text:
    15014.
    PHILLIPS v. FIREMAN'S FUND INSURANCE CO.
    1. The court properly sustained tlie motion to nonsuit, as the right of action was barred by the terms of the insurance policy sued on.
    2. This court refuses to review and reverse the decision in the case of Maxwell v. Liverpool cGc. Insurance Go., 12 Ga. App. 127 (76 S. E. 1036), or to certify this case to the Supreme Court.
    Decided January 16, 1924.
    Action on fire-insurance policy; from Floyd superior court— Judge Wright. July 13, 1923.

      Maddox, Lipscomb & Maitlhews, for plaintiff.

      Smith, Hammond & Smith, Paul H. Doyal, for defendant.
   Bloodworth, J.

The insurance policy sued on contained the following stipulation: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve months next after the happening of the loss.” The property insured was- destroyed by fire on November 6, 1921. The suit was filed November 6, 1922. November 5, 1922, was Sunday. This court in Maxwell v. Liverpool & London & Globe Ins. Co., 12 Ga. App. 127 (3) (76 S. E. 1036), held: “Where the uncontroverted evidence shows that the property insured was consumed on the morning of the 24th of January, 1910, the twelve months limitation as to commencement of the action expired at midnight on the 23 d of January, 1911; and, under this stipulation of the contract, the suit on the policy, which was not commenced until January 24, 1911, was barred.” And in Brown v. Emerson Brick Co., 15 Ga. App. 332 (83 S. E. 160), it was held: “An action brought on December 29, 1913, for bodily injuries inflicted on the plaintiff on December 29, 1911, was barred by. the statute which requires that action for such injuries shall be brought 'within two years after the right of action accrues’ (Civil Code of 1910, §4497). The fact that the 28th day of December, 1913, was Sunday did not render applicable the code provision that 'when a number of days is prescribed for any privilege, or the discharge of any duty, . . if the last day shall fall on the Sabbath, another day shall be allowed in the computation’ (Civil Code, § 4, par. 8). This provision does not apply when a period of years is so prescribed.” See cases cited in that case (15 Ga. App. 333). Under the rulings in the foregoing cases the suit on the policy in this case was barred.

In the brief of counsel for the plaintiff in error we are asked to review and reverse the Maxwell case, supra, or to certify this case to the Supreme Court and give that court an opportunity to review and reverse the eases from that court cited in the Maxwell case, and upon which that decision is based. This request is denied. A somewhat similar request was made in the Maxwell case as to the cases from the Supreme Court cited in that case, and in reference to the request Chief Judge Hill said (12 Ga. App. 131, 76 S. E. 1038): “According to the decisions in these cases, an action brought [on a cause of action arising] on January 24, 1910, required to be brought within twelve months, would be barred on January 24, 1911; in other words, the twelve months would expire at midnight of January 23, 1911. Counsel for the plaintiffs in error seems to concede the correctness of this contention, and requests this court to overrule these decisions of the Supreme Court. Of course, it is not within the power of this court to overrule decisions of the Supreme Court, but it is for us to accept and follow them as binding precedents. If there were any conflict in the decisions of the Supreme Court on the question, we might be willing to certify the question to the Supreme Court, for the purpose of having this conflict eliminated and the true rule laid down, but we do not find such conflict.”

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    15022.
    CHANCE v. THE STATE.
    1. The fact that the judge twice interrupted the defendant while making his statement to the jury, and gave him the instructions of which complaint is made in special grounds 1 and 3 of the motion for a new trial, does not require a reversal of the judgment.
    2. Under all the facts and circumstances of this ease the court did not err in giving to the jury the excerpts from the charge of which complaint is made in special grounds 2 and 4 of the motion for a new trial.
    3. There is ample evidence to support the verdict.
    Decided January 16, 1924.
    Indictment for embezzlement; from Fulton superior court— Judge Humphries. August 4, 1923.
    JET. A. Allen, for plaintiff in error.

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

The first- special ground of the motion for a new trial alleges that the “defendant during his statement used the following language: ‘ Gentlemen, I have been tried once before on this very same charge, not in the courts of Fulton county, but by three hundred and forty something men of the city, in the masonic room.’ The trial court at this point interrupted the statement of the defendant by making the following statement to the defendant: “'You needn’t refer to anything that happened in the lodge. That is immaterial to the case. Yon must leave that out.’ Movant contends and alleges that this interruption by the trial court of defendant’s statement was contrary to the rule of law which allows each and every person who comes on trial under a criminal charge the privilege of making to the court and jury such statement in the case as he may deem proper in his defense.” We cannot agree with counsel for the plaintiff in error that this interruption by the court was reversible error. A case containing a point quite similar to the one now under consideration is that of Vincent v. State, 153 Ga. 278 (112 S. E. 120). In the opinion in that case Justice Hines said (p. 293) : “In the tenth ground of this amendment it is urged that the court erred in interrupting the defendant while making his statement, under the circumstances which will now be stated. After the defendant had stated, ‘"We tried this case once before, tried it last August. We had twelve men on the jury like we have this afternoon/ the court interrupted him and said, ‘Don’t go into what occurred last August; that is no part of this case.’ The defendant then whispered to the judge that he was going to state that the jury (on the previous trial) stood eleven to one for his acquittal. The court then stated that he could not make that statement. It is insisted that this ruling deprived the defendant of his right to make such statement as he deemed proper in his own defense, and that he had a right to do this without being restricted or governed by the rules controlling the admissibility of evidence. The prisoner has ‘the right to make to the court and jury such statement as he may deem proper in his defense.’ Penal Code, § 1036. The court may so far control his statement as to prevent long, rambling and irrelevant matter. Yet as to all matters connected with the ease he may make such statement as he thinks proper, and should not be restricted to stating such facts as would be admissible in evidence. Coxwell v. State, 66 Ga. 309 (5); Hackney v. State, 101 Ga. 512, 519 (28 S. E. 1007); Richardson v. State, 3 Ga. App. 313 (59 S. E. 916). While considerable latitude has been allowed the defendant in making his statement, he has never been allowed to state matters wholly irrelevant, or such as would be violative of every rule of evidence. Montross v. State, 72 Ga. 261 (4 a), 266 (53 Am. R. 840); Howard v. State, 73 Ga. 83 (2). The judge may interrupt the defendant when he makes irrelevant statements, and instruct him to confine his statement to the case. King v. State, 9 Ga. App. 609 (71 S. E. 943). While the presiding judge, in the exercise of a sound discretion, can require the accused to omit from his statement reference to entirely irrelevant matters, it is not contemplated by our law that he should be embarrassed and circumscribed by the rules which control the admissibility of evidence. Hackney v. State, supra; Tiget v. State, 110 Ga. 244 (34 S. E. 1023). How the jury stood on the former trial of this case was wholly irrelevant to the present trial. It could throw no light whatever on the issue being tried.”

In King v. State, 9 Ga. App. 609 (71 S. E. 943), this court held: “In the exercise of his statutory right, the accused is authorized to make any statement to the jury in his defense that he may deem necessary, and, so long as he confines himself to the transaction under investigation, this right cannot be restricted by the trial judge. This does not mean, however, that the accused can occupy the time of the court in making wholly irrelevant statements, entirely inapplicable to the case; and the judge, in his discretion, can interrupt him when he is doing so, and instruct him to confine his statement to the case. Coxwell v. State, 66 Ga. 309.” See Nero v. State, 126 Ga. 555 (55 S. E. 404). Under the rulings in the foregoing cases the court did not err in interrupting. the defendant and in instructing him that he “need not refer to anything that happened in the lodge. That is immaterial to the case. You must leave that out.” '

The 3d special ground of the motion for a new trial alleges that while the defendant was making his statement to the jury he referred to certain evidence of a witness for the State, which he characterized as a “contemptible falsehood.” This ground of the motion shows that “at this point the trial court interrupted the statement of the defendant with the following command: fDon’t use that word contemptible any more, just make your statement and state facts and leave out epithets.’” This is alleged to be error. We do not think that this interruption and statement by the court required the grant of a new trial, especially as the court ruled out nothing and allowed the accused to state, his version of what occurred between the witness and himself. The record shows that in his statement the accused characterized the evidence of the witness as “a falsehood,” and also as “a contemptible falsehood.”

The court did not err in giving to the jury the following charge: “The defendant in his statement made some reference to being a member of a fraternal order. The court instructs you that it is your duty as jurors, acting fairly and impartially between the State and the accused, not to be influenced in any manner whatsoever by that. Whatever may or may not have been done by any fraternal order, whether he is a member of a fraternal order or not, has nothing to do with the case, and the fact that he made reference to it in his statement should not influence you in any way whatsoever. You take this case as upright, intelligent, impartial jurors, acting fairly and impartially between the State and the accused, seeking the truth of this matter, and you let your verdict speak the truth as you find the truth to be.” See, in this connection, Atlantic & Birmingham Ry. Co. v. Bowen, 125 Ga. 460 (3) (54 S. E. 105); McTyier v. State, 91 Ga. 254 (6) (18 S. E. 140); Beck v. State, 76 Ga. 452 (5); Green v. Hines, 25 Ga. App. 206 (102 S. E. 899).

The court- did not err in instructing the jury as follows: “An officer or agent of a corporation cannot take money of a corporation entrusted to him, or in his possession by virtue of his official relation or agency, and use it temporarily for his private benefit and avoid criminal responsibility by calling it a loan. The law calls such a transaction a wrongful conversion, from which a fraudulent intent can be inferred, provided the jury believe that such fraudulent intent actually existed.” This charge is substantially in the language used by this court in the case of Mangham v. State, 11 Ga. App. 427 (1) (75 S. E. 512).

There is ample evidence to support the finding of the jury, which has the approval of the judge who tried the case, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    15034.
    Smith et al. v. Marion Harper Cotton Oil Co.
    Decided January 16, 1924.
    Action for breach of contract; from Cobb superior court—Judge Blair. September 8, 1923.
    The allegations of the plaintiff’s petition are set out in 28 Ga, App. 663.

      Morris, Hawkins & Wallace, for plaintiff in error.

      J. Z. Foster, Little, Powell, Smith & Goldstein, contra.
   Bloodwokth, J.

The court properly directed a verdict for the plaintiff, and no legal reason for a reversal of the judgment is shown in any of the grounds of the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.


author: Bloodworti-i, J.

text:
    15063.
    Brown v. The State.
    Decided January 16, 1924.
    Indictment for manufacture of liquor; from Spalding superior court—Judge Searcy. September 8, 1923.

      Byars, Futral &_ Wood, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Bloodworti-i, J.

1. In the brief of counsel for the plaintiff in error there is no general insistence on all the grounds of the motion for a new trial, and as the special grounds of the motion are not referred to in the brief, they will be treated as abandoned.

2. On the trial the evidence of the accomplice as to the guilt of the accused was direct and authorized his conviction. While the evidence of an accomplice must be corroborated, the extent of the corroboration is a question entirely for the jury. In this case there was some corrob- ' orating testimony, and this court will not say that the evidence did not authorize the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., coneur.


text:
    15064.
    Brown v. The State.
    Decided January 18, 1924.
    Indictment for possession of liquor; from Spalding superior .court—Judge Searcy. September 22, 1923.

      Byars, Futral & Wood, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case contained no special grounds, and there was some evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., coneur.


author: Broyles, 0. J.

text:
    15109.
    Lingo v. Phœnix Hermetic Company.
   Broyles, 0. J.

1. The court did not err in overruling the demurrer interposed to the original suit and the suit as amended. The demurrer, as clearly shown by its particular wording, was directed Solely against the original suit, and the amended suit was not subject to any ground of the demurrer, and the court properly so held. Nor was the allowance of the amendment error, since the procedure in the municipal court of Atlanta, in regard to pleadings, is the same as that of a justice’s court.

2. The admission in evidence of the original order signed by the defendant was not error for any reason assigned.

3. After considerable documentary and oral evidence had been introduced by the plaintiff, it was not error to overrule a motion by the defendant’s counsel to exclude “all the oral testimony and all the written testimony that was introduced by the plaintiff by any of its witnesses or any of its correspondence that tends to or takes from the original order signed, by the defendant and introduced by plaintiff as proof of his account, . . as being irrelevant and immaterial, and incompetent and not binding on this defendant.” The court, before overruling the motion, stated: “Well, I don’t understand yet what evidence you object to, unless you call my special attention to some .part of it;” and the counsel who made the motion replied: “I can’t go through and take it out.” Counsel should have called the court’s attention to the specific evidence that he desired ruled out, especially in view of the judge’s statement that he did not understand what evidence the motion included.

Decided January 16, 1924.

Certiorari; from Fulton superior court— Judge Bell. October 1, 1933.

Jaclcson & Moore, T. L. Lanford, for plaintiff in error.

Chalmers & Stewart, Candler, Thomson & Hirsch, contra.

4. Under the facts of the case the plaintiff was authorized to recover upon the contract entered into by the defendant and the agent of the plaintiff—the plaintiff being the undisclosed principal of the agent (Woodruff v. McGehee, 30 Ga. 158), and the evidence authorizing a finding that the defendant’s written order for the goods was accepted by the plaintiff. There was no stipulation in the order that the acceptance must be in writing, and, although the value of the goods ordered amounted to more than $50, the contract was not within the statute of frauds, the goods not being in esse at the time of the order, and being of a peculiar character especially ordered by the purchaser, and to be made by the vendor out of his material, and having no general market value. Cason v. Cheely, 6 Ga. 554 (2).

(а) Even if the contract had been within the statute of frauds, it appears that the contract was an entire one and called for tlio purchase of a number of articles, and that some of the articles were received, paid for, and accepted by the vendee. Such a partial performance would take the contract without the statute. 27 Corpus Juris, 249.

(б) Nor could the purchaser successfully defend the suit by showing that the goods were not delivered within the time contracted for, since he (the purchaser) accepted the delayed shipments without any protest, and made payments thereon. See, in this connection, Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 (102 S. E. 137). The purchaser, by his conduct, must be held to have waived his right to insist upon the delivery of the goods within the time specified by the contract.

(c) Under the facts.of the case the vendor’s acceptance of a check from the purchaser did not constitute an accord and satisfaction. Upon the face of the check was written: “balance due as per account rendered, $100.00.” Subsequently the purchaser sent the vendor another check, for $100, upon which was written, “in full settlement,” and this cheek was not accepted by the vendor but was returned by him to the vendee.

5. The trial judge, sitting without the intervention of a jury, did not err in rendering the judgment complained of, and the overruling of the certiorari by the judge of the superior court was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15112.
    Mitchell v. Whitley.
    Decided January 18, 1924.
    Complaint; from city court of LaGrange—Judge Duke Davis. October 1, 1923.

      Wyatt & Branan, for plaintiff in error. E. A. Jones, contra.
   Broyles, 0. J.

Counsel for the plaintiff in error having stated in his brief that he is insisting upon the special grounds only of the motion for a new trial, and none of those grounds, upon a careful consideration thereof, showing cause for a new trial, the judgment below is

Affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15116.
    TURNER v. CITIZENS BANK OF VALDOSTA.
    The judge did not abuse his discretion when he refused to set aside the verdict and reinstate the case.
    Decided January 18, 1924.
    Rehearinq denied February 25, 1924.
    Motion to set aside verdict; from city court of Yaldosta—F. S. Harrell, judge pro hac vice. September 28, 1923.

      B'. A. Hendriclcs, T. N. Hendriclcs, for plaintiff in error.

      0. L. Smith', E. K. Wilcox, contra.
   Bloodworth, J.

An action returnable to the July term, 1921, of the city court of Yaldosta was brought by the Citizens Bank of Yaldosta against Strickland & Turner,- a firm composed of A. J. Strickland and A. W. Turner. No defense was filed by Strickland. On July 9, 1921, Turner filed a plea. The case was continued until the July, 1923, term of court, during which and on July 16 a' verdict was rendered “against the defendants Strickland and Turner, A. J. Strickland, and A. W. Turner” for the amount of principal, interest, and attorney’s fees due on the' note. On July 20, 1923, while the July term of court was still in session, counsel for Turner made a motion to “set aside the verdict and reinstate the case,” alleging in part that “R. A. Hendricks, of counsel for the defendant, wrote the clerk of this court some three weeks ago for. a calendar, and received information that no calendar for the July term would be published and that the old calendar would be used. Upon receipt of this information, counsel for the defendant, R. A. Hendricks, not knowing of the publication of the April calendar, having never received one, when this information was before him turned to the last January, 1923, calendar and marked it July, and turned to Wednesday’s calendar on which this case appeared at the January term, 1923, and marked it July 18th. . . Eelying upon information that he had received from the clerk’s office and from others, that the January term, 1923, calendar would be used, he notified all his clients and witnesses to appear on Wednesday, July 18th. . . E. A. Hendricks had no reason or excuse for not attending the court, but would have attended the court except for this misleading information. He did not know that this case had been submitted to a jury and a verdict taken until about 9 o’clock Tuesday nigfit. Immediately upon this information and upon the following morning E. A. Hendricks appeared in open court and made orally in court substantially the same motion as dictated now. The defendant A. W. Turner was present in the court on Wednesday morning, the day that this counsel understood that his case was set for trial, and has been continuously in attendance upon the court in its open session ever since, and ready to try the case, and they are .now ready to try the case. The defendant states that he has a meritorious defense and will introduce in evidence the defense filed by him, and says that he will be able to sustain it by proof.”

Under the facts of this case as shown by the record, the judge did not abuse his discretion when he refused to set aside the verdict and reinstate the ease. See Seifert v. Holt, 82 Ga. 757 (3), 762 (9 S. E. 843); Moore v. Kelly & Jones Co., 109 Ga. 798 (2) (35 S. E. 168); Kellam v. Todd, 114 Ga. 981 (41 S. E. 39); Ohlen v. McCoy, 25 Ga. App. 528 (2) (103 S. E. 803); Shore v. Brown, 19 Ga. App. 476 (6) (91 S. E. 909); Tennessee Oil &c. Co. v. American Art Works, 10 Ga. App. 45 (2) (72 S. E. 517).

Judgment affirmed.

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


author: Broyles, O. J.

text:
    15118.
    Golightly v. Line.
   Broyles, O. J.

1. The motion to dismiss the bill of exceptions is without substantial merit, and is denied.

2. Under the particular facts of the case, the court did not err in overruling the defendant’s motion for a.continuance, or thereafter on a subsequent day (the day upon which the case had been specially and peremptorily set for trial) in taking up the case at two o’clock p. m., in the defendant’s absence (he being an attorney at law and having been granted a leave of absence for that day until one o’clock p. m. only), or, the plaintiff having introduced the note sued upon, in directing a verdict for the plaintiff and entering up judgment thereon.

Decided January 16, 1924.

Rehearing denied February 25, 1924.

Motion to set aside judgment; from Campbell superior court— Judge Hutcheson. September 1, 1923.

Application for certiorari was denied by the Supreme Court.

J. E. Longino, J. E. Golightly, for plaintiff in error.

Tilson & McKinney, Eal Lindsay, contra.

(a) After the verdict and judgment were rendered, the court, on motion of the plaintiff, struck the plea and answer of the defendant. Conceding (but not deciding) that the court erred in striking the plea and answer, the error was harmless, since it occurred after the case had been legally and finally disposed of by verdict and judgment.

3. The court did not err in overruling the defendant’s motion to set aside the verdict and judgment, which was made at the same term of the court. The motion was based upon the ground that the verdict and judgment were rendered during the defendant’s absence from court, as related above. The motion, however, failed to show that the defendant had a meritorious defense, or that it was likely that his presence in court would have caused a different verdict and judgment to be rendered. See, in this connection, Cavender v. Atkins, 2 Ga. App. 173, 174 (58 S. E. 332). Moreover, “a motion to vacate and set aside a verdict and judgment, made at the term of the court at which they were rendered, is addressed to the sound legal discretion of the court; and that discretion, unless manifestly abused, will not be controlled.” Montgomery v. Bowen, 20 Ga. App. 493 (93 S. E. 111), and cit.; Tate v. Little, 141 Ga. 799 (82 S. E. 129). In the instant case it does not appear that the judge abused his discretion in overruling the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., coneur.


text:
    15119.
    Golightly v. Moser.
    Decided January 16, 1924.
    Rehearing denied February 25, 1924.
    Application for certiorari was denied by the Supreme Court.
    Description of case and names of counsel the same as in the next preceding case.
   Broyles, O. J.

This case is controlled by the decision in Golightly v. Line, ante, 550.

Judgment affirmed.

Luke and Bloochoorth, JJ., coneur.


text:
    15120.
    Golightly v. Seig.
    Decided January 16, 1924.
    Rehearing denied February 25, 1924.
   Broyles, O. J.

This case is controlled by the decision in Golightly v. Lvne, ante, 550.

Judgment affirmed.

Licke and Bloodworth, JJ., concur.

Application for certiorari was denied by the Supreme Court.

Description of case and names of counsel the same as in the case cited above.


text:
    15123.
    THOMPSON et al. v. LAWRENCE.
    The grant of a nonsuit was error, there being some evidence upon which the jury might have based a finding against the defendant.
    The discretion of a judge of the superior court in sustaining a certiorari, where questions of fact are involved and the evidence is in conflict, will not be controlled, if it has not been manifestly abused.
    Decided January 16, 1924.
    Certiorari; from Pulton superior court—Judge Hutcheson presiding. September 28, 1923.

      Douglas & Douglas, W. 0. Henson, for plaintiffs in error.

      W. J. Davis Jr., C. H. Calhoun, W. S. Dillon, contra.
   Bloodworti-i, J.

“A nonsuit is a matter of strict law, and when a motion to nonsuit is made, there is no discretion on the part of the court, and if there be' any evidence whatever to sustain the action, it must go to the jury.” East & West Railroad Co. v. Sims, 80 Ga. 809 (2) (6 S. E. 596). “The evidence adduced in behalf of the plaintiff was sufficient to support legitimate deductions and inferences from which the jury might have been authorized to find in favor of the plaintiff, and the court therefore erred in awarding a nonsuit.” . Henry v. Ga. & Fla. Ry., 16 Ga. App. 12 (84 S. E. 482). “Nonsuit is a process of legal mechanics: the case is chopped Off. Only in a clear, gross case is this mechauical treatment proper. Where there is any doubt another method is to be used—a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.” Vickers v. Atlanta &c. R. Co., 64 Ga. 306, 308. “While, even under the plaintiffs evidence, the case was a close one, there was some evidence upon which the jury might have based a finding against the defendant, and it was error to grant a nonsuit.” Jackson v. Ga. Ry. & Electric Co., 120 Ga. 1009 (48 S. E. 420).

“A judge of the superior court, in passing on a certiorari, where questions of fact are involved and the evidence is conflicting, has a discretion to sustain the certiorari, similar to the discretion allowed him in granting a first now trial; and that discretion will not be controlled, unless it has been manifestly abused. Savannah Ry. v. Fennell, 100 Ga. 474; Buice v. Buice, 111 Ga. 887; Ferry v. Mattox, 118 Ga. 146.” Weathersby v. Jordan, 124 Ga. 68 (1) (52 S. E. 83). Under the facts of this case and the rulings in the foregoing cases, we cannot say that the judge of the superior court abused his discretion in sustaining the certiorari, which amounts to the granting of a first new trial.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    15124.
    Burdette et al. v. Coleman.
    Decided January 16, 1924.
   Broyles, C. J.

1. “It is the duty of processioners to respect the actual possession of a landowner held under a claim of right for more than seven years, and to mark the lines between adjacent landowners so as riot to interfere with such possession. Civil Code (1910), § 3822 [Camp v. Cochrane, 71 Ga. 865 (2)]. Nevertheless, wdiere the muniments of title of the adjacent landowners call for a line which is the land-lot line between two .lots of land, and such line as run by the processioners passes in part through lands adversely held for seven years by one of the parties, the entire proceeding is not per se void.” Stewart v. Jackson, 144 Ga. 501 (2) (87 S. E. 656).

(a) In such a case the party who has been in actual possession of the strip of land in controversy for more than seven years under a claim of right should prevail as to that part of the line, and the rest of the line should be the original land-lot line between the two lots of land. Stewart v. Jackson, supra (3).

2. Under the above-stated rulings and the facts of the instant case (the actual possession of the strip of land in controversy, by the protestant, under a claim of right, for more than seven years, being disputed by the adjacent landowner), the court erred in dismissing the ease on the ground that the processioners, in running the line between the lands of the parties, disregarded the question of possession by the protestant, and that the return of the processioners was therefore void. Under the facts of the case the court should have submitted to the jury the question as to whether the protestant had been in actual possession, under a claim of right, for more than seven years, of the strip of land in controversy. And the jury should have been instructed that if they resolved that issue in favor of the protestant, then he should prevail as to that part of the line, “and that as to the remainder of the line their verdict should be according to their finding whether the line run by the processioners or that claimed by the protestant was the true line.”

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Processioning; from Fayette superior court—Judge Searcy. September 18, 1923.

Culpepper & Murphy, for plaintiffs.

F. J. Reagan, J. F. Golightly, for defendant.


author: Bloodwoktii, J.

text:
    15125.
    Hatfield v. The State.
    Decided January 16, 1924.
    Indictment for possession of liquor; from Walker superior court —Judge Wriglit. October 6, 1923.
    Application for certiorari was denied by the Supreme Court.

      David F. Pope, O. N. Chambers, for plaintiff in error.

      F. S. Taylor, solicitor-general, J. F. Kelly, contra.
   Bloodwoktii, J.

1. The 4th ground of the motion for a new trial is based upon the refusal of the judge to continue the case, and alleges that counsel for plaintiff in error stated to the court that “We make the same motion for a continuance in this ease that we did in the other.” What the other case was or what motion was made to continue it does not appear. It is elementary that every ground of a motion for a new trial must be complete and understandable within itself. This ground is singularly violative of this principle, and presents nothing for the consideration of the court.

2. In the absence of a timely and appropriate written request, the court did not err in failing to charge the jury “in a full and complete manner that the presumption of innocence remains with the defendant throughout the trial and entitles him to an acquittal unless overcome by satisfactory proof.” The charge of the court on the subject of a reasonable doubt sufficiently informed the jury that the burden was on the State. Thomas v. State, 129 Ga. 419 (4) (59 S. E. 246); Finch v. State, 24 Ga. App. 339 (2) (100 S. E. 739). This disposes of the 5th ground of the motion.

3. As there is no special insistence on all the grounds of the motion for a new trial, and the general grounds are not referred to in the brief of the plaintiff in error, they will be treated as abandoned.

Judgment ajfvrmed.

Broyles, G. J., and Lulce, J., concur.


text:
    15126.
    WARE v. THE STATE.
    Conceding (but not deciding) that a coffin, after it has been placed in the grave and the grave refilled, becomes a part of the realty, the coffin, when removed from the grave, instantly becomes personalty and can be the subject-matter of larceny, provided it be of some value and is tlie property of some living person. In such a case the coffin is the property of the person who furnished it and who buried the deceased.
    Decided January 16, 1924.
    Indictment for larceny; from Fulton superior court—Judge W. E. Thomas presiding. September 29, 1923.

      Thomas B. Brown, for plaintiff in error.

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

The accused was convicted of simple larceny. The evidence, together with the legal inferences arising therefrom, authorized a finding that the accused was a negro undertaker, and that he was a dealer in second-hand coffins (coffins in which persons had been buried); that in the instant case he gave $10 to two grave-diggers in a negro cemetery to dig .out a grave in which a woman had been recently buried and to take therefrom the coffin or casket, the dead body being left in the grave; that the coffin, after it was removed from the grave, was carried from the cemetery by the accused, with the intent of selling it to some other person in the course of his business as an undertaker; that the coffin was the property of one Clement Perry, who furnished it and buried the deceased, and who was a living person and the husband of the deceased; that the coffin when placed in the grave had a value of $125, and that it was worth at least $10 when stolen by the accused.

Conceding (but not deciding) that the coffin, after it was placed in the grave and the grave refilled, became a part of the soil, the coffin, when removed from the grave, was detached from the realty and immediately became personalty, and could be the subject-matter of larceny. See, in this connection, Penal Code of 1910, § 167; Beall v. State, 68 Ga. 820 (2); Kennedy v. Smith, 23 Ga. App. 724 (1) (99 S. E. 318).

Under the common law it is a larceny to steal a coffin in which the remains of a human being are interred, and that rule is not changed by any statute of this State. In such a case the coffin is the property of the person who furnished it and had the deceased interred, and he does not abandon the property or part with the title to it when he has the remains interred. State v. Doepke, 68 Mo. 208.

Under the facts of the case there is no substantial merit in the contention of counsel for the accused that there is a material difference in the meaning of the words “casket” and “coffin,” and, therefore, that the allegations of the indictment which charged the larceny of a “casket” were, not supported by proof of the larceny of a “coffin.” IJpon the trial some of the witnesses referred to the subject-matter of the larceny as a “casket,” while others spoke of it as a “coffin.” It is true that a “casket” is not necessarily a “coffin,” but the dictionary gives “coffin” as one of the definitions of the word “casket,” and if the accused desired to know with certainty what particular kind of casket he was charged with stealing he should have interposed a timely and appropriate special demurrer to the indictment, and, not having done so, he will not be heard to assert, after the trial, that the allegations of the indictment were insufficient to put him on notice that he was charged with the larceny of a coffin.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    15127.
    MADDOX v. THE STATE.
    The evidence authorized a finding that the accused was guilty of larceny in taking and carrying away the buried coffin.
    Decided January 15, 1924.
    Indictment for larceny; from Fulton superior court—Judge W. E. Thomas presiding. September 29, 1923.

      Thomas B. Brown, for plaintiff in error.

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

Claude Maddox was indicted for the offense of simple larceny. .The specific charge was stealing a coffin, after the coffin, with a body therein, had been buried. The evidence authorized a finding by the jury that the defendant and two other persons unearthed the coffin, removed the dead body from it, and took and carried away the coffin with intent to steal the same. The defendant contends that his conviction of the unlawful taking and carrying away of the coffin with intent to steal the same was unauthorized by law, for the reason that the coffin, as he contends, was of no value, was owned by no one, and was not the subject-matter of larceny. We do not agree with this contention. The evidence shows that the coffin was purchased by the husband of the woman whose dead body was placed in it and buried. The evidence shows that in a very short time thereafter the coffin was unearthed by the defendant and two others, they being a part of the ones who assisted at the burial, and the evidence further shows, that, with a little cleaning up, no one save those who took the coffin up would have known it from a new one. The defendant’s conviction was demanded, and the court properly overruled the motion for a new trial. See Ware v. State, 31 Ga. App. 554.

Judgment affirmed.

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


text:
    15128.
    Jones v. The State.
    Decided January 16, 1924.
    Description of case and names of counsel the same as in Ware v. State, ante, 554.
   Bloodworth, J.

This is a companion case to that of Ware v. State, 31 Ga. App. 554, and that of Maddox v. State, 31 Ga. App. 556, and the rulings in those cases control this case.

Judgment affirmed.

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


text:
    15140.
    HILL v. THE STATE.
    A verdict approved by the trial judge will not be disturbed by this court because of alleged insufficiency of evidence, when supported by any evidence.
    Decided January 16, 1924.
    Indictment for sale of liquor; from Banks superior court—Judge Russell. October 13, 1923.

      J. B. G. Logan, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case contains no special grounds. The verdict has the approval of the trial judge, and we cannot say that there is no evidence to support it. Applications for new trial on the ground that the verdict is contrary to the evidence are addressed to a sound legal discretion to be exercised by the trial judge. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere, if there is any evidence which would justify the jury in reaching the conclusion set forth in the verdict. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for this court to endorse his judgment in cases of this character. Terrell v. State, 29 Ga. App. 285 (114 S. E. 909).

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    15143.
    Clements v. The State.
    Decided January 16, 1924.
    Accusation of carrying concealed weapon; from city court of LaGrange—-Judge Duke Davis. October 19, 1923.
    The defendant was arrested when driving a buggy at two o’clock in the morning, and the person who arrested him testified: “He appeared to be drunk. . . I got in the buggy and started to drive to town with him. The horse began to run, . . and while I was quieting the horse he drew his hand from his side or back and drew a pistol. He pointed the pistol at me and shot. . . Hntil he drew his hand from his side or back the pistol was concealed. . . At that time it was dark. . . I did not see the pistol until the defendant lifted it up as if he was trying to shoot me. There was room for the pistol on the seat beside him. It might have been there, but I did not see it there. I cannot say that it was concealed, but I did not see it. I do not know where it was drawn from, whether from his pocket or from the seat. It was not visible to me. He pulled it from his back or side.” The defendant, in his statement at the trial, said: “I had this pistol on the seat of the buggy, by my side. It was not concealed, and when I took it up I took it from the seat by my side. . . The pistol was not hidden.”

      J. R. Terrell Jr., for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Broyles, C. J.

Tlie defendant’s conviction of carrying a concealed weapon was not authorized by the evidence, and the court erred in overruling his motion for a new trial.

Judgment reversed.

-Luke and Blood/worlh, JJ., concur.


text:
    15153.
    McPherson v. The State.
    Decided January 16, 1924.
    Accusation of possessing and selling liquor; from city court of Macon—Judge Gunn. October 19, 1923.

      jEarly W. Butler, Olin J. Wimberly, for plaintiff in error.

      Roy W. Moore, solicitor, contra.
   Bloodworth, J.

The motion for a new trial in this ease contains the general grounds only. There is some evidence to support the verdict, which is approved by the judge who tried the case. “Whenever there is any evidence, however slight, to support a verdict which has been-approved by a trial judge this court is absolutely without authority to control the judgment of the trial court.” Owens v. State, 27 Ga. App. 322 (108 S. E. 208).

Judgment affirmed.

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


text:
    15154.
    Bullard v. The State.
    Decided January 16, 1924.
    Aceusatiou of pointing gun; from city court of Baxley—Judge Speer. October 15, 1923.

      J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Broyles, C. J.

1. Where the statement of the defendant in a criminal case is in direct conflict with the testimony of the State’s witnesses, and the statement, if true, demands his acquittal, it is reversible error for the court, even in the absence of a written request, to fail to instruct the jury that they may believe the statement in preference to the sworn testimony in the case. Rivers v. State, 8 Ga. App. 694 (70 S. E. 47), and citations.

(а) This ruling is not affected by the fact that the defendant’s statement may be corroborated by sworn testimony introduced in his behalf.

(б) In the instant case the charge given upon the subject of the defendant’s statement did not measure up to the charge given in Jones v. State, 65 Ga. 507 (3), where it was held that the charge, in effect, instructed the jury that they might believe the statement in preference to the sworn testimony. And the ruling in that case will not be extended.

(c) Under the above-stated rulings and the facts of the instant case, it was reversible error for the court to fail to instruct the jury that they might believe the defendant’s statement in preference to the sworn testimony.

2. The other special grounds of the motion for a new trial are without substantial merit.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    14773.
    WIGHT, administrator, v. MERCHANTS & PLANTERS BANK.
    If it was error to strike tlie amendment to the defendant’s plea, no harm resulted to him, the defense set up in the amendment being practically the same as that set up in the original answer.
    The court did not err in the exclusion of evidence or in directing a verdict for the plaintiff.
    Decided January 17, 1924.
    Adhered to on rehearing, February 25, 1924.
    Complaint; from city court of Cairo—Judge Rigsby. May 28, 1923. '

      8. P. Cain, for plaintiff in error.

      M. L. Ledford, Ira Carlisle, contra.
   Bloodworth, J.

1. By exceptions pendente lite the plaintiff in error complains that the court erred in striking an amendment to the original plea. Counsel for the plaintiff in error in his brief says: “The amendment merely stated the defendant’s defense in a different way,” and “it is respectfully submitted that the amendment set up practically the same defense as is set up in the defendant’s original answer.” These statements being true, if it was error to strike the amendment it worked no injury to the defendant.

2. The court did not err in its rulings upon the admissibility of evidence.

3. The court did not err in directing a verdict for the plaintiff. The defendant pleaded that when the note sued upon was executed it was agreed between the plaintiff bank and defendant that in the event Duncan cut the timber, the collections for the same should be made through the bank, “and from such collections plaintiff would pay the note sued on.” This was an affirmative defense, and the evidence fails to sustain it.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    14806.
    AUSTIN BROTHERS BRIDGE CO. et al. v. WHITMIRE.
    1. While the Georgia workmen’s compensation act is in derogation of the common law, yet, in view of its beneficent purpose and remedial character, it should be so liberally and broadly construed as to effect its general purpose in every instance in which its language is such as to render judicial interpretation necessary.

      2. The amounts of compensation allowed an injured employee coming within the terms of the workmen’s compensation act, the periods for which such compensation is allowed, and the conditions upon which it may be increased, diminished, or suspended altogether are determined by the provisions of sections 30, 31,, 32, and 33 of the act.

      (а) The “capacity” with which the law is concerned in such cases is “earning capacity.”
    (б) Incapacity for work resulting from such an injury is total, not only so long as the injured employee is unable to do any work of any character, but also while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity.
    (c) Such period of total incapacity may be followed by a period of partial incapacity, during which the injured employee is able both to procure and to perform work at some occupation suitable to his then-existing capacity, but less remunerative than the work in which he was engaged at the time of his injury. That situation constitutes partial incapacity.

      (d) Except as specifically provided in section 32 of the act, such partial incapacity terminates when the employee again becomes capable of earning the same wage he earned before his injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to him solely from his injury and which are not caused or aggravated by his new employment.
    (e) Eor the period of total disability, whether resulting from injuries specifically mentioned in section 32 or from injuries covered only by section 31, the employee is entitled to the compensation provided by section 30 of the act.
    (/) Eor the succeeding period of partial disability, if resulting solely from one or more of the injuries specifically mentioned in section 32, the compensation must be as prescribed by section 32, and not otherwise; but if such partial disability results solely from such injuries as are covered only by section 31, then the compensation must be as provided by section 31; if, however, such partial disability results in part from injuries described only in section 31 and in part from injuries specifically mentioned in section 32, then the aggregate compensation is that allowed by the act for both classes of injuries, the amount allowed for each injury being dependent upon the section of the act providing for it and the aggregate amount being kept within the maximum allowed by the statute.

      (ff) The refusal of an injured employee to accept employment suitable to his then-existing capacity upon its being procured for him, operates to suspend his compensation entirely during the continuance of such refusal, tmless in the opinion of the industrial commission such refusal was justified. It is also the duty of such employee-to endeavor to obtain such employment for himself; but, before such apparent capacity to work can operate either to suspend his compensation or to terminate his period of total incapacity, it must be made to appear that such employment has been procured for him and that he has unjustifiably refused to accept it.
    3. When the superior court, in reviewing the findings of the industrial eommission, recommits tile controversy to tlie commission for further hearing or proceedings, it is essential that the judgment be accompanied by an opinion directing the attention of the commission to the precise errors to be cured or the precise deficiencies to be supplied upon a reconsideration of the case by the commission.
    Decided January 17, 1924.
    Appeal; from Dougherty superior court—Judge Custer. June 12, 1923.
    This case arose under the Georgia workmen’s compensation act (Ga. L. 1920, p. 167). The injury in question having occurred on December 28, 1921, the case is not affected by the amendatory acts of 1922 and 1923. (Ga. L. 1922, p. 185; Ga. L. 1923, p. 92.)
    Both Austin Brothers Bridge Company, the employer, and W. D. Whitmire, the employee, had previously accepted the terms of the act. The Maryland Casualty Company was the insurance carrier. The accident occurred in work upon a bridge over Mint river, in Dougherty county, Whitmire falling a distance of fifty feet upon a pile of rocks only partially covered with water in the bed of the river, due to a collapse of the scaffold upon which he was working. His injuries consisted of a fracture of the skull, a fracture of one lower jawbone, a dislocation of his left shoulder, a Colle’s fracture of his left arm, a lacerated lower lip with perforation from chin to mouth, a lacerated nose, lacerations of the scalp over three inches in length, a lacerated and contused left hip, a lacerated left thigh, and a fracture at the base of his right thumb. It was more than two weeks before Whitmire regained consciousness; but immediately after the injury he was sent by his employer to a hospital, where proper nursing, as well as surgical and medical treatment, were furnished, at a total cost of $992, which was paid by the insurance carrier. He left the hospital on February 7, one month and ten days after his injury, with mental condition restored, all fiesh wounds apparently healed, and the wrist wound, which was the most stubborn of all, giving promise' of being healed within another month. At the time of his accident and for twelve months prior thereto Whitmire was earning $24 per week.
    At the hearing, which was before a single member of the industrial commission, on September 12, 1922, only three witnesses were examined—Dr. Barnett, the physician who treated the wounds and who was a witness for the insurer; Dr. Hilsman, a physician selected by the commission as impartial and disinterested; and the employee, Whitmire. The only issué between the parties was as to the effect of Whitmire’s wounds, touching his capacity or incapacity to work as a result of such wounds. The commissioner’s notice of his award, made September 27, 1922, briefly summarizes the testimony of the two physicians, but apparently ignores Whitmire’s testimony, although it is directly in point and material parts of it are uncontradicted. The commissioner then says: “The award is as follows: The insurance carrier will pay compensation at the rate of $12 per week from December 28th to April 7th. Beginning on April 7th,, they will pay compensation at the rate of $12 per week for twenty-five per cent, disability of the wrist. Total disability of the wrist would be payable for sixty weeks. Twenty-five per cent, of this would be -fifteen weeks. The insurance carrier will pay compensation beginning April 7th and continuing for fifteen weeks.” Being dissatisfied with the amount of that award, Whitmire appealed to the full commission. That body, upon a review of the case on December 22, 1922, held: “It has seemed to the commission, after a careful review of the evidence in this ease, that Commissioner Slate has given to W. D. Whitmire all the compensation allowed by law, and all that he could reasonably expect. Dnder the Georgia law, compensation cannot be awarded because of inability to continue the occupation engaged in when the accident occurred, but the claimant must be unable to do any work of any character. In cases of partial disability compensation is based on the ability to earn, whether in the former occupation or another. This claimant was badly injured. Every medical and hospital service was resorted to in the effort to place him again upon his feet. Ilis condition is now such that he can follow certain lines of occupation. If there should be a return of disability as a result of this accident, the award can be again reviewed or modified on* the ground of a change in condition. The findings of fact and conclusions of law, as shown in the award of Commissioner Slate, are herewith approved and affirmed, all the commissioners concurring, except Commissioner George M. Napier, who dissents with respect thereto.”
    On appeal to the superior court the following judgment was rendered: “This case being presented to the court upon briefs, it is ordered that the case be remanded to the commission for further consideration and adjudication, upon the grounds: (a) that the facts found by the industrial commission do not support the award; (6) that the order of the commission is contrary to law; and it is so ordered.” To this judgment the employer and the insurer excepted generally, and also upon the specific ground that “the order and judgment as rendered by said presiding judge is too uncertain and indefinite, in that it fails to point out wherein the decision of the industrial commission was erroneous, and fails to give specific direction to the commission in reference to its findings upon a reconsideration of the case.”
    The other facts of record, so far as material here, appear in the opinion.

      Pottle & Hofmayer, for plaintiff in error.
    ■ Pope & Bennet, contra.
   Luke, J.

(After stating the foregoing facts.)

From prior decisions of this court, and from the decisions of other jurisdictions having laws similar to the Georgia workmen’s compensation act, the rule seems to be well settled that, although such acts are in derogation of the common law, yet, in view of their beneficent purpose and remedial character, they are to be so liberally and broadly construed as to effect their general purpose in every instance in which the language is such as to render judicial interpretation necessary. Jones v. Georgia Casualty Co., 30 Ga. App. 207 (117 S. E. 467); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786); 28 R. C. L. 739, 755.

The amount of compensation to which this employee is entitled (which is the whole case in so far as its merits are concerned) turns mainly upon the question: What constitutes the periods of “total incapacity” and of “partial incapacity,” under the facts of this case and within the meaning of the Georgia workmen’s Compensation act? The statute itself does not expressly define either of these periods, except as to the partial incapacity resulting solely from the specific injuries scheduled in section 32 of 'the act. This case, however, involves some injuries which are not scheduled in section 32, the most serious of which is the injury to the employee’s head, as well as some which are scheduled in section 32, all of which together render him permanently unfit for.a resumption of his former employment, but not wholly incapacitated for every other kind of work. Such is the commission’s finding of fact, and is the only inference reasonably and fairly deducible from the evidence in point.

The answer to the foregoing question must be found in sections 30, 31, 33, and 33 of the workmen’s compensation act. In Jones v. Georgia Casualty Co., supra, this court construed sections 30, 31, and 33 of the act with respect to the amount of compensation payable where the periods of disability are determined. That decision does not, however, deal with the rules for determining either of such periods. But from that decision and the express provisions of the act, it appears that, with these periods of disability determined, the rules for determining the amount of compensation payable are, briefly stated, as follows: For the period of total disability, whether resulting from injuries specifically mentioned in section 33 or from those covered only by section 31, the employee is entitled to the compensation provided by section 30 of the act. For the succeeding period of partial disability, if resulting solely from one or more of the injuries specifically mentioned in section 33, the compensation shall be as provided by section 33; if resulting solely from such injuries as are covered only by section 31,. then thé compensation shall be as provided by section 31; but if resulting in part from injuries described only in section 31 and in part from injuries specifically mentioned in section 33, then compensation shall be allowed for both classes of injuries, the amount allowed for each injury being dependent upon the section of the act providing for it and the aggregate amount being kept within the maximum allowed by .the statute. 38 R. C. L. 819 et seq.

. In determining what constitutes the periods of total and partial disability respectively, it must be borne in mind that the “capacity” with which the law is concerned is “earning capacity.” This plainly appears from sections 31 and 33 of the act. As to the particular injuries mentioned in section 33, the amount of compensation is arbitrarily fixed by that section. But for the partial disability resulting from that class of injuries covered only by section 31 the employee is entitled to no compensation whatever if he is able to obtain different employment as remunerative as that in which he was engaged at the time of Ms injury, and is entitled only to a reduced compensation if he is able to procure any other employment suitable to his impaired capacity at any reasonable wage; and this is so regardless of such personal discomforts and losses of physical capacity as he may suffer as a result solely of such injuries. By section 33 of the act, it is expressly provided that “If an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the industrial commission such refusal was justified.”

From a consideration of sections 30, 31, 32, and 33 of the act together and in connection with their context, an injured employee’s different periods of disability may be stated as follows: The incapacity for work resulting from such an injury is total not only so long as the injured employee is unable to do any work of any character, but also while he remains unable,' as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity. Such period of total incapacity may be, and usually is, followed by a period of partial incapacity, during which the injured employee is able both to procure and to perform work at some occupation suitable to his then-existing capacity but less remunerative than the work in which he was engaged at the time of his injury. That situation determines the period of his partial incapacity. Except as specifically provided in section 32 of the act, such partial incapacity terminates when the employee again becomes capable of earning the same wage he earned before the injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to him solely from his injury and are not caused or aggravated by his new employment. Before an employer can claim a reduction of compensation under the provisions of section 33 it must appear that the injured employee has refused employment procured for him suitable to his then-existing capacity. See also 28 R. C. L. 819-820.

For these reasons, among others, section 45 of the act provides, in effect, that an award of compensation shall never become final until fully paid, and expressly provides that the industrial commission may at any time review any award, either on its own motion or at the instance of any party to the controversy, on the ground of change in condition.

What, then, is the amount of compensation to which Whitmire is entitled? According to the uncontradicted evidence his incapacity was total from the date of the accident, December 28, 1921, to the date of the hearing, September 12, 1922, there being no contention that emplojunent suitable to his impaired capacity had been procured for him, and he having testified, without contradiction, to his repeated efforts to engage in other work, and to being unable to continue at it because of the pain it produced in his wrist wound, and to his being still unable to find any employment that was suited to his impaired capacity. For that period he was therefore entitled to the compensation provided by section 30 of the workmen’s compensation act. Iiis prior earning capacity being $24 per week, the amount of compensation was properly fixed at $12 per week, but the period for which it was allowed by the commission was too short.

When that period of total incapacity will be (or has been) succeeded by partial incapacity remains to be shown upon a further investigation of the case, or a review of the award, by the industrial commission. At that time the compensation to which Whit-mire is entitled for partial incapacity, if any, may be fixed in accordance with this opinion.

Does the judgment of the lower court recommitting the controversy to the industrial commission, without direction or detailed opinion, sufficiently comply with the statute to withstand the assignment of error specially urged against it? By section 59 of the workmen’s compensation act it is provided that, upon a review of the findings of the industrial commission, the superior court may set the same aside upon any one or more of five grounds therein specifically stated, or may enter the proper judgment upon the findings, or, in the language of the statute, “the court may recommit the controversy to the commission for further hearing or proceedings in conformity with the opinion and judgment of the court” (italics ours). Certainly no opinion or direction is required as a part of a final judgment in such case, nor could it serve any greater purpose in connection with such a final judgment than with a final judgment in any other case for stated sums of money. But where, as in this case, the finding of the commission is set aside, upon the general statutory grounds, and, in addition thereto, the controversy is recommitted to the commission for further hearing or proceedings, it would seem from the very nature of the case, as well as from the express terms of the statute, that some form of direction is a practical, as well as a legal, necessity. No better illustration of the usefulness of this statutory provision is needed than that afforded by the facts of this case. The judgment of the superior court merely holds: “ (a) that the facts found by the industrial commission do not support the award,” and “(b) that the order of the commission is contrary to law,” and thereupon recommits the controversy for further consideration by the commission. In what particular essential or essentials do the facts fail to support the award? On what particular point or points did the commission misinterpret the law? The judgment recommitting the case to the commission affords no answer to either of these questions. Without an answer to these questions the commission may be, and likely would be, in no better position to correct its errors upon a second hearing than it was to avoid them upon the first. It is to meet this situation that the statute requires that a judgment recommitting such a controversy be accompanied by an opinion. Without an opinion specifically pointing out the errors of the commission, or an order directing the commission specifically what to do, a judgment of the superior court recommitting such a controversy is incomplete.

No other error appears in the judgment. Without deciding what the result of such an error might be in cases hereafter brought to this court, under the particular facts of this case, direction is given that the judgment of the lower court be so amended as to advise the commission of the particular errors to be corrected upon a reconsideration of the case by it; and the judgment will thereupon stand affirmed.

Judgment affirmed, with direction.

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


author:
Broyles, C. J.,
      Bloodworth, J.

text:
    15101.
    Riggs v. The State.

      Decided January 17, 1924.
    Accusation of possessing intoxicating liquor; from city court of Bainbridge—Judge Spooner. October 8, 1923.

      Brie M. Donalson, for plaintiff in error.
   Broyles, C. J.,

dissenting. Under the facts of the case I do not think the failure of the court to instruct the jury upon the law of alibi was error.

Bloodworth, J.

1. “Wlien alibi is the only defense set up by a defendant in a criminal case, and this defense is sustained by testimony, the jury should be properly instructed in the rules governing the consideration of the subject of alibi, even in the absence of a request, and although the defense of alibi is included in the general plea of 'Not guilty’. It is the duty of the court to instruct the jury, without request, in the law applicable to the substantial issues presented by the evidence.” Hobbs v. State, 8 Ga. App. 54 (3) (68 S. E. 515). See also Holland v. State, 17 Ga. App. 311 (86 S. E. 739). Under the rulings in the foregoing eases, the judge erred in overruling the motion for a new trial.

2. Those grounds of the motion for a new trial wliieli allege that the court erred in admitting evidence obtained by a search under an illegal warrant, are without merit. Pullen v. State, 30 Ga. App. 24 (116 S. E. 871), and cases cited in the opinion. See also Johnson v. State, 152 Ga. 271 (109 S. E. 662, 19 A. L. R. 641), and cases cited in the opinion.

3. As this case is to be tried again, and the questions raised by the other grounds of the amendment to the motion for a new trial are not likely to recur, it is unnecessary to pass upon them.

Judgment reversed.

Luke, J., concurs. Broyles, O. J., dissents.


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

text:
    15138.
    Coney v. The State.
    Decided January 17, 1924.
    Accusation of possessing liquor, etc.; from city court of Dublin —Judge Sturgis. October 15, 1923.

      W. A. Dampier, for plaintiff in error.

      William Brunson, solicitor, contra.
   Luke, J.

1. “The conviction depending wholly upon circumstantial evidence, it was reversible error for the court to fail to instruct the jury as to the law of circumstantial evidence, though not requested to charge thereon.” Butler v. State, 17 Ga. App. 769 (88 S. E. 593).

Judgment reversed.

Bloodworth, J., concurs. Broyles, O. J., dissents.

Broyles, C. J.,

dissenting. Under the ruling in Carter v. State, 21 Ga. App. 493 (1, 2) (94 S. E. 630), where one is tried for knowingly allowing apparatus for the distilling of intoxicating liquors to be located upon his premises, and the evidence shows that such apparatus was found upon his premises and that the premises were in the defendant’s actual possession, such evidence, by the express terms of the statute (Act 1917, Ex. Sess., p. 18), is prima facie evidence that the accused had knowledge of the fact that the apparatus was located upon his premises; and in such a case the failure of the court to charge upon the law of circumstantial evidence is not error.

In the case at bar, while the defendant was convicted under two counts (possessing liquor, and knowingly allowing apparatus for the distilling of intoxicating liquors to be located upon his premises), he was only given one sentence, which did not exceed the punishment that could have been legally imposed if he had been convicted only of the charge of allowing apparatus for the distilling of spirituous liquors to be located upon his premises. Therefore the accused was not hurt by the failure of the court to instruct the jury upon the law of circumstantial evidence. See, in this connection, Brannon v. State, 21 Ga. App. 328 (2), 330 (2) (94 S. E. 259).

I think the judgment below should be affirmed.


author: Bloodwoeth, J.

text:
    15028.
    Pulliam v. The State.
    Decided January 17, 1924.
    Rehearing denied March 1, 1924.
    Motion to amend sentence; from Campbell superior court— Judge Hutcheson. August 18, 1923.

      Harwell, Fairman & Barrett, for plaintiff in error.

      Glande G. Smith, solicitor-general, contra.
   Bloodwoeth, J.

The case of Pulliam v. Jenkins, 157 Ga. 18 (121 S. E. 679), was a habeas-corptis proceeding growing out of an attempt to enforce the sentence in this ease. The facts and issues in that case are practically the same as in this one. Under the principles announced in the rulings in that case, the court did not err in any of the rulings of which complaint is made in the bill of exceptions in this case, nor in “amending and modifying” the sentence.

Judgment affirmed.

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


author: Stephens, J.

text:
    14379.
    Collins v. Bank of Cobbtown.
    Decided February 8, 1924.
   Stephens, J.

The description of the property in the short homestead introduced by the defendant in fi. fa. in support of his claim that the property was exempt from levy under a pony homestead issued to him as a head of a family, being “one farm horse or mule, one one-horse cart, common tools of trade for self, farming tools,” is insufficient for the purpose of identification, and the trial judge did not err in directing a verdict for the plaintiff in fi. fa. and causing judgment to be entered up ordering the fi. fa. to proceed against the property levied on. Kendall v. Parker, 146 Ga. 260 (91 S. E. 31).

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.

Levy and claim; from Candler superior court—Judge Hardeman. February 7, 1923.

Kirkland & Kirkland, for plaintiff in error.

Anderson & Trapnell, contra.


text:
    14382.
    Parker v. Bell.
    Decided February 8, 1924.
    Certiorari; from Screven superior court—Judge Strange. November term, 1922.

      J. H. Howard, for plaintiff.

      H. L. Howard, for defendant.
   Stephens, J.

The judgment here excepted to being a judgment sustaining a certiorari to the judgment of a justice of the peace against the defendant, on the issue formed by an affidavit of illegality interposed by him to the levy of an execution upon a judgment of the justice in a suit against him upon a promissory note, the affidavit of illegality being based upon the ground that he had never been served ■with a summons and had never had his day in court, and this defense being supported by the evidence for the defendant, adduced upon the trial of the issue made by the affidavit of illegality, and it therefore appearing that the judgment of the magistrate thereon was not demanded as a matter of law, the judgment of the superior court, sustaining the certiorari and granting a new trial, will be affirmed.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


text:
    14397.
    Brinson v. Bainbridge State Bank.
   Stephens, J.

1. A conditional acceptance of an order or draft binds the acceptor to pay only upon the happening of the condition, and such condition is not waived by the acceptor and his liability is not made absolute even by his own act in preventing the happening of the condition. The payee, however, is not remediless against the acceptor. Newhall v. Clark, 3 Cush. 376 (50 Am. D. 741). See also Baker v. Dobbins, 87 Ga. 545 (13 S. E. 524).

2. A draft accepted by the acceptor upon the condition that he will pay it to the payee upon the completion of certain work which the drawer is performing upon the acceptor’s dwelling house binds the acceptor to pay only upon the completion of the work, and when the work has not in fact been completed there is no binding obligation upon the acceptor to pay the draft, although he may by his own act have wrongfully prevented the completion of the work.

3. In a suit by the payee against the acceptor on such a draft it was error for the court to charge that the plaintiff could recover the full amount of the draft if the act of the acceptor had prevented the completion of the work.

Decided February 8, 1924.

Complaint; from city court of Bainbridge—Judge Spooner. February 12, 1923.

Harts'field & Conger, for plaintiff in error.

John B. Wilson, contra.

4. Where the acceptor has wrongfully prevented the completion of the work and thus prevented the happening of the condition upon which he obligated himself to pay the draft, the payee has a right of action in damages against the acceptor for the injury resulting from the acceptor’s conduct. Newhall v. Clark, supra. The payee, however, may, if the facts warrant, be protected as an assignee of the right, title, and interest which the maker of the draft had against the acceptor under the contract referred to in the draft, and bring suit as such against the acceptor, the draft being evidence of the assignment; and the measure of damages accruing under the contract for a wrongful prevention of its completion by the acceptor would be the profits inuring under the contract to the maker. The present suit may be amended by appropriate allegations showing an assignment of the contract right by the maker to the payee as fixed by the draft. Such an amendment sets up no new cause of action, and is permissible in the present suit, since the plaintiff’s right to recover as set out in the amendment is predicated upon the draft construed as a contract of assignment.

5. This being a suit by the payee of the draft against the acceptor, and the court having committed error as above indicated, the verdict and judgment for the plaintiff in the full amount sued for must be set aside.

Judgment reversed.

Jenldns, P. J., concurs. Bell, J., disqualified.


text:
    14426.
    Williamson & Co. v. Dodd.
   Stephens, J.

1. A contract for a sale of cotton, which provides for immediate delivery, may be taken out of the statute of frauds by delivery of a part of the cotton contracted for, although such delivery be not made within the terms of the contract, where there is ¡¡, delivery some days later, made and accepted and paid for under the terms of the contract. Such departure from the terms of the contract, being by consent of both parties, constitutes a quasi new agreement, and such part execution will be treated as having been made under the terms of the contract, and therefore operate to take the contract without the statute of frauds. See Civil Code (1910), §4227.

2. Upon the same principle, as establishing a novation by departure, the time for delivery as to the remainder of the cotton not delivered and accepted was in this case, by the consent of parties, extended and fixed at a date in the future, where the seller, after having failed to make immediate delivery, instructed the purchaser to buy goods of the character contracted for in the open market and charge the seller with the difference between the contract price and the market value; and, where the purchaser in pursuance of such instructions actually bought the goods, the time of such purchase was thereby fixed as the date of delivery, and the purchaser could sue on the contract and recover of the seller the difference between the contract price and the price which the purchaser paid for the cotton in the open market.

Decided February 8, 1924.

Action for breach of contract; from city court of Cartersville— Judge Townsend. January 8, 1923.

C. N. Feaiherston, G. I. Carey, F. A. Hooper & Son, for plaintiffs.

3. Where the purchaser in such a case brought suit against the seller to recover for a breach of the contract, it was' error to sustain a general demurrer to the petition.

Judgment reversed.

Jenlsms, P. J., and Bell, J., concur.


text:
    14491.
    Cone v. Bodiford.
    Decided February 8, 1924.
    Certiorari; from Grady superior court—Judge Custer. March 9, 1923.

      Jeff. A. Pope, for plaintiff.

      M. L. Ledford, for defendant.
   Stephens, J.

Where, in a proceeding to recover the possession of personalty by a possessory warrant, a judgment thereon was rendered by the magistrate in favor of the plaintiff, and in a petition for certiorari, complaining of such judgment as being contrary to the evidence and without evidence to support it, the defendant excepted to the admission of certain evidence tending to prove title to the property in the • plaintiff, which evidence was relevant as tending to establish a right of possession in the plaintiff and was properly admitted, and it did not appear from the record that the judge of the superior court, in sustaining the certiorari and in rendering a final judgment thereon in favor of the defendant (the plaintiff in certiorari), ruled favorably to the defendant upon this ground, the discretion of the judge of the superior court in rendering a final judgment was not abused, since the evidence adduced upon the hearing was conflicting- and that introduced in behalf of the plaintiff (the defendant in error) did not preponderate in his favor. Civil Code (1910), § 5379; Bush v. Rawlins, 80 Ga. 583 (2) (5 S. E. 761), followed in Sheriff v. Thompson, 116 Ga. 436 (2) (42 S. E. 738); Susong v. McKenna, 121 Ga. 97 (48 S. E. 695).

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.


text:
    14502.
    Thompson v. Reynolds Auto Co.
    Decided February 8, 1924.
    Garnishment; from city court of Eastman—Judge Sturgis presiding. February 24, 1923.

      J. H. Roberts, D. D. Smith, for plaintiff in error.

      G. W. Atwill, contra.
   Stephens, J.

1. The defendant, having dissolved the garnishment and thereby become a party to the garnishment proceedings, could thereafter, upon the trial of the issue formed in such proceedings and before judgment, except to the affidavit and bond for garnishment. Leake v. Tyner, 112 Ga. 919 (38 S. E. 343).

2. The affidavit, as the basis for the issuance of the summons of garnishment, having been subscribed to before a commercial notary public, who under the law was not authorized to take such affidavits (Civil Code of 1910, § 622), was defective, and the garnishment proceedings were thereby rendered void ab initio; and the court erred in not dismissing the samó upon motion or demurrer duly made by the defendant.

Judgment reversed.

Jenkins, P. J., a/nd Bell, J., concur.


text:
    14512.
    Sears, Roebuck & Co. v. Kitchens.
   Stephens, J.

1. Where personal property, such as a piano, was delivered by the owner to one who was a prospective purchaser, upon an agreement between the parties that the prospective purchaser would have the right, after thirty days trial, to return the piano should he decide that it was unsatisfactory, but that should he, after thirty days trial, decide to' accept the piano, he would pay for it in certain payments stipulated in the agreement, an oifer by him to return the piano, upon the ground that he could not keep it, because he was expecting to be drafted into the army, was not an offer to return the piano upon the ground that it was unsatisfactory, as provided in the agreement. Where the owner refused to accept its return when offered upon such ground, not provided for in the contract, and where the prospective purchaser never offered to return the piano upon the ground that it was unsatisfactory, as was his right, a retention by him of the piano after thirty days amounted automatically to its acceptance under the contract, and he thereby became a purchaser of the property and liable, under the terms of the contract, for the purchase-money, and one who afterwards purchased the property from him in good faith, for value and without notice, either actual or constructive, of the contract of sale, acquired good title; and in a suit against him by the original owner to recover the property in trover, a verdict for the defendant, where the undisputed evidence showed the above facts, was properly directed.

2. Testimony of an agent of the plaintiff, to the effect that the legal and equitable title to the property was in the plaintiff, was properly excluded upon the ground that it contained conclusions of law.

Decided February 8, 1924.

Trover; from Glascock superior court—Judge Shurley. March 38, 1933.

J. 0. Newsome, for plaintiff.

M. L. Felts, for defendant.

3. Even excluding certain evidence for the defendant, the admission of which was excepted to in the second ground of the amendment to the motion for a new trial, the evidence demanded a finding for the defendant; and it is therefore unnecessary to pass upon the validity of this assignment.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    14541.
    Wynne v. Davis, director-general.
    Decided February 8, 1924.
    Certiorari; from Fulton superior court—Judge Bell. March 36, 1933.

      Napier, Wright & Wood, J. N. Johnson, for plaintiff in error.

      Kendrick L. Scott, contra.
   Stephens, J.

1. In a suit by the director-general of railroads to recover unpaid freight charges for freight delivered to the consignee, a set-off filed by the consignee, in which it was sought to recover of the director-general for damage to other shipments while in transit over various railroads, was properly stricken, since the time of filing was more than two years after the passage of the act of February 28, 1920, providing for suits against railroads for claims arising during Federal control but filed after the termination of Federal control, which suits are barred after two years from the passage of the act, and since the set-off sought to recover against the United States a sum in excess of the amount sued for. See, in this connection, The Siren v. United States, 7 Wall. 152 (19 L. ed. 129).

2. The court did not err in striking the plea and giving judgment for the plaintiff, and the judgment' of the superior court overruling the defendant’s certiorari was not error.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    14613.
    Bowen v. Mayo.
   Stephens, J.

1. Under the rulings in a former decision of this case (Mayo v. Bowen, 26 Ga. App. 539, 106 S. E. 596), the sale of the land was by the tract, and it was a question of fact for the jury as to whether or not, under the facts there existing, which are the same as those in the case under consideration, the grantor was guilty of a wilful deception or mistake amounting to actual fraud, which would authorize an apportionment of the purchase price.

Decided February 8, 1924.

Complaint; from Toombs superior court—Judge Hardeman. April 4, 1923.

Lankford <& Rogers, for plaintiff.

Williams & Corbill, for defendant.

2. This being a suit by the vendor against the vendee to recover the agreed purchase price, and the vendee having defended upon the ground that the price should be reduced in proportion to the discrepancy, the verdict finding for the defendant on this issue and in favor of the plaintiff for a reduced amount was authorized.

3. The admission in evidence of a plat solely for the purpose of showing the shape of the land was not error upon the ground that the plat indicated that the number of acres in the tract was considerably less than that called for in the deed, or upon the ground that such evidence was irrelevant.

4. The extent of the apportionment of the purchase price being determinable by the proportion which the quantity represented bears to the quantity received, it is immaterial that the amount of land actually received was more valuable in proportion than the adjoining land necessary to supply the deficiency, and such evidence was properly excluded.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


text:
    14627.
    Shapiro v. Bank of Graymont.
    Decided February 8, 1924.
    Affidavit of illegality of execution; from city court of Savannah —Judge Freeman. March 31, 1923.

      Mclniire, Walsh & Bernstein, for plaintiff in error.

      Baussy & Baussy, J. T. Wells Jr., contra.
   Stephens, J.

The grounds relied upon in the affidavit of illegality, filed by the surety upon a replevy bond given by the defendant in attachment, being exceptions to the regularity of the affidavit upon which the attachment issued, and therefore constituting defenses which the affiant could have made before judgment on the replevy bond, the affidavit of illegality was properly stricken. Waldrop v. Wolff, 114 Ga. 610 (7) (40 S. E. 830).

Judgment affirmed.

Jenlcins, P. J., and Bell, J., Concur.


text:
    14649.
    American Railway Express Co. v. Estroff.
   Stephens, J.

1. Contraéis limiting a carrier’s liability for goods lost in transit must be express, and knowingly and understandingly made between the parties. See, in this connection, American Railway Express Co. v. Daniel, 29 Ga. App, 780; Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. (N. S.) 257). Where a carrier seeks to limit its common-law liability for loss or damage to goods in transit, it must do so by an express agreement made at the time of the receipt of the goods from the shipper. Where goods are received for shipment by a carrier and no receipt or bill of lading is at the time delivered to the shipper, but the goods are received for shipment without any express agreement between the-carrier and the shipper, and the carrier voluntarily accepts the goods for shipment, it undertakes to transport them under its common-law liability.

2. A delivery afterwards by the carrier to the shipper of a written receipt or bill of lading purporting to have been issued as of the date of the shipment, and containing stipulations limiting the carrier’s common-law liability, and a retention of the receipt or bill of lading by the shipper, will not, in the absence of an express agreement by the shipper assenting to its terms, or an agreement implied from a previous course of conduct between the parties, render the stipulations binding on the shipper as being a part of the contract between the parties. This is time even though such receipt or bill of lading was delivered to the shipper at the latter’s request, since it cannot be assumed that the shipper, in requesting of the carrier a written receipt evidencing the contract between the parties, thereby consented to a waiver of the shipper’s rights under the implied agreement which arose between the parties at the time of the carrier’s acceptance of the goods for shipment. See, in this connection, 1 Hutchinson on Carriers, § 416.

3. In a suit by the shipper to recover of the carrier damages for the loss of goods shipped while in transit, where the carrier based its defense upon an alleged special contract in writing, limiting its liability, and where it appeared that the contract offered in evidence by the carrier . in support of its plea failed, under an application of the above rulings, to constitute a valid agreement, the trial judge did not err in excluding this defense.

4. Admission of evidence of the plaintiff to the effect that he had visited the office of the defendant at the place of destination and there conferred with the employees of the defendant, who informed him that there were no records of the office showing a delivery to the consignee of the goods shipped, even if the court erred therein for the reason that it did not appear that it was the duty or custom of the defendant to keep such records, was harmless to the defendant, since the defendant admitted that the goods shipped were lost in transit and not delivered to the consignee.

5. This being a suit in trover for an alleged conversion of the shipment by the defendant, and it appearing from the evidence that the goods, after having been delivered to the defendant for the purpose of transportation and delivery to a consignee, were neither delivered to the consignee nor returned to the consignor, the verdict for the plaintiff, in an amount equal to the true value of the goods as proyed by the evidence, was authorized.

Decided February 8, 1924.

Rehearing denied March 1, 1924.

Trover; from Toombs superior court—Judge Hardeman. April 25, 1923.

Certiorari was granted by the Supreme Court.

Robert G. Alston, Lankford & Rogers, for plaintiff in error.

Enoch J. Giles, contra.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    14652.
    Varner v. Watkins.
    Decided February 8, 1924.
    Action for damages; from Floyd superior court—Judge Wright. April 12, 1923.

      M. B. Eubanks, for plaintiff. Porter & Mebane, for defendant.
   Stephens, J.

This being a suit by the vendee of personalty against the vendor, for a malicious prosecution, in which the petition alleges that the attorneys at law employed by the defendant to “force this petitioner to pay to [the defendant] $100.00” (which was an alleged balance due for the purchase-money which the plaintiff contends had been paid) caused another person, to whom the plaintiff had sold the personalty, to institute a criminal prosecution against the plaintiff, based upon the transaction of sale by the plaintiff to such other person, and it not appearing anywhere from the petition that the person instituting the criminal proceeding acted at the instigation of the defendant, or otherwise as his agent, and it not appearing that the attorneys for the defendant, in causing such person to institute the criminal prosecution, had any authority whatsoever from the defendant to force the collection of the alleged indebtedness by instigating a criminal prosecution, the petition set out no cause of action against the defendant and was properly dismissed on demurrer.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    14731
    Atlantic Paper & Pulp Corporation v. Pritchard.
   Stephens, J.

1. Where an amendment to a petition is allowed and ordered filed “subject to demurrer or objection,” a judgment on the demurrer, dismissing the amendment upon the ground that it sets out a new cause of action, is to all intents and purposes equivalent to rejecting or disallowing the amendment when offered, and where the merits of the amendment are not otherwise passed upon, the order striking the amendment constitutes no adjudication upon the merits of the allegations set out in the amendment.

2. A dismissal of the petition on demurrer after the striking of the amendment cannot be pleaded as res judicata to a suit afterwards brought upon the cause of action set out in the amendment. Assuming that the cause* of action set out in the amendment is in fact the same cause of action set out in the original petition, the former judgment cannot be pleaded as res judicata in the second suit, because the matter in the second suit was adjudicated in the former suit to be a separate and distinct cause of action. Butler v. Tifton &c. Ry. Co., 121 Ga. 817 (6, 7) (49 S. E. 763).

3. -Where the plaintiff alleged that it was agreed that he should haul a designated amount of cord-wood to a certain -wharf, and there load the wood upon lighters to be furnished by the defendant, for which service the defendant agreed to pay him a certain sum per cord; that pursuant to the contract he delivered to the defendant a designated amount of the wood upon lighters, for which service he received compensation, but that the defendant thereafter breached the contract by refusing to accept and pay for his services in hauling and loading the remainder of the wood, which services he offered to perform and stood ready and willing to perform, and' where the defendant in its plea denied the existence of the alleged contract, but alleged that if any contract existed it was conditioned upon the defendant being able to furnish the lighters for removing the wood, and where the evidence authorized an inference that the defendant was unable to furnish lighters for hauling the remainder of the wood, by reason of having no lighters and by reason of the defendant’s inability to engage any person to furnish lighters for such purpose, an instruction by the trial judge that a promisor is not discharged from performing his obligations under a contract because of impossibility of performance, unless by the act of God, was not prejudicial to the defendant, when the judge elsewhere instructed the jury that the defendant would not be liable to the plaintiff if there was no contract as alleged, or that, if the defendant’s liability under the contract was conditional upon the defendant’s being able to furnish satisfactory lighterage for hauling, such inability to furnish lighterage would excuse the defendant from performance.

4. The charge is nowhere subject to the exception that it excluded from the jury a consideration of the defense relied upon by the defendant.

5. The evidence authorized the inference that- the parties, by consent, deviated from the provisions of the contract and agreed upon a landing-other than the one designated in the contract as the landing at which the delivery of the wood was to be made, and the defendant’s contention that the evidence does not authorize a recovery, by reason of its failure to show an offer to perform by the plaintiff by a delivery at the landing mentioned in the contract, is without merit,

6. The evidence authorized a finding that the parties entered into a contract as alleged by the plaintiff, and that the contract had been breached by the defendant, to the plaintiff’s damage in the amount found by the jury.

Decided February 8, 1924.

Action for breach of contract; from city court of Savannah— Judge Freeman. May 8, 1923.

Hitch, Denmark & Lovebb, for plaintiff in error.

Qonnerab & Iiunber, contra.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonewr.


text:
    14757.
    Palmer v. Bankers Trust Company.
    Decided February 8, 1924.
    Complaint; from city court of Waynesboro—Judge W. EL Davis. May 18, 1923.

      E. V. Heath, for plaintiff in error. F. 8. Burney, contra.
   Stephens, J.

1. A transferee in possession of a promissory note properly transferred to him by the payee is presumably the owner and holder of the legal title thereof.

2. In a suit by the transferee against the maker, where the genuineness of the indorsement is not denied by the defendant, the note is properly admitted in evidence without proof of the execution of the indorsement.

3. Where -in such a suit the defendant admitted the execution of the note, and there was no evidence.in support of any legal defense, a verdict for the plaintiff was properly directed.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    14298.
    Turner v. Coggins.
   Stephens, J.

1. The defense that one is a bona fide purchaser for value without notice should be specially pleaded. Carter v. Pinckard, 68 Ga. 817; Donalson v. Thomason, 137 Ga. 849 (6) (74 S. E. 762). Where in a trover suit the defendant files only a general denial, denying possession and conversion of the property, and where no issue as to the bona fides of his purchase is raised by the evidence, the plaintiff is not defeated in a recovery because it appears that a contract between the plaintiff and the alleged vendor of the defendant, retaining title in the plaintiff, was not recorded before the original purchaser, the alleged vendor of the defendant, parted with possession of the property.

2. In the absence of any request the court did not err in refusing to charge the law relative to the impeachment of witnesses.

3. Where the holder of the legal title under a retention-of-title contract sues a stranger to the contract in trover for an alleged conversion of the property by having obtained possession of it from the original purchaser -under the contract, it is not necessary for the plaintiff to show any rescission and cancellation of the contract or its surrender by the plaintiff.

Decided February 8, 1924.

Trover; from Cherokee superior court—Judge Blair. January-12, 1923.

Brooke & Henderson, for plaintiff in error.

Wood & Vandiviere, contra.

4. This being a suit in trover to recover of the defendant the value of a certain mule alleged to have been the property of the plaintiff, where in support of the plaintiff’s petition there is evidence to the effect that the mule was sold by the plaintiff under a retention-of-title contract on October 16, 1919, to a person who upon the same day resold it to the defendant, and a verdict having been rendered for the plaintiff, newly discovered evidence offered as a ground for a new trial by the defendant to the effect that the person to whom the plaintiff sold the mule was sometime in October, 1919, and also “sometime in the fall of the year two or three years ago this last fall” seen with “a black mare mule which appeared to weigh about 1000 or 1100 pounds,” which was so far as it went a description of the mule in controversy, which was a “black mare mule 5 years old about 15% hands high, weight about 1000 pounds,” was insufficient to authorize the grant of a new trial, since it was entirely impeaching in its nature and was not sufficiently definite as to time, or as to the identity or description of the property in controversy, to be conclusive or likely to produce a different result.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.