into the pit and on to the deceased, thereby causing his death. The petition as amended alleges, that the deceased was at labor installing the machinery in the pit; that his work required him to stoop over and look downward at the machinery being installed; that he could not see or know what was taking place outside the pit; that he could not know that the platform was being used at all; that his master knew or ought to have know of its use and the danger incident to its use; that he was not warned of the danger; that he could not have discovered the danger by ordinary care. It is alleged that the master was negligent in failing to provide a reasonably safe place for deceased to work; in failing to exercise ordinary care in the use of the platform while deceased was at work in the pit; in failing to warn deceased of the danger; that the master was negligent by its failure to protect the deceased by proper guard-rails or other means while he was at work in the pit, and that these acts of negligence of the master in failing to provide a reasonably safe place for deceased to work were the proximate cause of his death. There are other allegations, but these are all essential for the consideration of the demurrer.
“ The demurrer raises the question as to the proximate cause of the homicide. If the proximate cause be the negligence of the servant of the Noblc-Beveridge Company, then it is clear that the demurrer should be sustained. If the proximate cause is the failure of the master to provide a reasonably safe place, then the plaintiff may recover. ‘ Questions of negligence are for the jury alone, and the determination of the proximate cause is involved in and essential to the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. A court can no more determine upon an issue as to what particular act or circumstance was the proximate cause of an alleged injury than it can determine that the same particular act was 'an act of negligence White v. S. A. L. Ry., 14 Ga. App. 139 (80 S. E. 667). If the alleged negligent act of the master contributes to the injury of the servant by his failure to provide a reasonably safe place, then the servant may recover, although there may be an intervening negligent act of a third person. ‘If the negligence of the master contributes to the injury of the servant, it must necessarily became an immediate cause of the injury, and it is no defense that another is likewise guilty of wrong Cheeney v. Ocean Steamship Co., 92 Ga. 732 (19 S. E. 33, 44 Am. St. Rep. 113), and cases cited. ‘The rule that the servant takes the risk incident to his work does not exempt the master from liability for the death of a servant resulting from a negligent failure to provide a safe place, if the servant is free of contributory negligence Middle Ga. & A. Ry. Co. v. Barnett, 104 Ga. 582 (30 S. E. 771). The petition as amended makes it issuable 'as to proximate cause and the acts of negligence; therefore the demurrer is overruled.”

There can be no difference between the trial judge and this court as to the general principles announced in his order copied above. They are the fixed law of the State. We differ with him, however, in their application to this case. Where the allegations of the petition clearly show that the proximate cause of the injury was the act of a third person, to which no act of the defendant contributed, no issue of fact is raised which should be submitted to the jury, and the petition should be dismissed. Eliminating the conclusions of the pleader and admitting every fact alleged in the petition to show negligence, the plaintiff would not be entitled to recover, for no fact alleged shows that any negligence on the part of the defendant was the proximate cause of, or had anything to do with, the injury to tbe deceased, but it is clearly shown by the petition that the proximate cause of the injury was the act of the servant of the other defendant in the case, the Noble-Beveridge Company, in negligently throwing the heavy bale of duck from its platform into the pit on the deceased. In his order the trial judge correctly said: “If the proximate cause be the negligence of the servant of the Noble-Beveridge Company, then it is clear that the demurrer should be sustained.” In Shaw v. Mayor &c. of Macon, 6 Ga. App. 306 (64 S. E. 1102), it was held: “The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, preponderating or proximate cause of his injury, the court did right in sustaining a demurrer and dismissing the petition.” See also Ayers v. L. & N. R. Co., 5 Ga. App. 456 (63 S. E. 530); Sou. Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Corley v. Cobb County, 21 Ga. App. 219 (93 S. E. 1015); Harper v. Fulton Bag & Cotton Mills, 21 Ga. App. 322 (94 S. E. 286); Charleston & Western Carolina Ry. Co. v. Patton, 22 Ga. App. 554, 556, 557 (96 S. E. 504); Higginbotham v. Rome Ry. & Light Co., 23 Ga. App. 753, 755 (99 S. E. 638); Crown Cotton Mills v. McNally, 123 Ga. 35 (2, 3) (51 S. E. 13).

While the petition alleges that the General Eire Extinguisher Company failed to furnish the deceased with a reasonably safe place to work, it is also clear from the allegations of the petition that the injury was not caused by the character of place in which he was working. “In a suit for damages on account of personal injuries, brought by a servant against his master, where, among various allegations of negligence, it is charged that the defendant failed to furnish the plaintiff a reasonably safe place in which to work, and it affirmatively appears from the petition that the plaintiffs injuries were hot caused by the character of the place in which he was put to work, or in any manner connected therewith, such an allegation of negligence can not be made the basis of a recovery.” Moseley v. Schofields Sons Co., 123 Ga. 197 (1) (51 S. E. 309). Defendant is alleged to have been negligent in failing to provide guard-rails around the pit in which deceased was working. It is clear from the allegations of the petition that such rails, had they been there, would not have protected the deceased against the heavy bale of duck. “Negligence, to be the basis of recovery, must be the proximate cause of the injury; and if the injury would have occurred regardless of the negligent act, there can be no recovery.” Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (4) (58 S. E. 413).

If there had been any defect in the pit which was known to the master and unknown to the servant, and of which the servant did not have equal opportunity with the master of knowing, and that defect caused the death of the servant, then the plaintiff could predicate negligence upon an allegation that the servant had been sent to work in a place which not was “reasonably safe,” but, under the allegations of fact in the petition, the pit was within itself a perfectly safe place to work, and nothing in its condition contributed to the death of deceased, and no negligence relative to it concurred with the alleged negligence of the other defendant. The petition does not show that prior to this accident there had ever been any goods thrown from the platform to the ground where the pit was by the running of the trucks, and nothing is alleged that would put the defendant on inquiry as to such possible occurrence. This defendant had a legal right to rely upon the exercise of care on the part of its codefendant. This was “ a totally unanticipated, isolated act of negligence,” and neither railings nor warning would have been of avail. In addition to the above, the deceased had equal opportunity with the master of knowing the condition of the platform, its location relative to the pit, and the use to which it was being put and about which negligence is alleged, and he voluntarily assumed the risk. VanDyke v. Menlo Fruit Co., 129 Ga. 532 (1) (58 S. E. 215). “If the danger be obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.” Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (1) (68 S. E. 483). See also Holland v. Durham Coal & Coke Co., 131 Ga. 715 (2) (63 S. E. 290); Postal Telegraph Cable Co. v. Keeley, 134 Ga. 218 (67 S. E. 803).

We think the foregoing principles are controlling in this case, and that the trial judge erred in overruling the demurrer to the petition.

Judgment reversed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    11022.
    HARDY v. THE STATE.
    Decided May 11, 1920.
    “ When a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals the former enactments, without any express provision to that effect. Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation if ii? clearly appears to have been the intention of the legislature to cover the whole subject by the revision.”

      (a) It was the evident intent of the legislature that section 10 of the act of 1915 (Ga. L. Ex. Sess. 1915, p. 112) should be exhaustive of the entire subject of regulating the speed of all auto-vehicles and automobiles, and should operate as a substitute for section 5 of the act of 1910 (Ga. L. 1910, p. 92).
    Conviction of manslaughter; from city court of Eloyd county — Judge Nunnally. October 20, 1919.

      Denny & Wright, for plaintiff in error.
    J. F. Kelly, solicitor, contra.
   Bloodworth, J.

The accusation contains two counts, but, as there was an acquittal under the first count, this discussion will be confined to the second, which charges that the accused did “operate and drive a certain automobile upon and over a public highway in said county, to wit, the Summerville public road, and at a point on said' Summerville public road where said road intersects the Texas Valley public road in said State and county, at a greater rate of speed than ten miles per hour.” The defendant demurred to the second count of the accusation, as follows: “ First: Said count sets forth no cause of action against this defendant. Second: Because no crime in this State is charged in said count, and there is no crime in this State of operating an automobile by intersecting roads at a greater rate of speed than ten miles per hour.” This demurrer was overruled and the defendant excepted.

The only question for our determination is: Does the act of 1915 repeal that portion of the act of 1910 which relates to the speed of automobiles at intersecting roads? We think it does. It was the evident intent of the legislature that section 10 of the act of 1915 (Ga. L. Ex. Sess. 1915, p. 112) should be exhaustive of the entire subject of regulating the speed of all auto-vehicles 'and automobiles, and should operate as a substitute for section 5 of the act of 1910 (Ga. L. 1910, p. 92). Section 5 of the act of 1910 is as follows: “That no person shall operate a machine on any of the highways of this State as described in this act at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings,, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour.” Section 10 of the Act of 1915 is in part as follows: “No person shall operate a motor-vehicle or a motor-cycle upon any public street or highway at a speed greater than is reasonable and safe, not to exceed a speed of thirty miles per hour, having due regard for the width, grade, character, traffic and common use of such street or highway; or so as to endanger life, limb, or property in any respect whatever. Upon approaching any bridge, railroad-crossing, dam, sharp curve, dugway or deep descent, or in traversing such bridge, railroad-crossing, dam, curve, dugway or descent, the operator of a motor-vehicle or motorcycle shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour.”

It will be noted that section 5 above referred to embraces “ high embankments” and “intersecting highways,” and fixes the rate of speed at “ not greater than six miles per hour,” while these places are not mentioned in section 10 of the act of 1915, which names “dugway” (which is not in the act of 1910), and fixes the rate of speed at “not greater than ten miles per hour.” In Butner v. Boifeuillet, 100 Ga. 743 (28 S. E. 464), Justice Atkinson (p. 750) quoted from the case of Butler v. Russel, 3 Clifford, 251, in which Justice Clifford of the Supreme Court of the United States, presiding on the circuit bench, laid down the following rule: “ Where the provisions of the old statute are revised in the later enactment, and where the later statute was intended to prescribe the only rules upon the subject, the subsequent is held to repeal the former statute. When a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals the former enactments, without any express provision to that effect. Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation if it clearly appear to have been the intention of the legislature to cover the whole subject by the revision. In Johnson v. Southern Mutual Building and Loan Asso., 97 Ga. 622 (25 S. E. 358), Chief Justice Simmons said: “Kepeals by implication, however, are not favored; and it is only in so far as a statute is.clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two cannot stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it [italics ours], that such a repeal will be held to result:” In Horn v. State, 114 Ga. 510 (40 S. E. 769), Chief Justice Simmons thus states the principle: “ The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise 'a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.” See also Miller v. Southwestern Railroad Co., 55 Ga. 143; Kennedy v. McCardel, 88 Ga. 454 (14 S. E. 710); Gress Lumber Co. v. Coody, 99 Ga. 778 (27 S. E. 169); Jones v. Stokes, 145 Ga. 749 (89 S. E. 1078), and cit.

■ Applying the principle announced in the foregoing decisions, we hold that the judge erred in overruling the demurrer; and this rendered the subsequent proceedings nugatory.

Judgment reversed.

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


author: BLOODWORTH, J.

text:
    11097.
    JONES et al. v. STYLES et al.

    A ground of a motion for a new trial, alleging that certain “ material evidence,” consisting of a document set out therein, “ was illegally withheld from the jury,” and stating that the movants insisted that for reasons set out the document was admissible as evidence, but not showing what objection was made to its introduction in evidence, is not in proper form for consideration by this court.
    Refusal to admit in evidence the return of the processioners and the accompanying plat of the surveyor was not ground for a new trial. A protest to the return was pending in the superior court; and if the exclusion of the return and plat was error, ‘the error was harmless, in view of uncontradieted testimony as to their contents by two of the processioners and the surveyor. Besides, the return and the plat were indefinite and failed to show the line marked out.

      Decided May 11, 1920.
    The verdict was not unsupported by evidence; and, the trial judge having approved it, this court can not disturb it.
    Action for damages; from Gordon superior court — Judge Tarver. September 27, 1919.
    S. A. Jones and others were sued jointly for damages on account of the cutting of a shade tree and the destruction of apart of a fence; and the verdict was against them. From the evidence it appeared that t'he land of Jones was in land lot No. 109 and adjoined that of the plaintiffs, which was in land lot No. 110, and there was conflict in the testimony as to whether the tree and the fence were in land lot No. 109 or in lot No. 110. The only ground of the motion for a new trial, besides the general grounds, was as follows: “Because the following material evidence was illegally withheld from the jury, to wit: the return of the processioners, together with certified plat of the surveyor, showing the true line between lots of land number 109, 110, as run and marked by the processioners and county surveyor; movants in their defenses insisting that the tree alleged to have been cut and the garden fence alleged to have been moved were on the lands of S. A. Jones; movants further insisting that the location of the dividing line between the litigants was relevant to the matter in controversy, and that therefore the return of the processioners and the county surveyor was admissible in evidence, and that said return and plat was admissible to illustrate the evidence of the survey- or and the processioners who marked the line and testified in this case relative thereto. Note by the court: It was admitted by counsel for the parties that a protest to the return of the processioners had been filed by plaintiffs, which cause was pending in Gordon superior court.” A copy of the return and of the plat was attached to this ground of the motion.

      J. G. B. Erwin, Starr & Paschal, for plaintiffs in error.

      A. L. Henson, contra.
   BLOODWORTH, J.

1. In the special ground of the motion for a new trial complaint is made of the rejection of a certain return made by processioners and the certified plat of the county surveyor accompanying the return. In Central of Georgia Ry. Co. v. Jaques & Tinsley, 23 Ga. App. 396 (2) (98 S. E. 357), it is held: “ The assignment of error based upon the sustaining of the defendant’s objections to certain documentary evidence, and the exclusion of the evidence, is too indefinite to raise any question for consideration by this court, as it does not show what were the objections sustained by the court, nor wherein the court erred in sustaining them in excluding the evidence.” See also Steed v. Cruise, 70 Ga. 168 (4). Under the above ruling this court is not called upon to consider the special ground of the motion, as it does not show what objections were made to the introduction of the evidence, but shows only the reason urged why its introduction was proper. However, the trial judge appends the following note to the special grounds of the motion: It was admitted by counsel for the parties that a protest to the return of the processioners had been filed by plaintiff, which cause was pending in Gordon Superior Court.” Granting that it was error to reject the evidence offered, it was harmless, as two of the processioners and the surveyor swore to all that was contained in the return and shown by the plat, and this evidence as to the contents of the return and plat was not contradicted. Besides, the return and the plat are indefinite and do not show what line was marked out by the processioners and run by the surveyor.

2. It can not be said that there was no evidence to support the verdict; the presiding judge approved the finding of the jury, and we must accept it.

Judgment affirmed.

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


text:
    11120.
    WATTS v. WIGHT INVESTMENT COMPANY.
    Decided May 11, 1920.
    1. A bill of sale of personalty to secure the payment of a debt, which recites that “ this is a deed conveying title, and a bond to reconvey is this day given,” is not a mortgage, but a conveyance passing title until payment of the debt; and trover may be based thereon.
    2 Evidence offered for the purpose of showing that the defendant had been ^/adjudicated a bankrupt and that the plaintiff had been listed as a / creditor was properly excluded.
    3. A homestead exemption taken under section 3415 et seq. of the Civil Code (1910) will not avail as against a valid title previously conveyed by a bill of sale executed to secure a debt.
    Certiorari; from Pulton superior Court — Judge Pendleton. October 2, 1919.

      R. B. Blackburn, for plaintiff in error.

      E. M. Habersham, R. R. Jackson, W. I. Heyward, contra.
   Bloodworth, J.

1. Wight Investment Company brought an action in trover in the municipal court of Atlanta against Watts, to recover certain personal property, attaching to the petition a bill of sale to secure the payment of a debt, and which recited that “this is a deed conveying title and a bond to reconvey is this day given.” There was a trial and a judgment for the plaintiff. The 1 petition for certiorari recites that “ upon the call of said case for a hearing, the defendants, by and through their attorneys, made a motion before the court to dismiss said case, on the ground that, under the petition as set forth in said case, plaintiff could not recover in trover in an action sounding in debt instead of in trover.” The court did not err in overruling this motion. This was the proper remedy, under the facts of this case. “A bill of sale of personalty to secure a debt, although it contains a clause to reconvey the property upon the payment of the debt, is not a mortgage, but is an absolute conveyance of the property, and passes title to the same until the debt is fully paid. Civil Code, § 3306; Owens v. Bridges, 13 Ga. App. 419 (79 S. E. 225).” Hill v. Marshall, 18 Ga. App. 662 (1) (90 S. E. 175); see also Bellerby v. Thomas, 105 Ga. 477, 478 (l) (30 S. E. 425).

2. Defendant alleges that the trial court erred in rejecting as evidence “ a certified copy from the Federal district court showing that he had been adjudged a bankrupt,” and that “plaintiff had been listed as a creditor of the defendant.” Under the facts of this case this was not error. “ In an action of trover the issue is one of title, and not of debt. Consequently, neither the defendant in such an action, wherein bail is required, nor the surety on his bond can set up as a defense the discharge of the defendant in bankruptcy pending the action. This is true although the plaintiff elects to take a money verdict for the damages alleged to have been sustained.” Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. Rep. 102).

3. The bill of sale is dated February 5., 1919. Defendant tendered as evidence a certified copy of a homestead exemption set apart on March 4, 1919, under section 3416 et seq. of the Civil Code of 1910. The certified copy was rejected as evidence, and this is alleged to be error. It is settled law in this State that as against a valid title to secure a debt, a homestead subsequently taken will avail nothing. Mozley v. Fontana, 124 Ga. 378 (52 S. E. 443), and cit.

4. The above rulings dispose of all questions made by the pleadings and which were argued in the brief of counsel for the plaintiff in error. We therefore hold that the judge of the municipal court of Atlanta properly rendered judgment in favor of the plaintiff, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    11125.
    BELLE ISLE v. KINDIG.
    Decided May 11, 1920.
    1. A cause of action for damages against an automobile owner, sued jointly with a- street-railway company, is stated by allegations to the effect that a car of the street-railway, running at excessive speed, struck his automobile and drove it against an automobile from which the plaintiff was alighting, and injured her, it being alleged that his servant who' was driving his automobile was negligent in failing to keep a proper lookout to prevent the striking of his automobile by the streetcar, and in driving into the way of the street-car..
    2, 3. In view of the entire charge of the court and the facts of the case, there was no ground for a now trial in the instructions complained of, or in the refusal of requests to charge.

      i. If there was error in allowing certain hypothetical questions put to a witness, and the answers to them, the error was cured by the charge of the court.
    5. The verdict was supported by evidence and was approved by the trial judge, and, there being no harmful error of law, this court has no authority to disturb it.
    Action for damages; from Fulton superior court — Judge Pendleton. October 23, 1919.
    The petition alleged, in substance, that when the plaintiff was alighting from an automobile in front of a hotel in the city of Atlanta, with her baby in her arms, an automobile owned by the defendant Belle Isle and driven by his servant was struck by a street-car of the defendant railway company and by the force of the collision was driven into the automobile from which she was alighting, injuring her in a manner described; to her damage in the sum of $10,000; that her injuries were the result of the joint and several negligence of the defendants; that the defendant railway company was negligent in that its car when it struck Belle Isle’s automobile was being run at reckless and dangerous speed, in violation of an ordinance of the city of Atlanta limiting the speed of street-cars to 15 miles an hour, and in violation, of the right of occupants of the street to use necessary parts of it without being endangered by such illegal use of the street; and that the defendant company was further negligent in that failed to check the speed of its car so as to avoid collision with the automobile when it saw or in the exercise of ordinary care should have seen that Belle Isle’s automobile was turning upon the railway track; that Belle Isle was negligent in that his servant in charge of his automobile failed to keep a proper lookout to prevent the striking of his automobile by the street-car, and in that his servant negligently drove into the way of the street-car so that his automobile was knocked against the automobile occupied by the plaintiff.

      Smith, Hammond & Smith, for plaintiff in error.

      Arminius Wright, contra.
   Bloodworth, J.

1. Suit for damages on account of personal injuries was instituted against A. L. Belle Isle and the Georgia Railway & Power Company. During the trial and before the case was submitted to the jury, defendant Belle Isle moved the court to dismiss the case as to him, because the plaintiff’s petition set forth no cause of action as to him. This motion was properly overruled.

2. Grounds 1, 2, and 3 of the amendment to the motion for new trial complain that certain excerpts from the charge are erroneous, but when these excerpts are read in the light of the entire charge and the facts of the case, we find in them no error demanding the grant of a new trial.

3. Special grounds 4 to 16, inclusive, and 18 all allege error “because the court did not charge the jury literally or in substance” certain specified propositions of law. The material issues of the case were clearly and correctly covered by the charge given, and if fuller instructions on any given point were desired, a proper and legal request therefor should have been made in writing before the jury retired to consider of their verdict, as required by § 6084 of the Civil Code of, 1910.

4. If error was committed in allowing the hypothetical question and the answer to it as set out in the 17th special ground of the motion for new trial, the error was cured by the charge of the court.

5. There was ample evidence to support the verdict for the plaintiff, which has the approval of the trial judge, and, as no harmful error of law was committed, we have no authority to disturb it.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    Belle Isle v. Kindig.
    Decided May 11, 1920.
    Action for damages; from Fulton superior court — Judge Pendleton. October 23, 1919.
    This action was by the husband of the plaintiff in the case of Belle Isle v. Kindig, ante, 293. The material allegations were the same in both eases, and the cases were tried' together.

      Smith, Hammond & Smith, for plaintiff in error.

      Arminius Wright, contra.
   Bloodwoeth, J.

1. The court properly overruled the motion to dismiss the case as to the defendant Belle Isle.

2. There is no merit in any of the special grounds of the motion for a new trial. See Belle Isle v. Kindig, ante, 293.

3. No harmful error of law was committed, there was evidence to support the verdict, and the judgment is

Affirmed.

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


author: Luke, J.

text:
    11127.
    Perry v. Cooper.
    Decided May 11, 1920.
    Complaint; from Morgan superior court — Judge Park. October 25, 1919.
   Luke, J.

In this case, because of the uncertainty and ambiguity of a part of the contract, the true construction thereof, in the light of the intent and meaning of the parties thereto, was a question for the jury, under a proper charge by the court. The evidence was conflicting, but the verdict was authorized, and met with the approval of the trial judge. There being no error of law in the trial of the ease, the judgment overruling the motion for a new trial must be affirmed.

Judgment affirmed.

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

The contract in question was a lease of a farm, containing a provision that “no timber is to be cut except in clearing back from the boundaries of the land heretofore cleared for cultivation.” The trial judge held that this provision was ambiguous, and admitted testimony as to its meaning, and in Ms charge to the jury instructed them to determine its meaning.

T. H. Burruss Jr., for plaintiff in error.

Williford & Lambert, contra.


text:
      11231.

    Ward v. The State.
   Luke, J.

1. “ The idea of prevention, or defense against an impending or progressing wrong, must enter into all cases of justifiable homicide. To deliberately kill in revenge for a past injury, however heinous, after reason has had time to resume its sway, can not be justifiable.” Mize v. State, 135 Ga. 291 (3.) (69 S. E. 173).

2. “ One against whom, or whose wife, an offense, no matter how heinous, has been committed, can not in law be justified ‘ in taking vengeance in his own hands and in deliberately seeking out and following up the wrong-doer and slaying him.” Perry v. State, 102 Ga. 365 (10) (30 S. E. 903).

3. “Section 75 of the Penal Code is not applicable to cases of homicide where the defense relied upon is self-defense.” Ripley v. State, 7 Ga. App. 679 (2) (67 S. E. 834).

4. Upon the trial of the instant case there was no evidence, and nothing in the defendant’s statement, to show that the deceased was killed to prevent him from making a forcible attack upon or invasion of the defendant’s property or habitation, or to prevent an assault upon any member of the defendant’s family. On the contrary, the defendant, in his statement and by the testimony of his witnesses, attempted to show that the killing was solely in defense of the defendant’s person and life. The undisputed evidence shows that the deceased was brought from his (the deceased’s) house by the defendant, and that the killing took place in the public road in front of the defendant’s house, and at that tim'e the deceased was not making an effort to enter the defendant’s premises, or attempting any forcible attack upon or invasion thereof, or attempting to injure any member of the defendant’s family. Under these circumstances sections 72, 74, and 75 of the Penal Code (1910 were not applicable, and the court properly omitted to charge them.

5. The court properly omitted to charge section 76 of the Penal Code (1910), the jury having been fully instructed upon the law of justifiable ' homicide and its effect upon the verdict. Worley v. State; 136 Ga. 231 (4) (71 S. E. 153).

Decided May 11, 1920.

Reheabing denied July 14, 1920.

Indictment for murder — conviction of manslaughter; from Houston superior court — Judge Mathews. December 13, 1919.

B. J. Fowler, John R. Cooper, for plaintiff in error.

Charles H. Garrett, solicitor-general, Herbert Clay, contra.

6. The excerpt from the charge of the court upon the subject of impeachment of -witnesses was adapted to the particular facts of the case, and was not erroneous for any reason assigned.

7. The charge upon the law of voluntary manslaughter was amply authorized by the evidence.

8. The other excerpts from the charge, as complained of in the motion for a new trial, contain no error.

9. The verdict rvas authorized by the evidence, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    11322.
    Fowler v. The State.
    Decided May 11, 1920.
    Indictment for receiving stolen goods; from Warren superior court—• Judge Walker. January 27, 1920.
    The indictment charged Bichard Fowler with “the offense of misdemeanor,” for that, on a specified date, he “did unlawfully buy and receive from Jim Griffin one sack of nitrate of soda weighing about 200 pounds of the value of $10, the same being the property of C. B. Fitzpatrick and having been unlawfully stolen by said Jim Griffin from the cotton house of said C. B. Fitzpatrick, the said Bichard Fowler knowing said nitrate of soda was stolen when he bought and received it from said Jim Griffin. The said Jim Griffin, the principal thief, has plead guilty at the present term of said court to an indictment -for simple larceny, charging him with stealing said property, contrary to the laws of said State,” etc. The grounds of the demurrer were:
    “ 1st. Because it is alleged in said indictment that Jim Griffin unlawfully stole the sack of nitrate of soda from the cotton house of C. E. Fitzpatrick, and further . . that the said Jim Griffin has plead guilty of simple larceny. 2d. Because the allegations in said indictment show that the said Jim Griffin stole the sack of nitrate of soda from the cotton house of the said C. E. Fitzpatrick, and if he, Jim Griffin, is guilty of simple larceny, he is guilty of larceny from the house, and not of simple larceny, of which he pleads guilty. 3d. Because under the allegations in the indictment it appears that the said Jim Griffin has been illegally convicted, and this defendant can not be legally tried until the principal thief, Jim Griffin, has been legally convicted. 4th. Because there is not sufficient description of the property alleged to have been stolen set out in the indictment. 5th. Because ‘one sack of nitrate of soda weighing about 200 pounds’ is not a sufficient description to put this defendant on notice of the property alleged to have been stolen. 6th. Because the indictment does not allege that any sentence has been passed on Jim Griffin.”
   Broyles, C. J.

1. The indictment was not subject to any ground of the demurrer interposed.

• 2. In the light of all the facts of the case, the excerpt from the charge of the court complained of, while inaccurate, does not require a new trial. 3. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The excerpt from the charge of the court to which the decision refers was as follows: “ I charge you that if Jim Griffin had taken the nitrate of soda and appropriated the same to his own use after it was delivered to him in his wagon at the depot in Warrenton and before it was placed in Mr. Fitzpatrick’s cotton house or guano house on his plantation, he would be guilty of larceny after trust, but if he took it home with him and delivered it in the cotton house, and after it was so delivered in the house on Mr. Fitzpatrick’s plantation he took it out of the house, then in that event he would be guilty of simple larceny or larceny from the house, and would not be guilty of larceny after trust.”

E. P. Davis, J. Cecil Davis, for plaintiff in error.

R. C. Norman, solicitor-general, M. L. Felts, contra.


text:
    11323.
    Hadden v. Stone Mountain Granite Corporation.
    Decided May 11, 1920.
   Broyles, C. J.

The court did not err in sustaining the general demurrer and dismissing the action.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Action for damages; from DeKalb superior court-—-Judge Hutcheson. January 2, 1920.

The action was for injury to a stonecutter, alleged to have been working as an apprentice, whose eye, it was alleged, was struck by a fragment of stone flying from a granite block which a co-employee was cutting. The petition alleges, in substance, that on October 29, 1917, when the plaintiff was injured, he was working for the defendant corporation as a stonecutter, under a contract of apprenticeship (exhibited), which, although it was for a term of three years from-June 15, 1914, had not expired, because of his agreement to make up lost time. In the contract it was agreed that the defendant should teach the plaintiff the art of stone cutting “ according to the union apprentice rules,” and that the plaintiff should “respect and obey all orders and commands of” the defendant or any of its agents. Hp to the time of the injury the defendant recognized the contract as binding both parties, and was working the plaintiff as an apprentice and paying him as such. On the day of the injury he was assigned to work on a certain block of stone located in one of the defendant’s sheds, under the orders and direction of the defendant’s foreman (named); and, about 8:30 o’clock a. m., while he was dutifully engaged in the work which the defendant had given him to do, and was giving close attention to cutting the stone on which he had been ordered to work, a small fragment of granite was suddenly precipitated into his eye with great force, causing injuries described. At that time two other employees of the defendant, to wit, Houston Carr and Charlie Allen, were cutting on blocks of stone located close to the one on which the plaintiff was cutting, and the piece of stone which flew in his eye was chipped from one of these blocks, and was started on its flight by the force of the chisel used by one of these men in the work. The block on which Carr was working was 5 or 6 feet to the right of the block oh which the plaintiff was working, and the block on which Allen was working was about the same distance to the left of the one on which the plaintiff was working. The plaintiff does not know from which one of those blocks came the piece that struck his eye, but his best belief is that it came from the stone on which Carr was working, and so he charges the fact to be. He further charges that the stone on which Allen was working was likewise too close to plaintiff’s position of work for safety, and if the piece of stone which injured him came from Allen’s block, the defendant would be liable in the same manner and to the same extent as if it came from Carr’s block. It did not come from the block on which the plaintiff was working. The defendant did not instruct Carr and Allen to refrain from doing any kind of cutting that would endanger the plaintiff’s safety, but directed them to perform certain work, in the course of which there would occasionally be required a kind of cutting known as “pointing up.” The defendant further gave the plaintiff no warning that either of the workmen put so close to him would be required to do that kind of cutting which would make the place unsafe, and did not give him any warning or opportunity to look out for his own safety by letting him know when either of these men would commence that stage of the work which would be dangerous to the plaintiff.

The plaintiff charges that the defendant was negligent towards him in the following respects: (1) in failing to provide him with a safe place of work; (2) in failing to instruct the man working near him not to do that kind of cutting which would endanger him; (3) in rendering his place of work unsafe, without warning him thereof, by requiring the men working next to him to perform work which at times necessarily endangered him; and (4) in failing to give him notice or warning that he would be exposed at uncertain intervals of time to danger from flying particles of stone. The plaintiff charges that in all the matters aforesaid he himself did not fail to use ordinary care for his own safety, did not consent to the injury, and was not guilty of contributory negligence, but was simply and faithfully performing the work assigned to him by the defendant, with undivided attention, without apprehension of danger, and without any chance to save himself from injury, when the bit of stone struck his eye.

In the demurrer it was contended: that the injury was caused by negligence of a fellow servant, for which the defendant was not liable; that the injury was a hazard assumed by the plaintiff as one of the risks of his employment; that it appeared that he had been working in the same place for a considerable length of time, and his opportunity of knowing the danger was equal to or greater than that of the defendant; and that the rule which ordinarily places upon the master the duty of providing a safe place for work does not apply, under the facts alleged in the petition.

In the brief of counsel for the plaintiff it is contended, among other things, that while the contract between the parties “did not create an apprenticeship in the full sense of the term, it has some of the essentials thereof,” and “ it would seem that the relation between the parties was that of master and apprentice rather than the ordinary relation of master and servant,” and “ a different rule as to contributory negligence and assumption of risk should be applied to the case of an apprentice from that which is usually applied in the case of an ordinary servant.”

A. H. Davis, for plaintiff,

cited: Civil Code (1910), §§ 31317 et seq.; 3120, 3122, 3126, 3128; 24 Ga. App. 671; 9 Ga. App. 738 (2) ; 118 Ga. 651; 136 Ga. 633; 13 Ga. App. 799, 807, 810; 14 Ga. App. 35, 39; 22 Ga. App. 180 (2); Id. 309 (2, 4).

Napier, Wright & Wood, J. N. Johnson, for defendant,

cited: Civil Code (1910), § 3131; 2Ga. App. 81; 126 Ga. 667; 118 Ga. 581 (2); 140 Ga. 459; 5 Ga. App. 148; 127 Ga. 406; 123 Ga. 35 (3) ; 10 Ga. App. 179; 132 Ga. 232; 134 Ga. 712 (1).


text:
    11327.
    RAILEY, adm’r, v. UNITED LIFE AND ACCIDENT INSURANCE CO.
    Decided May 11, 1920.
    The errors assigned in the bill of exceptions being the sustaining of a demurrer to two of three counts of the plaintiff’s petition, and the overruling of a demurrer to the answer, and the case being still pending in the court below on one of the counts of the petition, the writ of error must be dismissed.
    Motion to dismiss the writ of error.

      John Henry Poole, for plaintiff.

      Fulwood & Hargrett, for defendant.
   Luke, J.

The record in this case shows that the suit was in three counts, two of which were stricken on demurrer; and that the plaintiff demurred to the defendant’s answer, and the demurrer was overruled. The bill of exceptions assigns error upon the judgment sustaining the demurrer to two of the counts of the petition, and excepts also to the judgment overruling the demurrer to the answer. A motion was made to dismiss the bill of exceptions, upon the ground that there has been no final judgment in the case, and that the case upon one of the counts in the petition was still pending. It being true that no final judgment has been rendered in the case, and there being still pending the suit upon one count of the petition, the motion to dismiss the bill of exceptions must prevail. Park’s Ann. Code, § 6138; Southern Flour & Grain Co. v. Levy Rice Milling Co., 22 Ga. App. 554 (96 S. E. 593), and cit.

Writ of error dismissed.

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


text:
    11330.
    Render v. Harris.
    Decided May 11, 1920.
    Action for damages; from city court of LaGrange—-Judge Duke Davis. January 23, 1920.
    The petition as amended alleges, in substance, that on June 1, 1919, the plaintiff and the defendant entered into a verbal contract under which the defendant rented to the plaintiff, at a rental of $125 per month, for one year, to begin on the 15th day of that month, a described building in the City of LaGrange, which the defendant represented that he had full authority to rent, but that on the 11th day of the same month, when he went to see the defendant with reference to moving into the building, he was advised that the defendant had changed his mind, and that the defendant had no authority to rent the building; and the defendant refused to allow him to move into it. Actual and nominal damages are sued for. The defendant demurred to the petition generally and specially, contending that the alleged verbal contract was within the statute of frauds and not enforceable, as it was not to be performed in one year from the time at which it was made; and that the alleged damages were too remote, speculative, and uncertain to be the basis of a recovery.
   Broyles, C. J.

1. “ A contract establishing the relation of landlord and tenant for one year, though made before the year begins, may be in parol.” Steininger v. Williams, 63 Ga. 475; Gay v. Peak, 5 Ga. App. 583 (63 S. E. 650) ; Ridgway v. Bryant, 8 Ga. App. 564 (70 S. E. 28).

2. The court did not err in overruling the demurrer to the petition as amended.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

From the petition it appears that the building was rented for the purpose of being operated by the plaintiff as a hotel, and this purpose was known to the defendant at the time the contract was made. At that time the plaintiff was operating a public eating house in the same city, and, immediately after the contract was made, the plaintiff, acting with the knowledge and advice of the defendant, notified the traveling public who were then taking their meals at his eating house that on June 15, 1919, he would move into the rented building and he would not after that date be at his old stand. It is alleged that the refusal of the defendant to carry out the contract forced the plaintiff to remain at his old stand, and immediately after June 15, 1919, the receipts from his business from traveling people dropped off a stated sum per week, and this loss continued to the time of bringing this suit, 'as a result of having advised his customers that he would move at the time stated above. After being apprized of the defendant’s refusal to carry out the contract, the plaintiff exercised due diligence in notifying the traveling priblie that he would not move from his old place of business. Allegations are made as to the difference in the amount of his net receipts for five months after June 15, 1919, and for the five months preceding that date, and he sues for the difference. Another item of damages is $100, alleged to be the reasonable value of the time expended by him in specified negotiations and preparations for the operation of the business to be conducted at the rented building; which negotiations and preparations were undertaken with the knowledge and at the advice of the defendant. It is alleged that when the defendant refused to carry out the contract, he knew that loss would result to the plaintiff in the amounts stated.

E. T. Moon, for plaintiff in error,

cited: On statute of frauds: 31 Ga. 507; 47 Ga. 479; 126 Ga. 643; 8 Ga. App. 564; 5 Ga. App. 583. As to damages: Civil Code (1910), §§ 4394, 4509; 140 Ga. 51; 144 Ga. 135; 56 Ga. 189 (5); 14 Ga. App. 158.

L. B. Wyatt, contra,

cited cases cited in the decision, and, as to damages, cited: Park’s Ann. Code, § 4397; 101 Ga. 776; 8 Ga. App. 787; 75 Ga, 582; 133 Ga. 446; 57 Ga. 128; 110 Ga. 894; 99 Ga. 774-5; 105 Ga. 275; 73 Ga. 286; 79 Ga. 743; 94 Ga. 407; 85 Ga. 606.


text:
    11331.
    Martin v. The State.
    Decided May 11, 1920.
    Indictment for larceny after trust; from Chatham superior court — Judge Meldrim. January 27, 1920.
    The indictment charged larceny after trust of one automobile. In the brief of counsel for the plaintiff in error it is contended that if the venue was proved, it was proved to be in Bulloch county, and not in Chatham county.
    The material facts of the case were stated by the trial judge, in his judgment overruling the motion for a new trial, as follows: “ This is the ease of larceny of an automobile, and the only question is: Was the larceny committed in Chatham county? . . It appears that the prisoner hired an automobile in Savannah for five hours, to go to Marlow, Ga., and return. After the expiration of the five hours he telephoned that he would not return before 8 o’clock p. m. The next heard of him he was arrested in Jacksonville, Florida. He went to Statesboro and Douglas, Ga., Orlando, Florida, and thence to Jacksonville. In Jacksonville he went under the assumed name of Hughes. He had a suit-case in'the car. It is not probable that a person going from Savannah to Marlow and return, in October, to be gone five hours, would require a suitcase. For a man to start off for a neighborhood trip of five hours, and then go to Statesboro, thence to Douglas, spending two or three days there, then to Orlando, Florida, for a day or two, 'and then to'Jacksonville, where he is picked up by the police under the assumed name of Hughes, is sufficient to warrant the conclusion that the intent to steal was formed in this county.”

      J. Hartridge Smith, for plaintiff in error,
    cited: 143 Ga. 632 (3), 639; 86 Ga. 800; 77 Ga. 719; 97 Ga. 330; 111 Ga. 671; 119 Ga. 868.
   Luke, J.

Martin was convicted of the offense of larceny after trust. The sole question raised in the bill of exceptions is as to the proof of venue. The evidence amply authorized the jury to find that the defendant had the intent and did in Chatham county convert the property. The trial judge approved the verdict, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

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

Walter C. Hartridge, solicitor-general, contra.


author: Bboyles, C. J.

text:
    11340.
    Bank of Donaldsonville v. Bowen.
    Decided May 11, 1920.
    Complaint; from city court of Miller county — Judge Geer. February 14,-1920.

      R. L. Cox, P. D. Rich, for plaintiff.

      N. L. Stapleton, for defendant.
   Bboyles, C. J.

1. In view of the counter-showing by the defendant, the alleged newly discovered evidence affords no ground for a new trial.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11343.
    Gammage v. Perry, administrator.
    Decided May 11, 1920.
    Appeal; from Sumter superior court — Judge Littlejohn. January 23, 1920.
   Broyles, C. J.

1. The provision of section 4073 of the Civil Code of 1910, that “any person interested as distributee or legatee may, after the expiration of one year from the grant of administration, cite the administrator to appear before the ordinary for a settlement of his accounts,” does not apply to judgment creditors of such legatees or distributees. The remedy of such creditors is plainly provided in sections 5303 and 5304 of the Civil Code of 1910; and the court of ordinary has no jurisdiction to entertain a petition of a judgment creditor of a distributee or legatee of an estate to cite the administrator to appear before the ordinary for an accounting and settlement of such funds in his hands as may be due to the distributee or legatee, and to pay out of such funds to the petitioner the amount of his judgment.

2. It follows from the above ruling that in the instant case the court of ordinary erred in overruling the general demurrer to the petition, and that the judge of the superior court, on appeal, correctly sustained the demurrer and dismissed the suit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Maynard & Williams, for plaintiff.

Wallis & Fort, for defendant.


text:
    11344.
    Ligon v. The State.
    Decided May 11, 1920.
    Indictment for attempt to commit burglary; from Fulton superior court — Judge Humphries. February 3, 1920.

      D. H. McWilliam, for plaintiff in error.

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

1. An indictment for an attempt to commit a crime must aver the intent and the overt act which constitutes the attempt. Wilburn v. State, 22 Ga. App. 614 (97 S. E. 87), and citations.

2. An indictment which charges the offense of an attempt to commit burglary, and which further alleges merely that the accused in the county of Fulton and State of Georgia, on the 11th day of January, 1920, with force and arms, did attempt to break and enter the dwelling house of M. J. Sewell, where valuable goods were contained, with intent to- steal, contrary to the laws of said State and the good order, peace and dignity thereof,” is fatally defective in substance, in not alleging any overt act; and the defect is not waived by failure to demur. O’Brien v. State, 109 Ga. 51 (35 S. E. 112); United States v. Ford, 34 Fed. 26; Wilburn v. State, supra.

3. Under the above rulings, the court erred in-overruling the motion in arrest of judgment.

Judgment reversed,

Luke and Bloodworth, JJ., concur.


text:
    11346.
    MAXWELL v. THE STATE.
    Decided May 11, 1920.
    Intent to steal when the accused borrowed the coat alleged to have been stolen could be inferred by the jury in this case, and a conviction, of simple larceny was authorized.
    Indictment for simple larceny; from, Stephens superior court — Judge Jones. January 31, 1920.
    The article alleged to have been stolen was Alzie (or Eliza) Bohanon’s coat. Her husband, in his testimony, said: “Some time last November or October, 1919, George Maxwell (the defendant) and his wife were boarding at my house. One morning it was drizzling rain and he wanted to borrow my wife’s coat and said he would bring it back about one o’clock the same day. I told him I would let him have it, and let him have it, with the understanding he was to bring it back by one o’clock the same day, and he has never returned the coat.” On cross-examination the witness stated that the defendant owed him $6 for board, and he took out a warrant against the defendant “ for beating his board,” and when he decided that he could not get what was due for the board he went before the grand jury and had the solicitor-general draw an indictment for larceny; that he made no demand upon the defendant or the defendant’s wife for the coat, and made no search or inquiry for it after it' was borrowed, and only tried to collect the board bill; he did not know where they went after leaving his house. The wife of this witness testified to the same effect, and said that the defendant and his wife " never brought back the coat or said anything about it.” Its value was $15. The defendant in his statement at the trial denied that he stole the coat. He said: "Me and my wife boarded at Mr. Bohanon’s house; my wife got sick, and, after she got able to go to town, one morning I asked Mr. Bohanon for a parasol; he said he did not have a parasol but had an old coat that was not much account, and would let him [me?] have that for his [my?] wife. We left there then and got us some rooms nearer up in town . . and stayed about two weeks. I would have carried the coat back, but my wife said Mrs. Bohanon gave her the coat for waiting on her. I would have had the coat here to-day, but my wife is in South Carolina and did promise positively she would be here and have the coat here in court to show what kind of looking coat it was. I consider the coat no good at the time we borrowed it and now. . . I just could not make my wife bring the coat back, but she promised to have it here in court and give it back to them. She said she brought it back to them one time and carried it to the jail and hunted for them rather than have any trouble about it, but Mr. Holcomb’s wife said for her to keep it, and my wife has been in South Carolina ever since.”

      J. A. McDuff, for plaintiff in error.

      J. G. Collins, solicitor-general, contra.
   Luke, J.

Tinder the evidence in this case the jury were authorized to find that the defendant had the intent to steal at the time he procured the coat alleged to have been stolen. The defendant claimed that he borrowed the coat with no intent to steal; the jury, however, under appropriate instructions, must determine what the intent of the defendant was at the time of procuring the coat. The verdict has evidence to support it and has the approval of the trial judge. For no reason assigned do we find error requiring a new trial. See Rice v. State, 6 Ga. App. 160 (64 S. E. 575); Bryant v. State, 8 Ga. App. 389 (69 S. E. 121). And see Munn v. State, 12 Ga. App. 479 (77 S. E. 591). If, as contended in the brief of counsel for the defendant, his wife borrowed the coat and he had nothing to do with holding it, we apprehend that the jury would have found a different verdict. The record before us does not bear out the contention of the defendant in this regard.

Judgment affirmed.

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


text:
    11348.
    GEORGIA NORTHERN RAILWAY CO. v. BATTLE.
    Decided May 11, 1920.
    Rehearing denied July 29, 1920.
    Whether the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiff’s stock by a train of the company, was successfully rebutted was the only issue in the case; and the evidence authorized a finding against the defendant.
    Action for damages; from Colquitt superior court — Judge Thomas. January 23, 1920.

      W. F. Way, for plaintiff in error.

      Parker. Gilson & Roddenbery, J. B. Fussell, contra.
   Bloodworth, J.

This is a suit for damages against a railroad company for killing stock. It is admitted that the stock were killed, and the only issue is whether or not the railroad company successfully rebutted the presumption of negligence that arose against it upon proof of the killing. The evidence for the railroad company tended to show that the engineer and the fireman were in the exercise of all ordinary care and diligence, and that the killing of the stock was not due to any negligence of the defendant or its employees, but there was some evidence to contradict this, and the judge, who by agreement passed upon the case without the intervention of a jury, having decided that the presumption against the railroad was not overcome by the evidence, this court will allow his finding on the facts to stand.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.


text:
    11349.
    Gordon v. Foundation Company.
    Decided May 11, 1920.
    Action for damages; from city court of Savannah — Judge Freeman. November 24, 1919.
    As to the amendment offered by the plaintiff, it appeared from the judge’s note, qualifying the bill of exceptions, that when counsel for the plaintiff was allowed to reopen the case for the purpose of introducing additional testimony after a motion for a nonsuit had been made, he stated that he desired to offer an amendment, but he did not then tender it, and at the conclusion of the additional testimony the judge asked if he had anything further to offer, and he replied that he had not. The motion for a nonsuit was renewed and granted, and the amendment was not tendered until the next day.

      Kenan & Ulmer, for plaintiff in error.

      O’Byrne, Hartridge & Wright, contra.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, that an exception to the refusal to allow a witness, on the direct examination, to answer a question will not be considered by the reviewing court unless it affirmatively appears that the trial judge was notified at the time of the ruling what answer was expected from the witness, the several exceptions to the refusal of the court to allow certain named witnesses to answer certain questions is not considered.

2. Under the facts of the case, as disclosed by the note of the trial judge qualifying his approval of the bill of exceptions, it was not error to disallow the proffered amendment to the plaintiff’s petition.

3. The evidence adduced by the plaintiff not authorizing a finding by the jury that the defendant was negligent in any of the ways alleged in the petition, the court did not err in awarding a nonsuit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11351.
    Abercrombie v. Henry County Drainage District No. 1.
   Broyles, C. J.

1. None of the excerpts from the charge of the court excepted to, when considered in connection with the entire charge, contains material error.

2. The issue in this case was wholly one of fact, to wit, whether the land of the plaintiff in error was properly included in the drainage district as surveyed and reported upon in accordance with the law (Ga. L. 1911, p. 108) ; and upon the hearing of her objections to the report of the viewers, and the de novo hearing upon appeal to the superior court, the jury were authorized to find that her lands would be benefitted by the proposed drainage canal, that the ditch already upon her land was insufficient to properly drain it, and that the construction of the new canal through her land was essential to the complete drainage project for the betterment of the health of the community and the proper drainage and improvement of the other lands included in that drainage district.

Decided May 11, 1920.

Appeal; from Henry superior court'—Judge Searcy. January 19, 1920.

Brown & Brown, for plaintiff in error.

Reagan & Reagan, contra.

3. The question as to whether the lands of the plaintiff in error were improperly classified in the report of the viewers, in that all her lands should have been put in the lowest class, was not raised by the pleadings in the case. Furthermore, it does not appear from the record that this was one of the issues upon the trial; nor is such question raised in any of the grounds of the motion for a new trial, and the only assignment of error in the bill of exceptions is as to the judgment overruling the motion for a new trial. This question, therefore, can not be considered by this court.

4. The court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11353.
    Tennessee, Alabama & Georgia Railroad Co. v. Neely.
    Decided May 11, 1920.
    Action for damages; from Walker superior court — Judge Wright. January 17, 1920.
   Broyles, C. J.

1. In view of the amount of the verdict returned ($5,000) and the other facts of the case, it was reversible error for the court, in charging upon the measure of damages for the homicide, to fail to call the attention of the jury to the fact that in the decedent’s declining years his capacity to labor at his calling, and his ability to earn money, might have decreased, and that they should consider this fact in fixing the amount of damages. Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 (8) (86 S. E. 933), and cit.

2. Hone of the remaining special grounds of the motion for a new trial shows material error.

3. As there must be another trial of the case, the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

S. D. Smith, Shattuck & Shattuck, for plaintiff in error.

Rosser & Shaw, contra.


text:
    11354, 11355.
    MATTOX v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY; and vice versa.

    Decided May 11, 1920.
    Any ambiguity in an insurance contract should be construed most strongly against the insurer, but the construction must be reasonable and not strained.
    The “ war clause ” of the life-insurance policy in question, properly construed, required the insured to notify the insurance company as to his entrance into military service, so that the company might demand of him the extra premium required, under the terms of the “war clause,” for one engaged in such service.
    Action on insurance policy; from city court of Elberton — Judge W. D. Tutt. January 23, 1920.
    This was a suit on a policy of insurance upon the life of George W. Mattox. Only the following portions of the application and the supplementary application for the policy are material:

      (а) “I further agree that said policy shall be void if within five years from its date I shall engage in military service in time of war without the written consent of the company previously obtained.”
    (б) “I hereby agree that any policy issued by the company on this application shall contain or have attached thereto the following war-clause: ‘ If within five years from the date of this policy the insured shall engage in any military or naval service in time of war, the liability of the company in event of death of the insured while so engaged . . . will be limited to the return of the premiums paid hereon, exclusive .of any extra premium paid for military or naval service, less any indebtedness to the company hereon; unless before engaging in such service or within thirty-one days thereafter . . . the insured shall pay to the company at its home office in Boston, Mass., such extra premium as may be required by the company, and in like manner shall pay annually thereafter, on each anniversary of this policy, or within thirty-one days thereafter while the insured shall continue to be so engaged, such extra premium as may be required by the company, Within one year after the termination of the war the company will return such portion of the extra premium as in its judgment will not be required to cover the extra hazard.” The foregoing “war clause” was attached to the policy sued upon. The policy also contained the following clause: “After one year from the date of issue this policy shall be incontestible except for non-payment of premiums, and for military or naval service in time of war, as per war-clause annexed hereto, and no waiver of any of its conditions shall be valid unless made in writing and signed by the president, vice-president, secretary or assistant secretary of the company.”
    The defendant company denied any liability under the policy, except for the amount of the premiums paid by the insured, upon the following grounds: First, that the insured, within five years from the date of the policy, enlisted in military service in time of war, without the written consent of the company. Second, that the insured diéd in military service without having paid the extra premium required by the company on account of such service, although the rules of the company required an extra premium for the first year of war service, of $37.50 per $1,000 of insurance. The court sustained the demurrer to the first ground of the defendant’s plea, on the ground that, the policy having been in force for more than one year, under the incontestible clause thereof such a defense could not be set up. The court likewise sustained a demurrer to that portion of the defendant’s plea which alleged that the company had rules requiring the payment of an extra premium of $37.50 per $1,000 of insurance for war service, and declined to allow the defendant to introduce evidence to support this allegation, on the ground that the rules of the company were not a part of the policy, and therefore were not binding upon the insured. These rulings were duly excepted to by the defendant and brought up in a cross-bill of exceptions. Upon the trial the evidence consisted of the following agreed statement of facts:
    “W. C. Mattox, the plaintiff in the above-stated case, is the duly appointed and legally qualified administrator of the estate of George William Mattox, late of Elbert county, Georgia, deceased. The New England Mutual Life Insurance Company, the defendant in this case, is a Massachusetts corporation, having an agent, office, and place of business in Elberton, Elbert county, Georgia. On the 14th day of June, 1917, George William Mattox applied to the defendant for a policy of insurance upon his life, payable to his executors, administrators, or assigns, in the amount of two thousand dollars. Upon this application and a supplementary application, made upon the date of the original application, defendant issued to the said George William Mattox its policy of insurance upon his life, which policy is numbered 335,858, to which policy was attached a copy of the application and the supplementary application therefor, and also a rider, designated as a ‘war clause.’ Correct copies of the said policy of insurance, said application and supplementary application therefor, and said ‘war clause’ rider are attached to the petition in this case, as exhibits, and the same constitute the contract upon which the plaintiff brings this suit. The first and second regular annual premiums of $58.80 each, due upon said policy of insurance, were paid by the insured, George W. Mattox, by his paying the sum of $74.60 in cash, and the balance by giving three notes, dated June 27, 1918, and payable to defendant. Said three notes were never paid by George W. Mattox, and defendant still holds said notes unpaid. Said premium notes provide for thirty days of grace for the payment thereof, and the plaintiff died within the said thirty days of grace. After said policy had been issued to him, and on the 10th day of August, 1918, the insured, George W. Mattox, enlisted in the dental corps of the United States army, as a first lieutenant in the dental corps. The dental corps of the United States army is and was at the time of the enlistment of the insured, and was at the time of his death, a branch of the military service of the United States of America. From the time of his enlistment on the 10th day of August, 1918, until October, 1918, the insured -was stationed at an army training, camp, at Camp Wheeler, Macon, Georgia. The duties which were imposed upon insured, as a member of the dental corps of the United States army and as a first lieutenant of that branch of the service, were those of a regimental dentist whose practice was restricted tp the members of the army, under the orders of his superior officers. Had George W. Mattox reached France, he would have been subject to the orders of his superior officers and would have been required to go to such portions of the territory adjacent to the scene of armed conflict as might make it possible for him to attend to the members of his regiment needing dental surgery, and such orders might have carried him within the range of cannons at different times, and certainly within the range of bombing airplanes. He would have lived in the camps of his regiment. No actual combatant service was or under military regulations could be required of insured. On or about the 1st day of October, 1918, insured, with the unit to which he was attached, boarded the United States army transport U. S. S. Kroonland, destined for a port of debarkation in France. Insured boarded said transport at Norfolk, Virginia. The said transport or troopship was crowded, and staterooms thereon, designed for two, were occupied by three or four persons. While aboard this troopship insured contracted pneumonia. After pneumonia had developed, the insured was taken out of his stateroom and carried to an infirmary, aboard ship, which was comfortably and conveniently fitted up for the purpose. Insured died from this attack of pneumonia, while at sea, and before he had reached France; the date of his death being the 15th day of October, 1918. The pneumonia from which .insured died was superinduced by a case of Spanish influenza which preceded it. The body of deceased insured was returned to Elberton, Ga., and was there interred. From the time of his enlistment until the date of insured’s death the United States were in a state of war with the German and Austro-Hungarian nations, and at the time of his death the insured, acting under orders of his superior military authorities, was being transported across the Atlantic ocean to France, where his unit was to join the United States forces, then and there engaged in an armed conflict with the aforesaid enemy armies. Prior to the filing of this suit plaintiff complied with all the requirements of the defendant, as to proof of death and claim of insurance of the deceased, George W. Mattox. Defendant refused to pay the amount of the insurance for which said policy had been issued, but, before plaintiff filed suit, did make a legal tender to plaintiff of the sum of $74.60 (the whole of the amount insured had paid in cash on his premiums), and did make a tender of the three notes which insured had made to defendant in payment of the balance due upon his premium, which amount of money and which notes defendant tendered as a full settlement of its liability under the policy sued on. The tender of said amount together with said notes was refused by the plaintiff, as not being in full of defendant’s liability. The insured, George W. Mattox, never obtained defendant’s written consent for him to engage in military or naval service, and never applied for such consent. Defendant never made a demand upon the insured for the payment of an extra premium for or on account of war service in which insured was engaged, and the insured never paid to defendant any such premium.”
    The court, sitting by consent without the intervention of a jury, rendered judgment in favor of the defendant, and subsequently overruled the plaintiff’s motion for a new trial, and the plaintiff excepted.

      Joseph N. Worley, W. A. Nall, for plaintiff.

      Candler, Thomson & Hirsch, Z. B. Rogers, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) Conceding, but not deciding, that the court’s judgment upon the demurrers to the defendant’s plea was correct, we nevertheless think the judgment for the defendant was the only possible legal adjudication of the case. The controlling question is as to the proper construction of the “ war clause ” attached to the policy of insurance sued upon. Counsel for the plaintiff contend, in effect, that under that clause the beneficiary of the insured was entitled to recover the full value of the policy, upon the death of the insured in military service, without the payment of an extra premium for such service, unless the company had actually demanded of the insured such extra premium. On the other hand, counsel for the insurance company contend, in substance, that under the “war clause,” especially when construed in connection with the other material provisions of the policy, it was not obligatory upon the company to ascertain that the insured was intending to enlist in military service, and thereupon to notify him that the company demanded or required a certain sum as an extra premium for such war service, but that it was clearly understood by both parties to the contract that if the insured thereafter entered military service, he must pay an extra premium to keep the policy in force for any amount except for the premiums which he had paid, and that it was incumbent upon the insured, if he desired to keep the policy in force for its full face value, to notify the company of his intention to enter military service, so that the company would have an opportunity to demand of him the extra premium required, under the terms of the “war clause,” for such service.

While the law is well settled that any ambiguity in an insurance contract should be construed most strongly against the insurer and most favorably in the interest of the insured, it is equally as well settled that the construction must be a reasonable and not a strained one. In our judgment, even if it be conceded that there is ambiguity in the war-clause of the policy, it would be an unreasonable 'and' a strained construction to hold that under that clause, and the other provisions of the policy, it was the duty of the insurance company to keep such close track of the insured as to ascertain, without any notice from him, that he was about to enlist in military service, and to notify him that the company required of him a certain amount as an extra premium for the war service in which he was about to engage. In our opinion the only sound and reasonable construction of the “war clause,” especially when construed in the light of the other material provisions of the policy sued upon, is as contended by counsel for the defendant. It follows that the court, sitting without the intervention of a jury, did not err in rendering a judgment for the defendant, or subsequently in denying the motion for a new trial.

Judgment affirmed on the main bill of exceptions j cross-bill dismissed.

Luke and Bloodworth, JJ., concur.


text:
    11358.
    Sheffield et al. v. King.
    Decided May 11, 1920.
    Processioning; from Camden superior court — Judge Graham. January 27, 1920.

      Cowart & Vocelle, for plaintiffs in error.

      S. C, Townsend, contra.
   Broyles, C. J.

There was some evidence which authorized the verdict, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment denying the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11359.
    Cain v. The State.
    Decided May 11, 1920.
    Indictment for manufacture of liquor; from Colquitt superior court — Judge Thomas. January 23, 1920.
    After charging the jury that "the true question in criminal eases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the minds and consciences of the jury beyond a reasonable doubt that the defendant is guilty of the crime charged,” the court added: "In cases of circumstantial evidence the law goes one step further, and holds that the evidence must not only be consistent with the hypothesis of guilt, but inconsistent with the hypothesis of innocence, and exclude every other reasonable hypothesis save that of the guilt of the accused.” There was no further charge on circumstantial evidence. In the motion for a new trial it is alleged that the court erred in the foregoing charge on circumstantial evidence, on the grounds that it was insufficient, that the court failed to explain the meaning of the term “ circumstantial evidence,” and did not state that the guilt of the defendant rested solely on circumstantial evidence, failed to state all possible hypotheses arising from the circumstantial evidence in the case which were favorable to the defendant, failed to instruct the jury that if they believed any one of the hypotheses favorable to the defendant or had a reasonable doubt as to its truth he should be acquitted, and failed to instruct the jury how to apply the rule of circumstantial evidence to the circumstances shown by the evidence.

      John T. Coyle, Parker, Gibson & Roddenbery, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
   Broyles, C. J.

1. The charge upon the law of circumstantial evidence, in the absence of a request for more particular instructions, was sufficiently full. ,

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11374.
    Beard v. The State.
    Decided May 11, 1920.
    Conviction of assault with intent to rape; from Walker superior court — Judge Wright. February 3, 1930.

      C. R. Jones, Rosser & Shaw, for plaintiff in error.

      C. H. Porter, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11377.
    Trice v. The State.
    Decided May 11, 1920.
    Indictment for manufacture of liquor; from Pulaski superior court — Judge Graham. January 33, 1930.

      H. E. Coates, for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   Broyles, C. J.

The motion for a new trial contained, only the usual general grounds; the verdict was authorized by the evidence, and the court did not err in overruling the motion for a- new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11378.
    Williams v. The State.
    Decided May 11, 1920.
    • Indictment for murder — conviction of manslaughter; from Pulaski superior court — Judge Graham. January 33, 1930.

      M. H. Boyer, H. E. Coates, for plaintiff in error.

      W. A. Wooten, solicitor-general, H. F. Lawson, contra.
   Luke, J.

The evidence in this case was conflicting, and a verdict of either murder, voluntary manslaughter, or justifiable homicide, according as the jury gives credence to the evidence, would have been authorized. The charge of the court, when read in its entirety, submitted the issues fully and fairly to the jury. The verdict has the approval of the trial judge, and for no reason assigned do we find error requiring a new trial

Judgment affirmed.

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


text:
    11379.
    Cummings v. The State.
    Decided May 11, 1920.
    Accusation of maintaining and keeping a lewd house; from city court of Douglas — Judge Henson. February 19, 1920.
    From the evidence it appeared that George Cummings, the defendant, was employed as caretaker of the Country Club, near Douglas, Georgia, and was furnished a house for himself at the grounds of the club. In this house 'a constable discovered a man and a woman in bed together and in their night-clothes, about two or three o’clock in the afternoon, drunk and asleep or feigning sleep. The defendant told the constable that they came to the club that morning before day and wanted him to go to town and get for them some’ cigarettes and chicken, and that, after day and after he had been given a drink of whisky and a dollar by the man to go to town and get something to eat for them, he went to town, and he did not return until after they were arrested; he first said that when he went to town he left them on the veranda of his house 'and left the door of the house closed, but not locked, and that they forced their way into the house; but he later told the constable that he took them in. The constable testified that the man was married, but he did not know whether the woman was married. A brother of the man found in bed with the woman testified that early in the morning the defendant came to him and told him that the couple were in his house drunk and sent him to get them-something to eat, and that he was taking care of them; and he (the witness) went to the defendant’s house in the afternoon and saw the man and the woman in bed together in the condition described above. He further testified: “Some time before this Happened I was taking the defendant out to the club in my car, . . 'and he told me that any time I wanted to bring a woman out to the club I could bring her to his house and he would furnish me a place, but told me to wait until late at night to come, and be sure not to come until all the club members left the club.” It was testified tliat the president of tire club placed the defendant in charge of it, with direction not to let any imlnoral people go there, and to notify him or Mr. Shelton, cashier of the Union Banking Company, if any such people went there, and that he did not so notify them. In the defendant’s statement at the trial he said that when he left the man and the woman at his house they were on the veranda and the door of the house was closed, and he did not know they were in the house until after they were arrested ; and that when he went to town he reported at the bank of the Union Banking Company that these people were out at the club drunk, and he did not return until after the arrest; that they came to his house about 3 o’clock that morning after a dance at the club and after the club members had left, and came into the veranda of his house and stayed until day.
   Broyles, C. J.

1. Tlie evidence, as disclosed by the record, was insufficient to authorize the defendant’s conviction of keeping a lewd house, and the court erred in overruling the motion for a new trial.

2. Under the above ruling it is unnecessary to consider the special grounds of the motion, for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

It was contended that proof of a single act of fornication or adultery in a house would not be sufficient to 'authorize a conviction under the statute (Penal Code of 1910, § 382) under which the accusation was made.

L. E. Heath, Casey Thigpen, for plaintiff in error,

cited: Penal Code (1910), § 382; 14 Ga. App. 110; 23 Ga. App. 727; 5 Ga. App. 766; 2 Ga. App. 433; 115 Ga. 571; 92 Ga. 49; 18 Ga. App. 112; 4 Ga. App. 336.

J. A. Roberts, solicitor, McDonald & Willingham, E. L. Grantham, contra,

cited: 24 Cyc. 792, and cit.; 120 Ga. 201.


text:
    11386.
    Ward v. City of Macon.
   Broyles, C. J.

1. The act penalized by the first section of the ordinance of the City of Macon which the plaintiff in error was charged with having violated, to wit, the assembling of two or more persons anywhere within the limits of the city for the purpose of gaming, is not covered by any State law, and that portion of the ordinance is valid. See, as to the principle of law involved, Callaway v. Mims, 5 Ga. App. 9 (62 S. E. 654) ; Athens v. Atlanta, 6 Ga. App. 244 (64 S. E. 711) ; Sheppard v. Jackson, 11 Ga. App. 812 (76 S. E. 367); Jones v. Rome, 15 Ga. App. 41 (82 S. E. 593); Morris v. State, 18 Ga. App. 684 (90 S. E. 361) ; Ellis v. Golden, 18 Ga. App. 749 (90 S. E. 495) ; Allen v. Jennings, 134 Ga. 838 (67 S. E. 883).

2. There was some slight evidence which authorized the finding of the recorder, and, that finding having been approved by the judge of ihe superior court, this court is without authority to set it aside.

Decided May 11, 1920.

Certiorari; from Bibb superior court — Judge Mathews. January 27, 1920.

Hunter & Daly, J. L. Wimberly, for plaintiff in error.

R. G. Plunkett, P. F. Brock, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11392.
    Rice v. The State.
    Decided May 11, 1920.
    Conviction of involuntary manslaughter; from Fulton superior court — Judge Humphries. February 21, 1920.

      B. H. & Harvey Hill, Tillou Von Nunes, for plaintiff in error.

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

The charge of the court as to impeachment of witnesses did not confuse and mislead the jury; and when the entire charge is read, there is no harmful error in the instructions complained of.

The verdict of involuntary manslaughter was authorized by the evidence; and it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11393.
    Oliver v. The State.
    Decided May 11, 1920.
    Indictment for manufacture of liquor;-from Ben Hill superior court — Judge Gower. February 14, 1920.

      A. J. & J. C. McDonald, Vessie Jones, for plaintiff in error.

      J. B. Wall, solicitor-general, Jesse Grantham, contra.
   Broyles, C. J.

1. In the light of the particular facts of the case, the charge as a whole, and the notes of the judge qualifying his approval of the amendment to the motion for a new trial, none of the special grounds of the motion shows cause for a reversal of the judgment below.

2. The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11394.
    Putnam v. The State.
    Decided May 11, 1920.
    Indictment for forgery; from Ben Hill superior court — Judge Gower. February 14, 1920.

      A. J. & J. C. McDonald, for plaintiff in error.
    J. B. Wall, solicitor-general, Jesse Grantham, contra.
   Broyles, C. J.

1. One is not guilty of uttering a forged paper unless lie knows that it is a forgery. Stephens v. State, 56 Ga. 605; Raper v. State, 16 Ga. App. 121 (84 S. E. 560).

2. Where one is being tried under an indictment containing two counts, in one of which ho is charged with the forgery of a certain bank check, and in the other with the offense of knowingly uttering and publishing the cheek as true, it is error to instruct the jury, in effect, that the defendant would be guilty of uttering and publishing the alleged forged check if he attempted to pass it, and if by reasonable inquiry he could have ascertained that the check was a forgery'.

3. It is considered unnecessary to pass upon the other assignments of error, most of which, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11400.
    Mitchell v. The State.
    Decided May 11, 1920.
    Indictment for possession of intoxicating liquor; from Muscogee superior court — Judge Howard. February 21, 1920.
    It was testified that in the back of the defendant’s car, which he was driving, a jug of whisky was found, without anything wrapped around it. In his statement at the trial he said that a named person, whom he had taken in the car, put a package in it,— "lifted up the apron and stuck this package in the back of the car,” that he paid no attention to it, and that the person named saw officers coming down the street and jumped out of the car and ran, and the officers came to the car and got a jug out of it; and this was all he knew about it. Others testified that they saw the person mentioned by the defendant get out of the car and run.
   Luke, J.

1. The conviction of the defendant in this case was not entirely dependent upon circumstantial evidence; indeed, the evidence was positive that he had in his possession alcoholic liquor. It is not error for the court to fail to charge the law of circumstantial evidence without request therefor, unless a conviction of the defendant is wholly dependent upon circumstantial evidence.

2. The court did not err in charging the jury that in misdemeanor cases all who participate are principals. This charge was required, if for no other reason, by the defense set up by the defendant. To have failed so to charge would have been error.

3. The evidence authorized the verdietj which has the approval of the trial judge. Bor no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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

R. Terry, for plaintiff in error.

C. F. McLaughlin, solicitor-general, contra.


text:
    11401.
    Rogers v. The State.
    Decided May 11, 1920.
    Indictment for possession of liquor; from Muscogee superior • court — Judge Howard. February 21, 1920.

      R. Terry, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Bloodworth, J.

The first and second grounds of the amendment to the motion for a new trial are but amplifications of the general grounds; the special grounds of the motion are without merit; there was evidence to support the finding of the jury, which is approved by the trial judge, and the judgment is

Affirmed.

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


text:
    11402.
    Weathers v. The State.
    Decided May 11, 1920.
    Accusation of larceny; -from city court of Millen—'Judge Dekle. February 21, 1920.

      W. C. Henson, for plaintiff in error.

      W. Woodrum, solicitor, contra.
   Broyles, C. J.

In this case the motion for a new trial contains only the usual general grounds; the evidence authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11405.
    White v. The State.
    Decided May 11, 1920.
    Indictment for obstructing process; from Upson superior court —-Judge Searcy. January 24, 1920.

      C. P. Goree, Philip Weltner, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Broyles, C. J.

1. In all criminal eases the bill of exceptions must be tendered to the judge within twenty days from the date of the judgment complained of. Civil Code (1910), § 6153.

(a) In the instant case it does not appear that the bill of exceptions was tendered within the required time; it appears merely that it was tendered within thirty days from the date of the judgment excepted to. , Under repeated rulings of the Supreme Court and of this court the writ of .error must be and is

Dismissed.

Luke and Bloodworth, JJ., concur.