text:
    15190.
    FUTRELL v. THE STATE.
    1. The indictment against the defendant in this ease as director of a bank alleged to have become fraudulently insolvent was sufficient as against those grounds of the demurrer which were insisted upon. It was not necessary to join the president and other directors of the bank as defendants in the indictment.
    2. Objections propter affectum to grand jurors can be presented only by challenge before indictment, where then known to the accused. Refusal of the court to consider them when thus presented does not authorize consideration of them when subsequently presented as grounds of a plea in abatement.
    3. The court, erred in failing to charge the jury that the paid-in capital stock of the bank should not be considered as a liability, in determining as to the solvency or insolvency of the bank. Such an instruction was not rendered unnecessary by the statement of the judge, in a colloquy with counsel when ruling on the admissibility of testimony, that he would so charge the jury.
    4. The court erred in failing to instruct the jury that if the entire property and assets of a bank are sufficient to discharge its liabilities, it is not insolvent within the meaning of section 204 of the Penal Code, although the bank may not be able to pay its debts immediately as they become due, or to pay its depositors on demand.
    Decided March 6, 1924.
    Indictment for fraudulent insolvency of bank; from Effingham superior court—Judge Hardeman. October 29, 1923.
    The indictment as set out in the record charged W. B. Futrell with “the offense of felony, for that the said W. B. Futrell did, on the 18th day of January, 1921, in the county aforesaid, unlawfully and with force of arms, being then and there director of the Farmers & Merchants Bank, a chartered bank, incorporated under the laws of said State [of Georgia], and, as such director of said chartered bank, he being by law then and there charged with the fair and legal administration of its affairs, the said Farmers & Merchants Bank, then and there pending and during the said official charge responsibility of said ~W. B. Futrell as director thereof, did then and there be and become fraudulent insolvent, said insolvency then and there having resulted from fraud and having been brought about by fraud, and having originated in fraud, contrary to the laws of said State,” etc.
    The grounds of the demurrer were: (1) The indictment is not sufficient in law. (2) There is a nonjoinder of parties; the statute specifically states that the president and directors shall be punished, and the president and other directors are not joined nor their names given in the indictment, and no reason is given for the nonjoinder. (3) The indictment 'fails to state why the defendant as director had sole official charge and responsibility for the solvency of the bank. (4) The indictment fails to allege any act or circumstance constituting the alleged fraudulent insolvency, and does not give the defendant sufficient information to enable him to prepare for his defense, and does not inform him of the specific act or acts on his part which caused the bank to become fraudulently insolvent. (5) The statute on which the indictment is based is unconstitutional, as it would deprive the defendant of his liberty and property without due process of law. The last ground was abandoned in the brief of counsel for the plaintiff in error.

      Oliver & Oliver, for plaintiff in error.

      A. 8. Anderson, solicitor-general, contra.
   Broyles, C. J.

An indictment which charges a certain director of a certain chartered bank, incorporated under the laws of the State, with causing or allowing the bank to become fraudulently insolvent, during his sole official charge and responsibility as director thereof (see Penal Code of 1910, §204; Ga. L. 1919, p. 219, Park’s Code Supp., vol 11, § 202bb), is not subject to a demurrer which sets up that there is a nonjoinder of parties in the indictment because “the statute specifically [states] that the president and directors shall be punished; and the president and other directors are not joined in said indictment, nor their names given, nor is any reason stated for the nonjoinder.”

Nor was the indictment subject to any other ground of the demurrer insisted upon by the plaintiff in error (the ground that the statute upon which the indictment was based is unconstitutional is expressly abandoned in the brief of counsel for the plaintiff in error).

It is recited in the bill of exceptions that the defendant, before the indictment was returned, presented his challenge to the array of the grand jurors, and that the court refused to pass upon it and directed that it be filed in court. Subsequently a plea in abatement was filed, setting up, first, that all the jurors who returned the indictment were incompetent, for certain stated reasons ; and, second, that certain named jurors were incompetent for other stated reasons. The allegations in the plea were denied by the solicitor-general, and the issues thus raised were submitted to the court, without the intervention of a jury. After hearing evidence thereon the court found against the plea; and the court overruled the motion for a new trial on the finding and judgment against the plea. The defendant excepted to the finding and judgment on the plea, but did not except to the refusal of the court to pass upon his challenge to the array. It appearing, from the facts stated in the plea in abatement, that all of the objections (now insisted upon) to the grand jurors were propter affectum, and that the objections were known to the defendant prior to the return of the indictment, the objections could not be the basis of a plea in abatement, but could only be presented by challenge before the return of the indictment. Evans v. State, 17 Ga. App. 120 (2) (86 S. E. 286), and citations; Nichols v. State, 17 Ga. App. 609 (87 S. E. 817); Cook v. State, 22 Ga. App. 770 (3), 775 (97 S. E. 264). And the fact that they were so presented in the instant case and that the court refused to pass upon them does not permit them to be subsequently considered as grounds of a plea in abatement. There can be no plea in abatement in a criminal case until after the return of an indictment, and obviously the plea cannot be based upon grounds which must be presented before the indictment is returned. The court, therefore, did not err in finding against the plea. It is immaterial that the judge found against it on its merits. The same result was reached. The refusal of the court to pass upon the objections to the jurors when properly presented— prior to the finding of the indictment—is not excepted to, and therefore cannot be considered by this court.

One of the grounds of the motion for a new trial complains that the court erred in failing to charge the jury that the paid-in capital stock of the bank should not be considered as a liability, in determining the solvency or insolvency of the bank. This ground is meritorious and requires another trial of the ease. “The capital stock of a bank issued and paid for is not a liability that'should be included and taken into account in determining the question of solvency or insolvency of the bank, on the trial of one of its officers indicted under the Penal Code, § 204.” Fordham v. State, 148 Ga. 758 (6) (98 S. E. 267). The judge, in his order overruling the motion for a new trial, stated as to this ground of the motion that while he did not so charge the jury, he stated emphatically this principle of law to them during the trial of the case; and furthermore that the evidence demanded a finding that the bank was insolvent, and, therefore, that his failure so to charge was harmless error. We cannot agree with this view of the trial court. The record shows that what the judge stated as to this principle of law during the trial of the case occurred during a colloquy between the court and counsel for the defendant as to the admissibility of certain evidence, and the judge held that the amount of the paid-in :capital stock of the bank, under the ruling in Griffin v. State, 142 Ga. 636 (83 S. E. 540), should not be considered by the jury as a liability in determining the solvency or insolvency of the bank, and he stated that he would so charge the jury. The court, however, failed so to charge, and we think this failure was prejudicial to the accused. Even if the jury understood the judge’s ruling upon this principle of law during the trial of the case, they might very well have considered that he had come to another conclusion when he failed to charge them as announced. Nor can we hold, as a matter of law, that the evidence demanded a finding that the bank was insolvent.

Under the facts of the case it was also material error for the court to fail to instruct the jury that if the entire property and assets of a bank are sufficient to discharge its liabilities, it is not insolvent within the meaning of section 204 of the Penal Code, although the bank may not be able to pay its debts immediately as they become due, or to pay its depositors on demand. Griffin v. State, supra.

The other grounds of the amendment' to the motion for a new trial are either without substantial merit or relate to such errors as are not likely to recur upon another hearing of the case.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15191.
    Wendelkin v. The State.
    Decided March 6, 1924.
    Certiorari; from Effingham superior court—Judge Strange. October 16, 1923.
   Luke, J.

It affirmatively appearing from the bill of exceptions that the same was not tendered to the judge within 20 days of the judgment excepted, to, this court has no jurisdiction over the ease.

Writ of error dismissed.

Broyles, O. J., and Bloodworth, J., concur.

J. Hartridge Smith, for plaintiff in error.

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


author: Bloodworth, J.

text:
    15192.
    Herrington v. American Agricultural Chemical Co.
    Decided March 6, 1924.
    Complaint; from city court of Waynesboro—Judge W. H. Davis. October 23, 1923.

      H. V. Heath, for plaintiff in error.

      H. 0. Hatcher, H. A. Neely, contra.
   Bloodworth, J.

Under the pleadings and the facts of this case the judge did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Per Curiam. Bloodworth, J.,

text:
    15193, 15194.
    Barrett v. The State (two cases).
    Decided March 6, 1924.
    Indictments for violation of prohibition law; from Floyd superior court—Judge Wright. November 1, 1923.

      Harris & Harris, for plaintiff in error.

      E. S. Taylor, solicitor-general, contra.
   Per Curiam.

In each of these cases (in one of which the defendant was convicted of making intoxicating liquor, and in the other of’ possessing such liquor) the evidence amply authorized the conviction. The still was found in his hog lot and within a short distance from his house, and had been operated there for several months. The jury had a right to disbelieve the defendant’s statement, and, with his statement excluded,' the conviction was demanded.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

Bloodworth, J.,

dissenting. The evidence upon which the State relies

for a conviction in these eases is entirely circumstantial, and in neither of them is it sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.


author: Broyles, C. J.

text:
    15197.
    APPLEBY et al. v. TOMLINSON.
    Where a purchaser of land sues the seller on account of an alleged deficiency in the quantity of the land, and the deed executed by the vendor (which is attached to and made a part of the petition) shows that the land was sold by the tract and not by the acre, and that the number of acres was stated in the deed only as a part of the description of the land, and not by way of covenant, and where the petition fails to allege fraud on the part of the vendor, the plaintiff shows no right to recover, and the petition is subject to general demurrer.
    Decided March 6, 1924.
    Action for breach of warranty; from Coffee superior court— Judge Summerall. October 29, 1923.

      B. A. Moore, Bart & Slater, for plaintiffs in error.

      Biclcerson & Kelley,-Casey Thigpen, contra.
   Broyles, C. J.

This is an action to recover the value of 57% acres of land—the alleged shortage in land conveyed by the defendants to the plaintiff’s deceased husband. The defendants interposed a general and special demurrer to the petition. The demurrer was overruled and the defendants excepted pendente lite. Upon the trial of the case, and at the conclusion of the evidence for both sides, the plaintiff’s counsel waived a recovery of the value of 7.8 ácres, and thereafter, on motion, the court directed a verdict in favor of the plaintiff for the value of 50 acres. The defendants made a motion for a new trial, which was overruled, and they excepted. '

As we view the ease, it is only necessary to discuss the general demurrer to the petition. It is the settled law of this State, that if a sale of land be by the tract, rather than by the acre, a deficiency in the acreage cannot be apportioned, in the absence of actual fraud on the part of the vendor. Civil Code (1910), § 4122; Land Trust Co. v. Morgan, 22 Ga. App. 388, and cit. The petition in the instant case contains no allegations whatever of fraud, or of mutual mistake, or want of knowledge on the part of the vendee, or as to what opportunity he had for knowledge. The deed which forms the basis of the present suit, and which is attached to and made a part of the petition, states that “the said parties of the first part, for and in consideration of the sum of forty-six hundred dollars in hand paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, 'convey, and confirm unto the said party of the second part, his heirs and assigns, all of the following described tracts and parcels of land [italics ours], to wit: One hundred seventy-three and four-tenths (173.4) acres of lot of land No. 172 in the sixth district of Coffee County, Georgia, described as follows: Beginning at the northeast corner of said lot and running west along the north original line 2025 feet; thence south 7 deg. 30' west 1169 feet to Cypress Branch;-south 26 deg. 30' east along said branch 870 feet; thence south 23 deg. east along said branch 800 feet; then south 31 deg. 30' west 1530 feet along said branch to corner post; thence 2310 feet east to the east original land line of said lot; thence north along the east original land line 3824 feet to the northeast corner of said lot, the point of beginning. Also fifty-one and four-tenths (51.4) acres of lot of land No. 197 in the sixth district of said county of Coffee, described as follows: Beginning at a point on the west original land line 2808 feet south of the northwest corner of said lot and running west 25 deg. north 1100 feet; thence south 8 deg. north 1050 feet to the run of Carver’s Creek; thence south 12 deg. east along the run of Carver’s Creek 600 feet; thence west 50 deg. 10' south 1440 feet; thence west 7 deg. 30' north 1066 feet to the west original line; and thence north along the west original line of said lot 775 feet to the point of beginning. Also that certain tract, parcel, or strip of land lying south and east of a certain 50 acre tract, in the northwest corner of said original land lot No. 197 in said sixth district of said county, owned by Frank McKinnon (or formerly owned by him) containing 15 acres, more or less; said tract, parcel, or strip of land lying between the 51.4 acre tract above described and the said 50-acre tract of said McKinnon, the lines thereof being already agreed upon between the coterminous landowners [italics ours]. The said above and foregoing described tracts of land include all of the land described in and embraced in that certain deed executed and delivered., by Mitchel Viclcers to the said grantors herein, dated November 12th, 1917, reference to which is made for greater certainty of description [italics ours].”

In the light of this deed and of the decision of the Supreme Court in Kendall v. Wells, 126 Ga. 343 (55 S. E. 41), we are constrained to hold that in the instant case the petition shows, as a matter of law, that the sale was by the tract rather than by the acre. The headnotes of the decision in the Kendall ease are as follows: “1. A deed based upon the express consideration of $371 described the land cónveyed as follows: ‘A certain tract of land.in the 8th land district of Colquitt county, Ga., known and described in the plan of said 8th district as part of west half of land lot No. 85 containing fifty (50) acres in the southwest corner of said lot 85, and bounded as follows, to wit: commencing on the south line of said lot 85, on the west side of Georgia Northern Eailway Co. railroad and 100 feet from the center of the railroad track, and running west 34 chains along said land line to the southwest corner of said lot 85, thence north along west land line said lot 85 13 chains to stake, thence east 25 chains to within one hundred feet Ga. Northern Ey. track to a stake, thence south along said right of way to place of commencing.’ Held, that this was a conveyance of land by the tract and not by the acre. 2. Where land has been sold and conveyed by the tract, the number of acres being mentioned in the deed only as part of the description and not by way of covenant, in the absence' of actual fraud no recovery can be had by the purchaser against the vendor on account of a deficiency in quantity. 3. The allegations of the declaration were not sufficient on the subject of fraud, or want of knowledge by the vendee, or what opportunity he had for knowledge.”

It follows from what has been said that the court erred in overruling the general demurrer to the petition, and this error rendered the further proceedings in the case nugatory.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15198.
    Bankston v. Barnesville Bank.
    Decided March 6, 1924.
    Complaint; from city court of Barnesville—Judge Eedding. October 16, 1923.
    The bank sued H. II. Bankston upon his note to it, and he pleaded discharge in bankruptcy. This note was in renewal of one given under circumstances stated as follows: The cashier of the bank testified: “I made the loan as such to H. II. Bankston, represented by the note. H. H. Bankston came into the bank in the spring of 1920, . . the day the original note was dated, and wanted to borrow $1000, and stated that his father told him he would sign the note with him the next time he came to town. I told him . . that we would lend him the money on his and his father’s note. . . He stated that he was going to Atlanta to buy some fertilizer and that he was in a hurry, as the train was nearly due, and his father could not come to town that morning, and for me to fix up the note, and I did so and placed the money to his credit and gave him deposit slip for it; which I did less the interest. His father never did sign the note, and refused to do so. I never made demand on his father to sign the note sued on; it was the defendant’s place to do this. The money, or a part of it, remained on deposit for some time. The defendant failed to pay the first note when it was due, and came into the bank and said his father told him to renew the note and make the interest as reasonable as possible. I don’t think he stated then that his father would sign the renewal note.” The note sued on was for $1020, was dated November 23, 1920, and was signed by H. H. Bankston alone. H. E. Bankston testified: “I knew about the time my son H. H. Bankston got the $1000 from the Bank of Barnesville in the spring of 1920 and went to Atlanta to buy some fertilizer. I did not tell him to tell the bank that I would sign the note with him for the $1000, and did not tell him that I would do so.” 'It appeared by admission and agreement at the trial that the defendant was regularly discharged in bankruptcy, that the note sued on was listed on his schedule, and that the plaintiff had notice of the proceeding and of the listing of this claim.
   Luke, J.

1. A discharge in bankruptcy does not relieve the bankrupt from liability upon an action for fraud or for obtaining money by false pretenses or false representations. Brandt v. Element, 20 Ga. App. 664 (93 S. E. 664), and citations.

2. Eor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

The verdict was for the plaintiff. The defendant, in his motion for a new trial, alleged that the court erred in admitting the testimony as to the transaction between the bank cashier and the defendant (set out in the motion), over the objection that the plaintiff’s petition “did not allege fraud or did not contain any other allegation as to fraud.” The other special ground of the motion for a new trial was as follows: “Because the court erred in charging the jury as follows, to wit: At the conclusion of the court’s charge to the jury the following query was propounded to the court by juror Moyer: ‘What effect or bearing would the renewal of the note have upon this case ?’ The court instructed that the renewal would have no effect if fraud was perpetrated in the original note. Movant alleges that the above charge and instruction was contrary to law.”

Citations by counsel: IT. S. Comp. Stat., §§ 9585-6; 20 Ga. App. 664; 8 Ga. App 299; 13 Ga. App. 501; 24 Ga. App. 386; 31 Ga. App. 113; 134 Ga. 721.

B. H. Manry, Herman M. Johnson, for plaintiff in error.

Bolls & Barrett, contra.


text:
    15204.
    Alexander v. The State.
    Decided March 6, 1924.
    Indictment for larceny of automobile; from Fulton superior court—Judge Howard. October 20, 1923.

      Arthur W. Powell, for plaintiff in error.

      John A. Boykin, solicitor-general, B. A. Stephens, Ralph H. Pharr, contra.
   Broyles, C. J.

1. The accused was convicted of the larceny of an automobile. Under the evidence adduced, the court did not err in failing to instruct the jury that if the owner of the property alleged to have been stolen consented to its being taken and carried away, or helped the defendant in any way to steal the property or made it easier for him to steal it, the defendant should not be convicted. The cases (Williams v. State, 55 Ga. 391; Watson v. State, 6 Ga. App. 801, 65 S. E. 813) cited by counsel for the plaintiff in error are easily differentiated by their particular facts from the ease at bar.

2. The verdict was amply authorized by the evidence, and the overruling of the motion for a. new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


author: Broyles, 0. J.

text:
    15214.
    WHIDDON v. THE STATE.
    1. Where the defendant in a criminal case puts his character in issue, the direct examination of the witnesses offered to establish his good character must be confined to his general reputation. His counsel will not be permitted to inquire as to specific acts or transactions of the accused. Moulder v. State, 9 Ga. App. 438 (71 S. E. 682); Alexander v. State, 8 Ga. App. 531 (3) (69 S. E. 917). Under this ruling the court did not err in the instant case in excluding testimony (elicited by the defendant’s counsel on the direct examination of a character witness for the defendant) that the accused was a member and a deacon “of the church at Hickory Springs.” Furthermore, it appears from the approved brief of the evidence that another witness, the pastor of the “Hickory Springs Church,” testified that the -accused was a member and deacon of that church, and that the evidence of this witness went to the jury.
    2. In the state of the record it does not clearly appear in the second ground of the amendment to the motion for a new trial (complaining of the exclusion of certain testimony) what particular part of the testimony therein set out was excluded. Moreover, substantially all of the testimony thus set forth appears in the approved brief of evidence transmitted to this court. This ground is, therefore, without substantial merit.
    3. The charge of the court was full and fair, and, under the particular facts of the case, was not subject to any of the exceptions taken.
    4. The verdict of assault and battery was authorized by the evidence.
    Decided March 6, 1924.
    Conviction of assault and battery; from Tift superior court— Judge Eve. November 19, 1923.

      J. 8. Ridgdill, C. A. Christian, Perry & Tipton, for plaintiff in error. R. 8. Foy, solicitor-general, contra.
   Broyles, 0. J.

In our judgment the fourth headnote alone requires elaboration. The accused, a married man and a grandfather, was charged with an assault with intent to rape, and was found guilty of an assault and battery. His alleged victim was an orphan girl, eleven years old, living with her grandmother, who resided only a short distance from the defendant’s home. Upon the trial the girl testified that her grandmother sent her one morning, about nine o’clock, to the defendant’s home to buy some onions; that when she reached his house he invited her in, and that while they were in the hall “he told me to let him see how heavy I was, and he picked me up and lifted me and put on a chair, and then he put me in his lap and rubbed his hand all down here on my private parts and patted me like that, and after awhile he told me to come on and go in the room, and I went with him and he got a quilt and put it on the floor and told me to lie down, and I did, and he then opened his pants and pulled out his old works, and he first shook it and then put it inside me. He shook it first and got to pushing and pulling as far as he could, and he ask me did I love candy, and ask me did it hurt, and I told him ‘Yes,’ it hurt me. I was afraid he would kill me; and he was kissing me all between my breasts, and directly he got up and I did too, and he put the quilt up and went to the shelf and got some candy and gave it to me, and he went out to his garden and got the onions, and while we were out there he told me not to tell the rest of the girls about it, and come back again and get some honey, and after I left I went on home and told grandma about it. When he laid me down he pulled up my clothes, and took out his private parts and put it into my private parts. . . When he gave me the piece of candy I ate it right then. I was excited and scared when I took the candy. I didn’t know what he was going to do at first. I thought he might kill me after he done it is the reason I didn’t scream. Nobody told me to say that, he was not mad with me and did not talk rough to me. I was just scared and did not know what he might do. . . I told grandmother everything, I told her just what he done. I was scared a little bit then, I was not crying, I did not cry over at my house, I did not cry over at Mr. Whiddon’s house, nobody told me to cry on the stand. . . After I told my grandmother what he done to me I changed my clothes. I changed them because they just didn’t feel right, they were wet, they were uncomfortable, I wanted to change them. There was nobody at Mr. Whiddon’s house but him.”

The child’s grandmother (apparently the only person who examined the child after the alleged assault), after testifying that She sent the girl to the defendant’s house to buy a dime’s worth of onions, and that she returned in twenty-five or thirty minutes and told her about the defendant’s assault, testified as follows: “I took her into the room and told her to lay down and let me see, and I examined that child. I found her bruised and nervous, she was nervous and there were marks on her place here. . . I found bruises and marks on her, proving to me that she had not lied to me, and that she had come in contact with something, the marks were there, gentlemen, unmistakably, and I tell you for all eternity the marks were there, his filth was on that child, unmistakably so. . . There was filth on her private parts.” A witness for the defendant testified that two or three days after the alleged assault he asked the child’s grandmother “if the child was bruised, and she said she was not, nothing except some little irritation, and she thought that was from fingers.”

While the above-stated evidence amply authorized a finding that an assault with intent to rape had been committed, it did not demand such a verdict, and the verdict of assault and battery was not contrary to law and the evidence. The jury were authorized to find that this little eleven-year-old girl was totally ignorant and innocent as to sexual intercourse, and that she was mistaken as to the penetration of her private parts. They were also authorized to find, under all the particular facts of the case, that the defendant assaulted her without any intention of actually having sexual intercourse with her, but with the lascivious desire of rubbing his private parts against hers and satisfying his animal passions by provoking a seminal discharge. See, in this connection, Dalton v. State, 27 Ga. App. 288 (108 S. E. 122), and Byrd v. State, 28 Ga. App. 504 (111 S. E. 924).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15217.
    GRESHAM v. THE STATE.
    1. The venue as alleged in the indictment being proved by uncontradicted evidence, the alleged error in the charge of the court, in omitting reference to the venue when stating the material allegations which the State was required to prove, is not cause for a new trial.
    2. The ground of the motion for a new trial as to the failure of the court to give instructions to the jury (not requested), On the necessity of corroborating the testimony of an accomplice, is without merit, the evidence failing to show that the witness referred to in this ground was an accomplice, and the State not relying wholly upon the testimony of the alleged accomplice.
    3. The refusal to continue the case cannot be held to be an abuse of the discretion of the trial judge, under the facts of this case.
    4. The alleged newly discovered evidence being largely cumulative and impeaching in its character, and not such as probably would produce a different result on another trial, it did not require a new trial.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Troup superior court—Judge Roop. November 12, 1923.

      A. Hi Freeman, for plaintiff in error.

      W. F. Atkinson, solicitor-general, contra.
   Luke, J.

It is contended that the court erred in charging the jury as follows: “The burden is on the State to show,tand to show beyond a reasonable doubt, each and every material allegation that is set up in the bill of indictment, and the material allegations which the State must thus prove are these: that Eric Gresham and Irb Ison (they being jointly indicted), who must be identified as the defendants here on trial, on or about the 29th day of March, 1923, unlawfully did distil, manufacture, or make alcoholic liquors, or •spirituous liquors.” Movant contends that the jury, under this charge, were instructed that he would be guilty of violating the law and subject to trial and conviction in Coweta county, Ga., if they should find from the evidence that he was guilty of manufacturing liquor in the State of Georgia; and it placed a burden upon him which the law does not require him to carry. This charge was not error, for, under the evidence, there was no issue as to venue, the venue as alleged in the indictment being proved by uncontrádicted evidence that the still at which the liquor was made was in the county named. The jury were not misled and the defendant suffered no harm by reason of this excerpt from the charge of the court. Bailey v. State, 23 Ga. App. 146 (3) (98 S. E. 89).

There is no merit in ground 4 of the amendment to the motion for a.new trial, wherein error is assigned upon the court's failure to charge the jury upon the necessity of corroborating the testimony of an accomplice. The evidence did not show that the witness referred to in the ground was an accomplice, and moreover the State did not rely wholly upon the testimony of the alleged accomplice. Cantrell v. State, 141 Ga. 98 (3) (80 S. E. 649).

The assignment of error upon the court's refusal to continue the case will not work a reversal. The refusal to continue was within the discretion of the court, and this court cannot say that this discretion was abused.

The grounds of the motion for a new trial based on alleged newly discovered evidence will not work a reversal. This court cannot say that the newly discovered evidence, which is largely cumulative and impeaching in its character, would probably produce a different result upon another trial of the case.

The defendant has had a legal trial, the verdict of the jury, which was authorized by the evidence, has the approval of the trial judge, and for no reason pointed out was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Blood-worth, J.,. concur.


text:
    15220.
    Letenas v. City of Atlanta.
    Decided March 6, 1924.
    Certiorari; from Fulton superior court—Judge Humphries. November 12, 1923.

      D. K. Johnston> for plaintiff in error.

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

Letenas was convicted of violating an ordinance of tlie City of Atlanta as to pool selling, and sued out certiorari. Tlie judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15225.
    Benton et al. v. The State.
    Decided March 6, 1924.
    Indictment for arson; from Houston superior court—Judge Malcolm D. Jones. November 24, 1923.
    Paragraph 2 of the decision refers to the following part of the charge of the court; “The State contends that at the time mentioned in the indictment the barn of Mr. Aultman’s place was burned wilfully and maliciously. The State contends that a few days before the burning of this barn Mr. Aultman and one of the defendants had a difference about the management of some stock on the place and that Mr. Aultman had slapped one of the defendants’ face; that this generated hate on the part of this defendant; that this particular defendant (I think it was Ike Benton), together with Willie Miller, who had a grudge against a man working for Mr. Aultman, at the time mentioned in the indictment, at night, went by his place, having previously procured a bottle of kerosene oil or gasoline, or some other substance that readily burned, that they reached through a crack in Mr. Aultman’s barn door and poured the inflammable substance on the inside of the barn, struck a match, and then ran. Now that is the contention of the State. If you believe that contention, these defendants are guilty as charged in the indictment, and you should convict them.”
   Bloodworth, J.

1. Under the ruling in Cumming v. State, 155 Ga. 346 (2) (117 S. E. 378), where, upon the trial of a felony case and before arraignment, counsel for the defendant made the following announcement to the court: “We do hereby put the State’s counsel upon notice that we specifically refuse to waive anything in connection with the trial of this case,” and where, after the original panel of forty-eight jurors was regularly put upon the accused and exhausted, two additional panels, one of twelve and the other of six jurors, were called by the clerk, and in each instance the solicitor-general stated to them the case that was called for trial, and they were sworn true answers to make as to their competency as jurors, and the voir dire questions were put to each juror, and the defendant participated in selecting the jury, without making any objections or making a challenge to the array, the defendant will not be heard, after conviction, to urge that the panel was not properly put upon him.

2. Eor no reason assigned did the court.err in the charge of which complaint is made in the amendment to the motion for a new trial.

3. The evidence supports the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.

In the motion for a new trial it is contended that this part of the charge was argumentative; that it was prejudicial to the defendants and was calculated to mislead the jury, in that it would have authorized the jury to convict the defendants upon mere belief that the contention of the State was true; and that the latter part of the statement of contentions (quoting the part as to a grudge against Mr. Aultman and the pouring of an inflammable substance into the barn and striking a match to it) had no basis in the evidence, outside of the alleged confessions of the defendants. It is then stated that the court, immediately after so charging, differentiated the contentions of the State based upon proved facts from the alleged confessions,'as follows: “As a further contention,, the State says that upon the arrest of these defendants they both confessed, and confessed to a number of people, and confessed at different times, their implication in the burning, and stated the circumstances, and bore each other out in the statement about these circumstances, and that these confessions identify and point to these two defendants, beyond any reasonable doubt, as the parties who did the burning. Now if you believe these contentions of the State, it would be your dutjr to convict.”

Marx Kunz, Duncan & Nunn, for plaintiff in error.

Charles II. Garrelt, solicitor-general, contra.


text:
    15226.
    Holland v. The State.
    Decided March 6, 1924.
    Indictment for bastardy; from Whitfield superior court—Judge Tarver. November 17, 1923.

      George G. Glenn, John G. MUchell, for plaintiff in error.

      J. M. Lang, solicilor-general, contra.
   Broyles, C. J.

1. The alleged newly discovered evidence is cumulative and impeaching and is not of such a character as would likely produce a different verdict upon another trial of the case.

2. There is no substantial merit in any special ground of the motion for a new trial.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luhe and Bloodioorth, JJ., concur.


text:
    15227.
    Ison v. The State.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Coweta superior court—Judge Eoop. November 22, 1923.

      A. H. Freeman, for plaintiff in error.

      W. Y. Atlcinson, solicitor-general, contra.
   Luke, J.

Practically the same assignments of error are urged in this ease as in the ease of Gresham v. State, ante, 779. Por no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodioorth, J., concur.


author: Bloodwoetii, J.

text:
    15238.
    Hall v. The State.
   Bloodwoetii, J.

1. When considered in the light of the entire charge, there is no error in any of the excerpts therefrom of which complaint is made in the motion for a new trial.

2. When all the evidence in the case is considered, no error requiring the grant of a new trial was committed when the court admitted the evidence of which complaint is made in special grounds 5 and 6 of the motion for a new trial.

3. “In the absence of a timely written request, it is not erroneous for the court to omit to charge the law upon the subject of the impeachment of witnesses.” Washington v. State, 138 Ga. 370 (1) (75 S. E. 253), and eit.

4. For no reason assigned did the court err in questioning the witness as complained of in special ground 9 of the motion for a new trial.

Decided March 6, 1924.

Indictment for manufacture of liquor; from Whitfield superior court—Judge Tarver. November 17, 1923.

W. E. & W. G. Mann, for plaintiff in error.

J. M. Lang, solicitor-general, contra.

5. There is ample evidence to support the finding of the jury, which has the approval of the trial judge; no error of law was committed; and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Broyees, C. J.

text:
    15242.
    Jones v. The State.
    Decided March 6, 1924.
    Petition for certiorari; from Fulton superior court—Judge Humphries. November 15, 1923.

      J. E. Garst, R. 0. Lovett, for plaintiff in error.

      John A. Boylcin, solicitor-general, Roy Dorsey, solicitor, E. A. Stephens, contra.
   Broyees, C. J.

1. A condition precedent to the hearing of a case on its merits in this court is the payment of costs, or the filing in the clerk’s office by the plaintiff in error of an affidavit signed by him of his inability to pay the costs. ■ In the instant ease the affidavit in forma pauperis, not having been signed by the plaintiff in error, is a mere nullity and amounts to nothing.

2. Upon the call of the ease in this court, it appearing from the record that no affidavit in forma pauperis had been executed by the plaintiff in error, the case was submitted subject to the payment of costs within ten days, and that time having elapsed without such payment being made, this court is without authority to entertain the case.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    15243.
    BEACH v. THE STATE.
    A conviction of the offense of manufacturing intoxicating liquors was not authorized by the evidence.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Whitfield superior court—Judge Tarver. November 17, 1923.
    From the evidence it appeared that officers found in a branch in the woods a hot still and a considerable quantity of beer and whisky; that the officers, when in the neighborhood of the still and before they found it, heard shots, which they took to be a warning to persons working at the still, and they did not find anybody there. It was testified that they took a trail from the still and followed it about half a mile and up a hill to the house of the defendant’s brother-in-law, Miles Moore, and there found the defendants and a man named McQuinn (or McKin), with Moore and his wife and her sister, and found in the house a bottle of whisky. Ledford, one of the officers, after testifying that he saw the defendant and McQuinn there, added: “I remember we saw him going, and Mr. Cobb called these men out in the yard and arrested them, and Mr. Cobb told him he couldn’t but he did go anyway, and I run to the back of the house and had to stop him with a gun. . . Mr. Cobb shot at McQuinn after he ran oil.” “This defendant had on what I would call work clothes when we arrested him, and we took it to be still slop on them. I have seen a good deal of still slop on clothes, and that in my judgment was still slop. . . There was fresh travel back that way from the still; it was as slick since the rain back there as to a man’s spring. We didn’t find any paths leading to any other houses; we stopped right there, didn’t go anywhere else. When this trail came to the top of the hill it came into a road, but there was no travel in the other direction of the road since the rain. . . This road ran right down to this man’s house, and all the travel since the rain ran to the house. They pulled the fire, in my judgment, when the shot was fired, because the still was full and some whisky was dripping out, and plenty of beer was there; we poured out about sixty gallons, I think. As we went up there anybody could have seen us, and . . just as we crossed over in the field the shots were fired up from the house and in a northerly direction of that still. . .We found a Mr. Stancell who came up to the still while we were there, and we arrested him too and brought him in. . ■> Staneell came down through the woods from a northerly direction and came into this trail, I will say, forty yards in front of us, right east of the still. I went over there and asked him what he was doing, and he first said, ‘Just looking around,’ and then said he was starting over there to see a sick woman and heard that racket, and came down to see what they were doing, and I followed back the way he came and found a ten-gallon keg of whisky. . . The still is down in a hollow and couldn’t be seen from the house” where the defendant was. “I doubt you could have seen the smoke or fire from the house without the smoke was going straight up.” “When we left the still that boy and the other one helped us to carry it.” “I think it was the latter part of June.”
    Another witness testified: “I have saw the defendant at a still, I think it was since Christmas; I think it was this year [1923]. I don’t know whether it was in operation or not. It was in a hollow right close to the Kirby place. . . on a thirty-acre piece of land owned by Minnie Warrenfels. It looked like it had been there some little bit. It had been operated some". Mr. Beach (the defendant) wasn’t doing anything when I was there. The still was running then. Jim Bailey and Arthur McKin were running it. The defendant had on his everyday clothes, I think. . . Dock McKin, a brother of Arthur, and Ollie Cavender were there also. I was just passing and went by. I knew the still was there before I went up. I suppose the still belonged to those other people; they were doing the running of it.” Miles Moore and his sister-in-law testified for the defendant and contradicted testimony of the State’s witnesses in material particulars. The defendant in his statement ac the trial said that he was not guilty and that he did not know anything about “that business;” that at the time referred to by the witnesses he had been out fishing and came by to see his brother-in-law and sister.

      W. E. <& W. Q. Mann, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Luke, J.

Beach was convicted of manufacturing intoxicating liquors. The evidence did not authorize his conviction, and for tills reason it was error to overrule his motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15249.
    Barlow v. The State.
    Decided March 6, 1924.
   Bloodworth, J.

Under the evidence in this case the judge properly charged the law of shooting at another; and as the evidence is ample to support a verdict for this offense, the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

Indictment for assault with, intent to mnrder—conviction of shooting at another; from Crawford superior court—Judge Mathews. December 1, 1923.

John B. Cooper, IT. 0. Cooper Jr., for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    15250.
    Barksdale v. The State.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Wilkes superior court—Judge Shurley. November 28, 1923.

      Clement E. Sutton, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Broyles, C. J.

The accused was convicted of manufacturing whisky, and his motion for a new trial was based upon the usual general grounds only. There was some evidence authorizing the verdict, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloochoorth, JJ., concur.


text:
    15251.
    Stalnaker v. The State.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Wilkes superior court—Judge Sliurley. November 29, 1923.

      Clement E. Sutton, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Luke, J.

The motion for a new trial complains that the verdict of guilty

was not authorized by the evidence. There is some evidence to authorize the defendant’s conviction, which conviction has the approval of the trial judge. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Jenkins, P. J.

text:
    14828.
    Adams Tailoring Company v. Thomas.
   Jenkins, P. J.

1. A judgment of the judge of the superior court, refusing in the exercise of his discretion to sanction a certiorari, will not be reversed unless a. verdict for the petitioner was demanded. Atlantic Coast Line R. Co. v. Bennett, ante, 626; Little v. City of Jefferson, 9 Ga. App. 878 (1) (72 S. E. 436); Rosenbusch v. Lester Book Co., 16 Ga. App. 539 (85 S. E. 675).

Decided March 13, 1924.

Certiorari; from Fulton superior court—Judge Humphries. June 28, 1923.

Plaintiff in error, a tailoring company, excepts to the refusal of the judge of the superior court to sanction a certiorari by -which it was sought to review a finding and judgment of the municipal court of Atlanta in favor of Thomas, who had brought suit against it for money paid in the purchase of a suit of clothes, under a written contract of conditional sale reserving title in the defendant company as vendor. The contract as offered in evidence provided that $7 should be paid before the plaintiff’s measure was taken and the goods cut, and after completion of the clothing, “the sum of $18.50 on delivery of said clothing” to the plaintiff, “and the further sum of $2 each week thereafter until all of the said sum for which this contract is made shall have been paid.” The total consideration was $51. The contract’contained this provision: “that if any of the obligations agreed to in this contract shall not be performed by either party hereto, that this contract becomes voidable at the option of and in favor of the one who has complied with the terms of the same and against the party hereto who has not complied with the same.” It was further provided that “the obligor agrees that if any misrepresentations are made by him to obtain said clothing, he will pay the whole amount of this contract before demanding delivery to him of said clothing.” The plaintiff’s signed contract stated his place of residence as “it 116 Capitol Ave., house No. 1.” The defendant contended that it was not liable, because the plaintiff had made a false representation as to his address, in that he did not live at the place stated in his contract, and therefore was bound, under the terms of the instrument, to “pay the whole amount of this contract before demanding delivery -to him of said clothing.” On the trial the defendant admitted that it had received from the plaintiff $25.50 under the terms of the contract. The plaintiff testified, without contradiction, that he resided in the rear of 116 Capitol Avenue in house No. 3. The defendant testified that upon investigation it found that the plaintiff did not live in the rear of 116 Capitol Avenue in house No. 1 as stated in his contract. Under the plaintiff’s uncontradicted testimony, however, “on the date of his last payment, to wit, $18.50,” the defendant’s “agent with whom he traded for the clothing . . told him that if he would pay the $18.50, he could get his suit, and after the payment of the said $18.50 to [the] agent, [defendant] told him that an investigation had showed that he made a misrepresentation in his written contract, that he said he lived at the rear of 116 Capitol Avenue, in house No. 1, and that he did not live there,” and the defendant refused to deliver the clothes except upon payment of the entire purchase price.

2. Conceding (but not deciding) tliat tlie purchaser’s statement of his residence as in the rear of “116 Capitol Avenue in house No. 1,” when he lived in the rear of “116 Capitol Avenue in house No. 3,” was upon its face necessarily a material misrepresentation under the contract, such as would have authorized the seller to exercise the right to require the purchaser “to pay the whole amount” of the contract price “before demanding delivery to him of [the] clothing” which he had bought from the defendant, the jury were nevertheless authorized to find from the . evidence that the seller, with knowledge of such misrepresentation, not only accepted from the purchaser the prepayment of $18.50 fixed by the contract as the amount of installment to be paid “on delivery of said clothing,” but with such knowledge expressly informed the purchaser, “if he would pay the $18.50, that he could get his suit.” Consequently, any right which the seller might have had under the contract to vary the original terms of payment and require the full consideration to be paid before delivery of the goods, by virtue of any such misrepresentation, was waived. A verdict for the plaintiff having been authorized, the superior court did not err in refusing to sanction the defendant’s certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Jackson & Echols, O. E. Moore, for plaintiff in error, cited:

27 Ga. App. 66; 122 Ga. 312; 23 Ga. App. 304; 5 Ga. App. 420; 10 Ga. App. 676.

Tillou Yon Nunes, John W. Brewer, contra, cited:

27 Ga. App. 66; 16 Ga. App. 539; 9 Ga. App. 878.


text:
    14832.
    First National Bank of Thomasville v. Sanders, administrator.
   Jenkins, P. J.

1. While a ruling sustaining a demurrer to a plea or answer, not being a final judgment, will not of itself support a writ of error, yet where, upon the striking of the defendant’s pleadings, a final judgment is entered for the plaintiff, a writ of error will lie to review the preliminary ruling striking all the defenses as controlling in the cause, provided error is also properly assigned on the final judgment. See Kennedy v. Savannah Buggy Co., 22 Ga. App. 762 (97 S. E. 196). Error being properly assigned in the instant case, and such evidence as may have been offered by the plaintiff after the case was rendered in default, in taking a final judgment before the judge of the city court, not being in any wise essential to the determination of the exceptions and the sole legal question raised, the motion of the defendant in error to dismiss the bill of exceptions, for the reason assigned that the judge’s certificate fails to specify that it “ contains all the evidence material to a clear understanding of the errors complained of,” as provided in section 6145 of the Civil Code (1910), must be denied. Dierks v. Smith, 119 Ga. 859 (1) (47 S. E. 203); Roberts v. Rowell, 152 Ga. 97 (108 S. E. 466); Shaine v. Block, 28 Ga. App. 329 (111 S. E. 79).

2. In a suit against a bank for a deposit, an answer admitting that the amount claimed by the plaintiff had been deposited as a joint deposit for the benefit of the plaintiff’s intestate and the one making the deposit, but denying that the defendant would be protected in paying out the amount sued for except upon authority of the legal representative of the one making the deposit, in addition to the authority of the plaintiff as legal representative, cannot be taken as a tender to the plaintiff of the amount sued for, such as would compel a judgment in his favor, although the answer also set forth that'“defendant is anxious to pay the sums mentioned, principal and interest, and now tenders same to the court, notifying plaintiff that defendant will be responsible for no interest after this date.”

3. Where a husband deposited in a bank a sum of money belonging to himself, in the name of his wife but with the understanding that all or any part thereof might be withdrawn either by himself or by the wife, but by no one else, thus reserving to himself a free right of withdrawal, but giving to the wife the same right, the effect was to make a joint deposit with the conditions stated attached thereto. Had the money been thus withdrawn by the wife or by the husband, as in Moore v. Citizens Bank of Ashburn, 21 Ga. App. 183 (2) (94 S. E. 90), the bank, under such conditions would in such disbursement have been protected against a suit by the legal representative of the other; but where the deposit remained intact and nothing was withdrawn by either the husband or the wife, both of whom subsequently died, the title to such moneys vested jointly in the estates of the husband and the wife. Under the banking act of 1919, article six, section 39 (Ga. L. 1919, p. 208); “when a deposit has been made, or shall hereafter be made, in any bank transacting business in this State in the names of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.” In the instant case suit was brought, not by either of said joint depositors, but by the legal representative of the wife, after both had become deceased. A strict construction of the statute does not authorize such a procedure; and where each of the joint depositors was dead, the bank was right in requiring the representative of the husband who in fact had owned the moneys to join in claiming the fund, in the absence of any appropriate proceedings to adjudicate their respective rights and interests. Accordingly, the court erred in sustaining the demurrer to the defendant’s plea and answer and in entering a judgment for the plaintiff.

Decided March 13, 1924.

Complaint; from city court of Thomasville—Judge Hammond. July 2, 1923.

W. I. MacIntyre, J. E. Graigmites, for plaintiff in error.

James B. Burch, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14846.
    Chalker v. Thornton.
   Jenkins, P. J.

1. The provisions of section 3037 of the Civil Code (1910), are as follows: “In the appointment of guardians the widowed mother shall have the preference, upon complying with the law. Among collaterals applying for guardianship, the nearest of Kin by blood, if otherwise unobjectionable, shall be preferred—males being preferred to females. The • ordinary, however, in every case may exercise his discretion according to the circumstances, and if necessary, grant the letters to a stranger in blood.” Prior to the adoption of the code it was said in Watson v. Warnock, 31 Ga. 716 (1), that “In Georgia no one has a right to the guardianship of an infant under the age of fourteen years, other than his own; but the power of appointment is vested in the ordinary, for the benefit of the child.” “The power is given to the ordinary to be exercised for the benefit of the infant, not the applicant. In Georgia no one can claim the guardianship of a child other than his own, as a right, no matter how clearly related.” After the adoption of the code it was held, in Johnson v. Kelly, 44 Ga. 485, that “a stranger cannot justly invoke the exercise of a discretion vested by law in the ordinary when the nearest of kin is unobjectionable;” and in Armor v. Moore, 104 Ga. 579, 581 (30 S. E. 821), the rule adopted appears to be that the next of kin, if unobjectionable, is “absolutely entitled to the guardianship without reference to other considerations.”

2. “In a contest between persons for the guardianship of the person and property of a child, to which neither is entitled as a matter of legal right, the ordinary, or on appeal the judge of the superior court, on his own motion or on request of the jury, may in his discretion ascertain the wishes of the child, by examination, as to which of the contesting parties it prefers for its guardian, although the child is under fourteen years of age.” Walton v. Twiggs, 91 Ga. 90 (1) (16 S. E. 313). In Watson v. Warnoek, supra, which was decided before the adoption of the code and was a contest between two grandparents, it was held that “the requests of the parent of the infant, on his death-bed, as to the guardianship of the person and property of the child, is a proper circumstance to be considered by the jury, and, all other things being equal, sufficient to turn the scale.” See also Churchill v. Jackson, 132 Ga. 666, 670 (64 S. E. 691, Ann. Cas. 1913E, 1203), which was also a contest between grandparents of the child. It would seem to be doubtful, however, whether- such declarations in favor of a stranger would be admissible if objected to, against one seeking appointment as next of kin, unless such declarations could be construed as throwing light upon the question of fitness. No exception is here made to this admission.

Decided March 23, 1924.

Appeal; from Clarke superior court—Judge Fortson. May 28, 1923.

George H. Thornton, filed in the office of the ordinary of Clarke county an application to be appointed guardian of the person and property of Joan Wise McGregor, aged twelve years, alleging that both her father and her mother were dead; that, during the lifetime of her mother, Mrs. Louise C. McGregor, the mother was her natural guardian and also the guardian of her property, under appointment of the court of ordinary of Clarke county; that she (the minor) had property of the approximate value of $7500, consisting of 68 shares of the capital stock of The McGregor Company, a corporation of said county, and an interest in the former home place of her grandfather, D. W. McGregor, deceased, on Dearing street in the city of Athens, Georgia, which interest was then in litigation, her former guardian having theretofore instituted in the superior court of Clarke county a suit against her grandmother, Mrs. Joan Wise McGregor, since deceased, and Miss Jessie Mc-Gregor, to recover that interest.

3. Construing the holdings referred to above, in the first paragraph, to mean that, as against a stranger, the next of kin, if unobjectionable, is absolutely entitled to appointment, this does not mean that he or she, in order to forfeit such right, must be proved to be deficient in habits, temper, morality, sobriety, or sense. The evidence does not attack the plaintiff in error, the next of kin, in any of these respects. If, under all the proved facts and surrounding circumstances, the jury could have been authorized to believe that for airy reason her appointment might reasonably embarrass or jeopardize the property rights of the child, the next of kin could not claim the appointment as a matter of right under the statute. The facts and circumstances appearing in the record were such as do not permit this court to say, as a matter of law, that the appointment of the next of kin would have been unobjectionable; and, the court having plainly instructed the jury that the next of kin, if unobjectionable, would be entitled, the giving of the quoted section in charge would not justify setting aside the verdict and judgment in favor of the applicant.

Judgment affirmed.

Stephens and Bell, JJ., concur.

A caveat to this application was interposed by Mrs. Margaret C. Chalker, a resident of Miami, Florida, who was a half-sister of Mrs. Louise C. McGregor, the mother of the said minor, and who asked that she be appointed guardian of the person and property of the minor. The ordinary overruled the caveat, and appointed the applicant, George H. Thornton. Mrs. Chalker appealed to the superior court, and a jury on the trial of the appeal found in favor of the applicant. Mrs. Chalker’s motion for a new trial was overruled, and she excepted.

The evidence showed that the minor’s mother, Mrs. Louise C. McGregor, moved to New York City for employment, and while there, a few days before her death, wrote a letter to George H. Thornton, the applicant, in which she said: “Mr. Thornton, if anything should happen to me, look after Joan’s interest, which I know you will.” The applicant also put in evidence a letter of the minor to the ordinary of Clarke county, as follows: “I-wish Mr. George^ H. Thornton to be appointed my guardian. I am living with my relatives here and wish to continue to live with them, as I am happy and contented.” The evidence showed that she was the sole heir-at-law of her mother, and that Mrs. Chalker held a claim against certain property which had been owned by the mother. This was indicated by letters which Mrs. Chalker’s attorney had written to the mother. There was other evidence going to show, however, that the mother died without leaving any estate in which the ward might be concerned.

It further appeared that Mrs. Louise 0. McGregor, as guardian for the minor, had instituted a suit in the superior court of Clarke county, in which she alleged that the minor had a third undivided interest in the home place of her paternal grandfather, D. W. McGregor, deceased. The defendants in that case were her grandmother, Mrs. Joan Wise McGregor, and her aunt, Miss Jessie McGregor, who afterwards became Mrs. Eylee. The record of this last-mentioned case, which is in the present record, shows that the proceeding was an equitable suit for partition and accounting, and it was contended that the prosecution of such important litigation should not be entrusted to a nonresident of the State of Georgia. Mrs. Chalker admitted that the opposition to Mr. Thornton’s appointment as guardian was instigated by Miss Jessie McGregor, afterwards Mrs. Bylee. It appears that in contesting Thornton’s appointment Mrs. Chalker had advised with Mrs. Bylee, and that Mrs. Chalker had not herself paid the necessary court costs on the appeal, or any attorney’s fees in the case under consideration. It was shown that she did not appear in court in person, but testified by deposition. Four of the minor’s relatives, including Mrs. Bylee, recommended Mrs. Chalker for appointment as guardian.

A number of witnesses testified as to the high standing of Mr. Thornton and his fitness to be appointed guardian. The only objection urged against his appointment was that a large part of the minor’s estate was invested in stock of The McGregor Company, of which Mr. Thornton was a stockholder and director, and that Mr. Thornton and his associates had improperly increased their salaries and, during the period of business inflation, voted bonuses to themselves. There was no suggestion that this was not done by proper corporate action. It was also suggested that, if Mr. Thornton were appointed guardian, he would be in a position to vote the ward’s stock in matters that might be detrimental to her interest. It was further shown, however, that Mr. Thornton and his associates owned .and controlled a majority of the capital stock of The McGregor Company, and it was contended that the right to vote the minor’s stock could not in any manner affect the control and direction of the business.

West & West, for plaintiff in error.

Erwin, Erwin & Nix, contra.


text:
    14851.
    Lee v. Brandenburg.
   Jenkins, P. J.

This was a default judgment in trover, where the plaintiff elected to take judgment for the property, together with rent or hire. There was opinion testimony fot the plaintiff as to the rental value of the property, and the judge directed a verdict accordingly. This was error. Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (4) (62 S. E. 716); Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220). See also Hammock v. King, 146 Ga. 681 (92 S. E. 57); Graham v. Graham, 137 Ga. 668 (2) (74 S. E. 426); Baker v. Richmond City Mills Works, 105 Ga. 225 (31 S. E. 426). The judge therefore properly granted the motion for new trial. If the plaintiff in the court below, by the time the remittitur is made the judgment of that court, shall voluntarily write off from amount of the judgment the amount specifically awarded for rent, the judgment granting a new trial will be reversed; otherwise it will stand affirmed.

Decided March 13, 1924.

Trover; from Newton superior court—Judge Hutcheson. May 31, 1923.

A. D. Meador, for plaintiff. King & Johnson, for defendant.

Judgment reversed, on condition;

Stephens and Bell, JJ., concur.


text:
    14860.
    King v. Holt.
    Decided March 13, 1924.
    Action for deceit; from DeKalb superior court—Judge Hutcheson. June 6, 1923.

      Carl B. Copeland, G. N. Bynum, for plaintiff.

      Napier, Wright & Wood, for defendant.
   Jenkins, P. J.

In a vendee’s action for deceit on account of false and fraudulent representations of tne vendor, it is necessary to allege and prove that the statements made by the vendor were false and fraudulent, that he knew they were such, and that the plaintiff relied upon them in entering upon the contract of purchase and sale, and was damaged. Brooke v. Cole, 108 Ga. 251, 252 (33 S. E. 849); Waldon v. Stokes, 23 Ga. App. 428 (98 S. E. 367). In the instant ease the plaintiff failed to sustain her case as laid; and while the proper course would have been to grant the motion to award a nonsuit upon the close of the plaintiff’s case, yet -as the evidence introduced for the defendant did not cure the deficiency in the plaintiff’s testimony, the subsequent grant of a nonsuit will be sustained. Burkhalier v. Lamer, 29 Ga. App. 416 (115 18. E. 920).

Judgment affirmed.

Stephens a/nd Bell, JJ., concur.


author: Bell, J.

text:
    15039.
    Darley, for use, etc., v. Ehrlich & Co. et al.

   Bell, J.

1. The right to maintain the present trover action was not negatived by the allegation that we plaintiff was suing for the use of another. “His petition” having alleged that the property sued for was “the property of petitioner,” the reference to a usee was mere surplusage, to be ignored. See Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (2) (36 S. E. 971, 51 L. R. A. 622); Norcross Butter &c. Co. v. Summerour, 114 Ga. 156 (3) (39 S. E. 870); McEachern v. Edmondson, 122 Ga. 80 (49 S. E. 798); Louisville & Nashville R. Co. v. Ramsay, 137 Ga. 573 (2) (73 S. E. 847, Ann. Cas. 1913B, 108); Louisville & Nashville R. Co. v. Morse, 143 Ga. 110 (2) (84 S. E. 428); Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 Am. L. Rep. 124).

2. The averments as to past transactions, as contained in paragraph 2, unlike the fatal allegation in Herring Safe Co. v. Baker County, 77 Ga. 535 (3 S. E. 521), apparently were made for the purpose of identification and description, and, in view of the petition as a whole, did not, upon general demurrer or a motion to dismiss, snow affirmatively as a matter of law that the plaintiff did not have title, as alleged, at the time of the suit. Phelan v. Vestner, 125 Ga. 825 (54 S. E. 697).

Decided March 13, 1924.

Trover; from city court of Bainbridge—Judge Spooner. August 20, 1923.

Application for certiorari was denied by the Supreme Court. The petition was as follows: “C. L. Darley, suing for the use of First National Bank of PeJham, brings this his petition against W. H. Harrell and against IT. B. Ehrlich & Company, a partnership composed of H. B. Ehrlich and H. L. Gans, and respectfully shows:

“1. Defendants are each and all residents of the county of Decatur and within the jurisdiction of the city court of Bainbridge.

“2. Defendants are in possession of the following described personal property, to wit: Two (2) bales of upland cotton, ginned and packed and weighing approximatetly 500 lbs. each, being the same two (2) bales of cotton bargained by' C. L. Darley to W. H. Harrell on or about October 12, 1922, and for which the said W. H. Harrell gave his two (2) drafts on the Citizens Bank of Bainbridge, as follows: One for bale No. 262, for $95.80; one for bale No. 263, for $99.00.

“3. Said personal property is the property of petitioner.

“4. Said property is of the value of $250.00.

“5. Said defendants refuse to deliver said personalty to your petitioner or to pay him the profits tliereof.

“Wherefore, petitioner prays,” etc.

The court sustained an oral motion to dismiss the petition, and the plaintiff excepted.

H. II. Merry, Harrell & Gusler, for plaintiff.

J. G. Hale, for defendants.

3. The petition set forth a cause of action, and the court erred in sustaining the oral motion to dismiss it. Harrell v. Attaway, 18 Ga. App. 269 (1) (89 S. E. 347).

Judgment reversed.

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


text:
    15090.
    WOODALL v. GOSSETT & SON.
    The verdict being supported by evidence and approved by the trial judge, this court is without authority to interfere with it.
    Decided March 13, 1924.
    Affidavit of illegality of execution; from city court of Barnesville —Judge Eedding. August 23, 1923.

      O. J. Lester, for plaintiff in error.

      B. F. McKnight, contra.
   Bell, J.

The issue in this case arose upon an affidavit of illegality alleging payment of the execution to which it was interposed, and an overpayment by mistake, the defendant praying to recover the excess. After verdict found for the plaintiffs in fi. fa. a motion of the defendant in fi. fa. for a new trial was refused, and he excepted. The motion was based solely upon the usual general grounds. The attorney for the plaintiff in error declares in his brief that “the only contested point in the case was whether the $250 receipt shown in the record was given for and represented one and the same payment as the check shown in the record for same amount, dated September 27, 1918,—the receipt being dated September 21, 1918.” It appears in the evidence that the defendant in fi. fa. introduced a receipt from the plaintiffs in fi. fa., dated September 21, 1918, for $250, and also a paid check drawn in favor of the plaintiffs in fi. fa., purporting upon its face to have been dated September 27, 1918, for a like sum, and contended that the receipt and the check each represented a separate payment, but that the plaintiffs in fi. fa. had not credited the amount of the check. The plaintiffs in fi. fa. on the other hand, contended that the check had been altered since its payment, that before the alteration it bore even date with the receipt, that the receipt was given for the check, and thus that both these documents related to a single transaction wherein the plaintiffs in fi. fa. received only the sum of $250. Each party supported his contention by evidence. The issue as thus made was one of fact to be determined by the jury. They having solved the issue in favor of the plaintiffs in fi. fa., and the trial court having approved the verdict, this court is without authority to interfere, the verdict being sufficiently supported by the evidence.

Judgment affirmed.'

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


text:
    15099.
    BONITA THEATRE v. BRIDGES.
    1. One who is in the control of a building which he uses as a show house, to which the public are invited for his profit, and who assumes the construction of the plastering therein, is liable to an invitee injured by the falling of the plastering because of defects in its construction, of which he had knowledge or of which he ought to have known in the exercise of ordinary care.

      (а) “Where something unusual happens with respect to a defendant’s property, over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant’s negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant who had in charge the instrumentality which was the direct cause of the injury was guilty of negligence, may or may not be drawn by the jury; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact.” Sinkovitg v. Peters Land Oo., 5 Ga. App. 788 (2) (64 S. E. 93).
    (б) The court did not err in instructing the jury in accordance with the principles expressed above.
    (c) The jury were authorized to apply the maxim res ipsa loquitur in the instant case, and, from certain facts proved, to infer that the defendant was negligent as alleged. The defendant’s rebuttal did not demand a finding that it was exonerated. The evidence authorized the verdict.
    2. One of the excerpts from the charge of the court, complained of in the motion for a new trial, was in the language of the second headnote of the decision of this court in Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712), as follows: “The duty assumed by the owner of a place of amusement or recreation where the public are invited, for his profit and their pleasure, is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care required. In the latter, the standard is extraordinary care; and in the former, ordinary care.” While language which would be appropriate in a headnote or in an opinion by a reviewing court may be improper when embodied in a charge to a jury, and while the comparison contained in this portion of the judge’s charge in the instant case was irrelevant, the defendant was not prejudiced thereby. None of the assignments upon this or any other part of the judge’s charge required the grant of a new trial. The court did not err in overruling the motion upon all the grounds taken.
    Decided March 13, 1924.
    Action for damages; from Eulton superior court—Judge Bell. September 10, 1923.

      W. 0. Wilson, for plaintiff in error.

      Branch & Howard, contra.
   Bell, J.

J. W. Bridges brought an action for personal injuries against the Bonita Theatre, a corporation, and recovered a verdict for $1100. The defendant’s motion for a new trial was overruled, and it excepted.

The injury sued for was caused by the falling of the overhead plastering in the defendant’s theatre building, in which the plaintiff, as an invitee, was attending a show. The petition averred, that the “defendant was negligent, in that the said plastering was allowed to be on said overhead ceiling without being properly supported, in that there was nothing underneath said plastering to hold the same up, and the same was of an inferior quality of plastering material, being too brittle and not having the proper tensile strength, so that the keys thereto between the lathes would hold the weight of said plastering, and in that the said plastering did not have sufficient fiber or hair in the same to give it the proper tensile strength necessary to support the weight of the same overhead.” There was no direct evidence to sustain these averments, and it is urged by the plaintiff in error that the doctrine of res ipsa loquitur does not apply in this case; and that by reason of the failure of the plaintiff Otherwise to make proof or even attempt to make proof of any of the acts of negligence set forth in his petition, the verdict is unsupported by the evidencb, and that for this reason the motion for a new trial should have been sustained upon the general grounds.

The plaintiff testified that the piece of plastering that fell upon him was about four or six feet square. He could not say how deep it was, but it was a large piece. Mr. George Campbell, sworn for the defendant, testified: “I am the manager of the Bonita Theatre. I remember the occasion when the plastering fell at that theatre. . . I think that plastering had been on that ceiling between six and seven years, but I don’t remember how long. There was nothing on the plastering such as a watermark or a leak, to indicate that there was anything the matter with it; there was nothing to show up. I “don’t know what made it fall, but there was nothing to show up, because every morning—it is a public place and I looked at it myself. Yes, there was something the matter with it to make it fall, but there was nothing to show up, a mark or anything. The fellow that put up there is named George Goodrich, but he was killed last year in Jacksonville. I had ii put up there six or seven years before, when they remodeled the house. I examined the plastering after it fell. I think it was about three foot square. That was-a plastering with a sand finish, what they call a smooth sand finish, but I don’t know the name of it. Tire theatre is about seventy-five feet long and twenty-three feet wide. It is one solid ceiling up there with sand plastering. As to whether or not we have any strips or anything under the plastering—we have got it divided one or two, like this ceiling you see.”

“Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420. The owner of a building is responsible to others for damages arising from defective construction. Civil Code (1910), § 3694. While it was not shown, in the evidence, that the defendant was the owner of the building, the testimony of Mr. Campbell authorized the inference that the defendant was responsible for the construction of the plastering which fell. It therefore makes no difference whether the defendant knew when the plastering was being constructed that it was defective. It was its absolute duty to know. Defective construction is misfeasance; and where there is absolute misfeasance, the party guilty thereof is ipso facto chargeable with knowledge. Construction which is not strong enough to stand the strain of ordinary use is defective construction. Monahan v. National Realty Co., 4 Ga. App. 680 (1) (62 S. E. 127). The duty referred to is to be exercised, of course, under the rule of ordinary care.

The falling of plastering in a theatre building is an unusual occurrence, although it may occasionally happen. “Where something unusual happens with respect to a defendant’s property over which he has control, and by such extraordinary occurrence a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant’s negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant who had in charge the instrumentality which was the direct cause of the injury was guilty of negligence, may or may not be drawn by the jury; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to.draw is peculiarly an inference of fact.” Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (2) (64 S. E. 93). We have no hesitancy in holding that the jury were authorized to apply the rule of evidence referred to in this decision, and to find that the defendant was negligent in the particulars alleged in the petition. The testimony introduced by the defendant with regard to the construction of the plastering was not such as to require a finding that the defendant was exonerated. The verdict was supported by the evidence. This ruling will dispose of the general grounds of the motion for a new trial, and also of ground 1 of the amendment to the motion.

In ground 2 of the amendment to the motion for a new trial error is assigned upon a charge of the court which was a verbatim restatement of the first sentence quoted above from the decision of this court in the Sinkovilz case, supra. It is assigned that the use of the clause shown in parentheses, “the occurrence being such as does not happen if reasonable care has been used,” was in effect an expression of opinion by the court that the acts alleged would not have happened if reasonable care had been used. We do not think the expression was susceptible of this construction, but it was equal to this: “provided the occurrence be such as does not happen if reasonable care has been used,” and that the jury must have so understood it. It is urged further that the charge was error because it excluded from the jury any consideration of the fact that the plastering might have fallen from some latent defect or from some cause not chargeable as negligence against the defendant, and amounted to an instruction that the defendant was negligent. This assignment is without merit. As we have stated above, the fact that if the plastering was defective, the defect was latent and unknown would not necessarily absolve the defendant from liability; and there was no expression of opinion by the court as to what had been proved.

With an explanation of the meaning of the phrase “res ipsa loquitur,” the court instructed the jury further in the language of the second and third sentences which we have quoted above from the Sinkoviiz case. In ground 3 of the amendment to the motion for a new trial it is assigned: (a) “that this was a mere general charge' that there would be an inference of negligence from a given state of facts,” and (6) that it “was erroneous because it failed to instruct the jury in clear and unequivocal terms that negligence must be proved, and it is for them to consider whether the manner of the occurrence and the attendant circumstances are of such a character that they would in their judgment and discretion be authorized to draw an inference that the occurrence could not have taken place if due diligence had been exercised.” It is, of course, error for the court to charge “that a given state of facts either constitutes or affords prima' facie proof of negligence, where there is no statute declaring that this is true as a matter of law.” Augusta Railway Co. v. Weekly, 124 Ga. 384 (2) (52 S. E. 444). There was nothing in the charge here complained of which violated this well-known and oft-repeated rule. The second criticism upon the excerpt does not present any question for decision. A complete, accurate, and pertinent instruction is not within itself erroneous because it fails to embrace an instruction which would be appropriate in connection with the instruction given. Lucas v. State, 110 Ga. 756 (36 S. E. 87); Johnson v. State, 150 Ga. 67 (3 a) (102 S. E. 439); Shelton v. State, 150 Ga. 71 (2) (102 S. E. 355); Wilson v. State, 150 Ga. 285 (103 S. E. 682); Green v. State, 150 Ga. 121 (102 S. E. 813); Bowden v. State, 151 Ga. 336 (4), 339 (106 S. E. 575). The excerpt here complained of, not being in itself erroneous, was not rendered so because the court did not charge something else in the same connection.

Ground 5 alleged that a new trial should be granted “because the charge as a whole charged the jury in mere general terms as to the doctrine of res ipsa loquitur, and failed to instruct the jury in clear and unequivocal terms as to the law applicable thereto.” This assignment is too general. Smith v. State, 125 Ga. 300 (1) (54 S. E. 124); Spence v. Morrow, 128 Ga. 722 (1) (53 S. E. 356); McElwaney v. MacDiarmid, 131 Ga. 97 (6) (62 S. E. 20); Wall v. State, 153 Ga. 309, 323 (112 S. E. 142). It is shown in the brief of counsel for the plaintiff in error that the “law applicable thereto,—that is, to the doctrine of res ipsa loquitur,—which it is contended the court erroneously omitted to charge, is the same as set out in the assignment b upon the charge excepted to in ground 3, the same being a verbatim statement of a part of the decision of the Supreme Court in Palmer Bride Co. v. Chenall, 119 Ga. 837, 843 (47 S. E. 329). “Grounds of a motion for new trial should be complete within themselves.” Daniel v. Schwarzweiss, 144 Ga. 81 (1) (86 S. E. 239). Two imperfect grounds cannot be put together and considered as a single perfect ground, nor may an incomplete assignment be aided by brief. If ground 5 had been as complete as the assignment b in ground 3 or as the statement in the brief of counsel for the plaintiff in error, it is possible that the question would have been sufficiently presented as to whether the court erred in omitting to charge substantially in the language of the Supreme Court’s decision in the Ghendll case, to which reference has been made, but the question does not arise under the record.

These rulings on practice are not made for the purpose of shirking the decision of any question, but are in accordance with long and well-established usage, as appears in the reported eases. The rule requiring that assignments of error in a motion for a new trial should be specific is not enforced merely for the convenience of the court of review, but is to be complied with out of fairness to the court below, in order that the trial judge may intelligently correct alleged errors, if existing, when he passes upon the motion for a new trial. The opposite party also has an interest in having explicit information as to what questions are presented when the motion is heard in the trial court. In some cases it may be that if he is specifically enlightened as to the error which -the movant claims to have been committed, he may be willing to concede it and consent that the motion be sustained rather than to incur the delay incident to a review. But we do not think that the plaintiff in error has lost anything by the form of the assignments in the instant case. Even if we interpret and consider them in accordance with the contentions contained in the brief filed by its attorney, we find that the learned judge who sat in the case below instructed the jury in “clear and unequivocal terms” that “where the defendant denies any allegations contained in the plaintiff’s petition, or says that, for want of sufficient information, it can neither admit nor deny such allegations, the burden of proof is upon the plaintiff to establish such allegations by a legal preponderance of the evidence. The defendant denies liability, and denies that it was guilty of any negligence, and denies the right of the plaintiff to recover. . . The burden is upon the plaintiff to make out his case by a legal preponderance of the evidence.” Thus the jury were explicitly informed that “negligence must be proved,” and that the burden of proving it was one to be carried by the plaintiff. We do not think that the Supreme Court, in saying in the Chenctll case that in cases where the maxim res ipsa loquitur is applicable “the judge should instruct the jury in clear and unequivocal terms that negligence must be proved;” meant to declare that such instructions should be given with any particular emphasis. According to our understanding of the decision in that case, it was the purpose of the Supreme Court merely to make it clear that an application of the maxim under consideration cannot have the effect of raising a presumption that the defendant is negligent or of relieving the plaintiff of his accustomed burden of proof. The spirit of that decision was not violated by the charge in the instant case, either by commission or omission. The jury could not have failed to understand that it was exclusively for their determination whether the inference of negligence should be drawn from the occurrence in question. The maxim is merely a rule of evidence, and the party who relies upon it simply says that from proof of certain facts the jury would be authorized, but not required, to infer the existence of the negligence alleged, and that he has thus carried the burden of making a prima facie case. The courts of this State are committed to the proposition that in certain cases the application of the principle is proper. There is nothing unusual or radical in the decisions so holding. They only recognize the right of a party to prove his case by circumstantial as well as direct evidence. “Circumstantial evidence is that which only tends to establish the issue by proof of various facts, sustaining by their consistence the hypothesis claimed.” Civil Code (1910), § 5729. In nearly every case tried the jury are called upon to draw inferences from proved facts, and are to do so by the ordinary test of human experience. Civil Code (1910), § 5735. In this State the philosophy of the doctrine expressed in the maxim res ipsa loquitur is embraced in and its particular application authorized by the Civil Code, § 5743, wherein it is provided that “In arriving at a verdict, the jury from facts proved, and sometimes from the absence of counter-evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” See Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (1) (68 S. E. 244).

In ground 4 of the amendment to the motion for a new trial exception is taken to an instruction of the court as follows: “The duty assumed by the owner of a place of amusement or recreation where the public are invited for his profit and their pleasure is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care. In the latter the standard is extraordinary care; in the former, ordinary care. And in this case the duty upon the defendant is exercise of ordinary care, and I have defined to you what ordinary care means.” It is urged that this was erroneous for the following reasons: (a) “Because it was not applicable to the evidence in'this case, and was prejudicial to the defendant, in that it brought to the attention of the jury injuries occasioned by railroads, which injuries are numerous, sometimes severe, and occasioned by a multitude of causes other than those complained of in this case, and did not differentiate the facts in this case from the numerous causes of accidents which occur on a railroad.” (5) “Because the said charge is incorrect, in that it failed to explain to the jury that the burden of proof in cases of injuries to passengers is on the carrier, and that the presumption of negligence in such cases is against the carrier, and that this charge failed to draw the proper distinction as to the presumption in cases of carriers of passengers and in the present case.” (c) “Because it charges that the only difference between carriers of passengers and in the present ease is in the standard of care, in the case of carriers extraordinary care being the rule, and in the present case ordinary care. The jury were not charged in this excerpt of the charge, or in any other place in the charge, what extraordinary care was, and therefore a proper distinction was not drawn in the two cases, and such charge tended to and did mislead the jury.”

In regard to assignment a, we are inclined to the view that the comparison of the duty of one in the position of the defendant to that of a railroad company to its passengers was irrelevant. Although the excerpt is in the exact verbiage employed by this court in the second headnote of its decision in the case of Moone v. Smith, 6 Ga. App. 649 (2) (65 S. E. 712), language which would be proper in a headnote or in the opinion by a reviewing court may be improper when embodied in a charge to a jury, and the fact that the excerpt was taken verbatim from a decision of this court did not make the giving of it proper. The court in the Moone case was merely undertaking by analogy to make clear the legal principl-e upon which is founded the duty of the keeper of a place of amusement to-his invitees. The jury could not well have been enlightened by the reference to the duty of a public carrier. They were only concerned in knowing that the duty of the defendant to the plaintiff was that of ordinary care. Still it does not appear that the defendant was harmed by the excerpt. We cannot say that a jury would be inflamed, in any case, by a foreign reference to a case of personal injury by a carrier. This is not presumed. It is well settled that the mere fact that the trial judge interjects into his charge some statement inapplicable to the issues of the case does not always require a reversal. Where such an instruction has been given, the reviewing court looks to the whole record to see if the complaining .party in fact suffered prejudice. If so, a new trial will result; otherwise not. We do not think that the defendant could have been prejudiced in the instant case by the inapplicable reference to the duty owing by public carriers to their passengers.

With reference to assignment i, the court was not dealing with the subject of burden of proof, but simply with the defendant’s duty, and there was nothing in the charge which would warrant the supposition that it authorized an application of the rule, obtaining in cases of personal injuries by a carrier to a passenger, that upon proof of the injury the carrier is presumed to have been negligent, until the contrary is shown.

The court did not err as contended in the last assignment upon the excerpt here under consideration, in failing to distinguish betiveen the extraordinary care owing by the carrier to its passengers and ordinary care as due by the defendant to the plaintiff in the instant case. It was sufficient that the jury were informed that the duty resting upon the defendant was the exercise of ordinary care, which the court defined.

We find no cause for setting aside the judgment of the trial court in overruling the motion for a new trial, and the judgment is therefore affirmed.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    15057.
    Bonita Theatre v. Ewing.
    Decided March 13, 1924.
    Action for damages; from Fulton superior court—Judge Bell. August 13, 1923.

      Wharton 0. Wilson, for plaintiff in error.

      O. N. Bynum, contra.
   Stephens, J.

1. This case is controlled by the decision this day rendered by this court in Bonita Theatre v. Bridges, ante, 798.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    15104.
    Boswell v. Ivie.
    Decided March 13, 1924.
    Trover; from city court of Greensboro—Judge Fisher. September 14, 1923.

      Noel P. Parle, J. Q. Faust, for plaintiff.

      Anderson & Wood, Miles W. Lewis, for defendant.
   Bell, J.

The grantor in a security deed to land, while remaining in the peaceable possession thereof, has such interest and right of possession in the lumber sawn from the timber thereon as will defeat an action of trover for the lumber by the grantee in the security deed. So also as to the right and interest of one who has purchased the timber, or the lumber, from him. Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (1) (119 S. E. 223). This rule is not altered by the fact that the debt secured by the deed was past due when the timber was cut. Broxton v. Ennis, 96 Ga. 792 (1) (22 S. E. 945) “To recover in trover it is essential that the plaintiff show either title or right of possession: in some cases he must show both. In the latter class of cases, although the plaintiff may show that he has legal title, if it appears that he has by contract surrendered possession to another, who is rightfully entitled to retain possession, he cannot recover possession by mere proof of title.” Birmingham Fertilizer Co. v. Dozier, 13 Ga. App. 759, 762 (79 S. E. 927). Accordingly, the court did not err in awarding a nonsuit. This does not mean that the plaintiff was remediless, but that under the facts trover would not lie.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.