author: Bloodworth:, J.

text:
    17958.
    BOWEN v. THE STATE.
    The court erred in allowing a third person to testify to statements made by the defendant’s wife in his presence when she was a witness on the stand during a former investigation by a judicial officer, though they were not at that time denied by the defendant.
    A conviction of possessing intoxicating liquor was not authorized by the evidence after elimination of testimony illegally admitted.
    Criminal Law, 16 C. J. p. 579, n. 1; p. 634, n. 95; p. 641, n. 30.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided April 12, 1927.
    Possessing intoxicating liquor; from Whitfield superior court-judge Tarver. January 22, 1927.

      S. B. Brooke, Maddox & Maddox, for plaintiff in error.

      C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.
   Bloodworth:, J.

1. Notwithstanding the statutory inhibition against the giving of testimony by a wife against her husband in a criminal case, except “for any criminal offense committed or attempted to be committed upon her person” (Penal Code of 1910, § 1037 (4) ), yet where a wife makes statements in the presence of her husband and a third person which would implicate her husband in the violation of a criminal statute, and the husband makes no denial thereof, the third person may testify as to these statements. Penal Code (1910), § 1029; Joiner v. State, 119 Ga. 315 (46 S. E. 412). Such statements of the wife are admissible only when they are a part of the res gestae, or where “the circumstances require an answer or denial” on the part of the husband. The statements of the wife which it was sought to introduce as evidence in this case were not.res gestee statements, but were made after the alleged illegal act and while the witness was upon the stand during an investigation by a judicial officer, and at a time when “silence, if not required, was at least justified as a matter of decorum.” Bell v. State, 93 Ga. 557, 559 (19 S. E. 244) . See, in this connection, Graham v. State, 118 Ga. 807, 808 (45 S. E. 616); Johnson v. State, 151 Ga. 21, 26 (105 S. E. 603). Under the facts of this case the judge erred in allowing a third person to testify.to statements alleged to have been made by the wife of the accused.

2. The evidence shows that whisky was found in a barn that was “just a short” distance from the dwelling house of the accused; that in this barn the accused kept some “stock”; that others also used the barn; that through the barn runs a hallway that connects with a lane, and that “a good many people travel through that way.” After eliminating the evidence of his wife, which was illegally admitted, the only evidence connecting the accused with the possession of the liquor was entirely circumstantial, and, because of the facts just stated, did not exclude every reasonable hypothesis except that of the guilt of the defendant. Cummings v. State, 25 Ga. App. 427 (103 S. E. 687); Kennedy v. State, 23 Ga. App. 141 (97 S. E. 894); Robinson v. State, 30 Ga. App. 280 (117 S. E. 769); Hampton v. State, 34 Ga. App. 699 (131 S. E. 688); Wilson v. State, 32 Ga. App. 427 (123 S. E. 623), and cit.

3. As a new trial results from the foregoing rulings, it is unnecessary to consider the other allegations of error, since they are not likely to recur upon another trial of the case.

Judgment reversed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    17959.
    Britt v. The State.
    Decided April 12, 1927.
    Selling intoxicating liquor; from Cook superior court — Judge Knight. January 14, 1927.

      Jeff'. S. Story, W. B. Buie, for plaintiff in error.
    Criminal Law, 16 C. J. p. 1108, n. 36; p. 1177, n. 30.
   Broyles, C. J.

The indictment contained two counts, the first count charging that the accused sold intoxicating liquors on the eighth day of August, 1926, and the second count that on the same day he controlled and possessed intoxicating liquors; and the same evidence was relied on to convict under both counts. The verdict found the accused guilty on the first count and not guilty on the second count, ffeld: The verdict was void for repugnancy, and the court erred in refusing to grant a new trial. Kuck v. State, 149 Ga. 191 (99 S. E. 622).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bi.oodwoetii, J.

text:
    17963.
    Hayes v. The State.
    Criminal Law, 16 C. J. p. 589, n. 13, 14, 18; p. 590, n. 19, 25; p. 591, n. 33; p. 605, n. 27; p. 860, n. 21; p. 861, n. 25; p. 875, n. 19; p. 877, n, 28; p. 1056, n. 20; p. 1057, n. 26; p. 1058, n. 32; p. 1059, n. 42; p. 1149, n. 91, 92; p. 1180, n. 74; 17 C. J. p. 58, n. 17; p. 177, n. 88.
    Intoxicating Liquors, 33 C. J. p. 760, n. 28, 29, 31; p. 761, n. 53; p. 764, n. 91 New.
   Bi.oodwoetii, J.

1. (a) “In misdemeanor cases it is the constant practice to submit to the jury evidence of several misdemeanors of the same character, perpetrated by the same person.” Bryant v. State, 97 Ga. 103 (25 S. E. 450).

(b) “In a prosecution for possessing intoxicating liquor it is not error to admit evidence that on other occasions, both before and after the date of the offense charged in the accusation, such liquor was found in the possession of the accused. See Jones v. State, 32 Ga. App. 7 (122 S. E. 738), and cit. This is true even though the evidence shows that liquor was found in the possession of the defendant on the day of the trial." (Italics ours.) Martin v. State, 35 Ga. App. 575 (2 b) (134 S. E. 185). See also Cook v. State, 33 Ga. App. 571 (127 S. E. 156).

(c) “On the trial of one charged with illegally selling whisky it is not error to admit evidence to show that the house of the accused was searched by officers subsequently to the day on which the alleged sale was made, and that bottles of whisky were found therein.” Cole v. State, 120 Ga. 485 (48 S. E. 156).

(d) “Where knowledge, motive, intent, good or bad faith, and other matters dependent upon a person’s state of mind, are involved as a material element in a particular criminal offense for which a defendant is on trial, and the defendant has engaged in a course of conduct or done other acts at or about the same time the act in question was committed, and these other transactions are such as to illustrate the state of the defendant’s mind on the subject involved, proof of them may be received.” Lee v. State, 8 Ga. App. 413 (3) (69 S. E. 310).

Decided April 12, 1927.

Possessing liquor; from Ben Hill superior, court — Judge Crum. January 12, 1927.

C. W. Bussell, D. E. Griffin, for plaintiff in error.

T. Hoyt Davis, solicitor-general, contra.

(e) “An objection to evidence that it is ‘immaterial, inadmissible, and prejudicial ’ is too general to present anything for consideration by this court. See, in this connection, Gordon v. Gilmore, 141 Ga. 347 (2 a) (80 S. E. 1007); Richardson v. State, 141 Ga. 782 (2) (82 S. E. 134); Cowart v. State, 30 Ga. App. 289 (117 S. E. 663); McDonald v. State, 21 Ga. App. 125 (6) (94 S. E. 262).” Martin v. State, supra.

(f) “There was no evidence that required an instruction on the law of alibi, in the absence of a request.” Gibson v. State, 20 Ga. App. 73 (4) (93 S. E. 48). See also Shaw v. State, 10 Ga. App. 776 (2) (74 S. E. 89); Moore v. State, 17 Ga. App. 344 (2) (86 S. E. 822).

(g) “Under repeated decisions of this court and of the Supreme Court, each" special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ga. App. 770 (99 S. E. 471).

(h) When all the evidence and the entire charge of the court are considered in the light of the foregoing well-established principles, there is nothing in special grounds 1 to 6 (inclusive) of the motion for a new trial, which requires a reversal of the judgment.

2. Ground 7 of the motion for a new trial alleges that the court erred in “failing to give the definition of circumstantial evidence,” and ground 8 complains that “the court failed to charge the jury in said case the definition of reasonable doubt.” The court did charge on circumstantial evidence and on reasonable doubt, and if fuller instructions were desired, a proper and legal written request therefor should have been made. Jackson v. State, 132 Ga. 570 (3) (64 S. E. 656).

3. There is evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    17964.
    Hall v. The State.
    Decided April 12, 1927.
    Larceny of hog; from Berrien superior court — Judge Knight. January 8, 1927.
    The indictment charged the larceny of a red sow shoat and two red boar shoats, the property of J. M. Griner, one of which had a white face, and all of which were unmarked and about six months old. Griner testified, that he lost five hogs of the description given above, and next saw them about two or three weeks after at the place of Son Hall (the defendant) and Johnny Lee Hall; that when found they were marked with a smooth crop in each ear; that they were shut up in a patch around the barn; that when he saw Son Hall, about six weeks after the disappearance of the hogs, Hall said that he bought them from Alex Wiggins; that he (the witness) then went to the place of Alex Wiggins and found two more of his hogs there, the same two that ran with the three found at Son Hall’s place; that it would not be possible for him to be mistaken about these being his hogs, though the only way he knew them was from their color and size; that he may have had about two hundred hogs, and he was not familiar with many of them; that he ought to be familiar with these hogs, for he raised them right at his house; that he did not get possession of the hogs when he first demanded them, the defendant would not give them up, and he (the witness) got a warrant and went with the deputy sheriff and got them; that it was after he (the witness) got possession of them that he had a conversation with the defendant on the road, and “they never did make any further claim to the hogs, Son nor John.” No other witness testified, and the defendant made no statement at the trial.

      Jeff S. Story, Elsie Higgs Griner, for plaintiff in error,
    cited: Park’s Penal Code, § 1010; 11 Ga. App. 385; 5 Ga. App. 228; 6 Ga. App. 778; 8 Ga. App. 107.

      H. C. Morgan, solicitor-general, W. R. Smith, contra,
    cited: 14 Ga. App. 806; 11 Ga. App. 303 (2); 3 Ga. App. 600.
    Criminal Law, 16 C. J. p. 1178, n. 63.
    Larceny, 36 C, J. p. 903, n. 35,
   Broyles, C. J.

The evidence was insufficient to authorize the verdict, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworih, JJ., concur.


author: Luke, J.

text:
    17966.
    DREW v. THE STATE.
    Refusal to declare a mistrial because tlie prosecuting attorney put irrelevant questions to a witness was not cause for a new trial.
    The verdict finding the accused guilty of having on his premises apparatus for the making of intoxicating liquor was authorized by the evidence.
    Criminal Law, 16 C. J. p. 1143, n. 12.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.
    Decided April 12, 1927.
    Violating liquor law; from Webster superior court — Judge Littlejohn. January 10, 1927.

      G. Y. Harrell, M. A. Walker, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

1. The evidence authorized the defendant’s conviction of a violation of the prohibition statute, and the conviction has the approval of the trial judge.

2. In view of the note of the trial judge, the special assignment of error in ground 1 of the amendment to the motion for new trial is without merit.

3. It appears from the next ground that during the examination of the witness Cosby the following occurred: Solicitor-general: “Those stills found since last court were on land rented from Lowrey?” Answer: “Yes, sir.” Attorney for defendant: “What was the question?” Solicitor-general: “I asked him if what he found since last court was on land defendant rented from Lowrey.” Attorney for defendant: “Yes, sir, I object to that.” The court: “I think that is immaterial, about some other place.” Attorney for defendant: “I think the solicitor-general knew it was immaterial.” Solicitor-general: “I thought I would clear up any doubt that the attorney had.” Attorney for defendant: “Did you know it wasn’t relevant when you asked it?” Solicitor-general: “Yes, sir.” Attorney for defendant: “Then I move to declare a mistrial on account of that statement.” The court: “I overrule that motion. Proceed.” For no reason alleged did the court err in failing to declare a mistrial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    17968.
    Higgins v. The State.
    Decided April 12, 1927.
    Burglary; from Floyd superior court — Judge Maddox. January 29, 1927.

      Porter & Mebane, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 698, n. 88; p. 700, n. 92; p. 928, n. 81; p. 1049, n. 82; p. 1050, n. 84; p. 1063, n. 85; 17 C. J. p. 271, n. 27.
   Bloodworth, J.

1. The instructions to the jury covered every issue in the case, and, as far as legal and applicable to the facts, the requests to charge were covered by the charge as given.

2. When considered in the light of the entire charge, the excerpts therefrom of which complaint is made show no reversible error.

3. While the evidence of an accomplice must be corroborated, the extent of the corroboration is entirely for the jury. There being some corroborating testimony this court will not say that the evidence did not authorize the verdict.

Judgment affvrmed.

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


text:
    17969.
    Jones v. The State.
    Decided April 12, 1927.
    Assault with intent to murder; from Dougherty superior court —Judge Custer. January 20, 1927.
    Criminal Law, 16 C. J. p. 1217, n. 44; 17 C. J. p. 87, n. 44; p. 197, n. 65; p. 328, n. 3.
   Broyles, C. J.

1. There is no merit in the ground of the motion for a new trial which complains merely that the trial judge, after promptly excluding certain evidence objected to by the accused, failed to specifically instruct the jury not to consider the excluded evidence. There was no request for the instruction; and, moreover, the judge, in excluding the evidence, said: “Objection sustained, on the ground that it is a conclusion on the part of the witness. The statement so far made by the witness, gentlemen, is excluded from your consideration” (italics ours). The cases cited by counsel for the accused are easily differentiated by their facts from this case.

2. The two remaining special grounds of the motion for a new trial are not complete and understandable within themselves, and, therefore, under repeated rulings of the Supreme Court and of this court, are too defective'to be considered.

3. The general grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

W. I. Geer, for plaintiff in error.

B. C. Gardner, solicitor-general, contra.


text:
    17970.
    Hart v. The State.
    Decided April 12, 1927.
    Making intoxicating liquor; from Bartow superior court — -Judge Tarver. December 30, 1926.

      J. B. Whitaker, for plaintiff in error.

      C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1059, n. 42; p. 1061, n. 61; p. 1230, n. 66; p. 1231, n. 75, 76.
    Intoxicating Liquors, 33 C. J. p. 758, n. 87.
   Luke, J.

1. The evidence in this case is entirely circumstantial, but excludes every other reasonable hypothesis .than that of the guilt of the accused.

2. The ground of the motion for a new trial based on alleged newly discovered evidence is not considered, (1) because the affidavits in support of the witnesses upon whose newly discovered evidence a new trial is sought fail to name any associate of such witnesses. Civil Code (1910), § 6086; Ivey v. State, 154 Ga. 63 (113 S. E. 175); Carpenter v. State, 35 Ga. App. 349 (133 S. E. 350); (2) because the affidavit of the defendant and his counsel, seeking to show diligence, merely stated that they “did not know of the existence of the evidence of said witnesses . . before the trial of said case, and that same could not have been discovered by the exercise of ordinary care;” this being a mere conclusion, without basic facts by which the court could judge whether or not they used due diligence, and whether or not the evidence could have been discovered before by the exercise of such diligence. Taylor v. State, 132 Ga. 235 (3) (63 S. E. 1156); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178). Furthermore, the counter-affidavit of the sheriff was that the said witnesses were under indictment for manufacturing liquor and were fugitives from justice.

3. In the absence of a timely written request for fuller instructions, the following charge of the court sufficiently informed the jury that the burden was on the State to prove the defendant guilty beyond a reasonable doubt: “The law presumes him to be innocent until the contrary appears by proof which satisfies your minds beyond a reasonable doubt as to his guilt. A reasonable doubt is such a doubt as an honest juror would have in search for the truth.” Mathis v. State, 35 Ga. App. 583 (134 S. E. 186).

Judgment affirmed.

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


text:
    17971.
    VAUGHAN v. THE STATE.
    The statement objected to as being a mere conclusion of the witness, that he did not make a certain agreement, was properly admitted in evidence.
    The verdict.is not unsupported by evidence.
    Criminal Law, 16 C. J. p. 749, n. 57; p. 1119, n. 34; 17 C. J. p. 248, n. 3; p. 252, n. 16; p. 271, n. 41.
    Larceny, 36 C. J. p. 899, n. 34.
    Decided April 12, 1927.
    Larceny; from Bartow superior court — Judge Tarver. December 18, 1926.

      William T. Townsend, Dorsey, Shelton & Dorsey, Ralph H. Pharr, for plaintiff in error.

      C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

1. The accused was on trial charged with the larceny of a carload of cedar lumber. The contention of the State was that the lumber was to be paid for before it was moved, while the accused insisted that under an agreement with Ed Price, one of the owners of the lumber, he took possession before paying for it. While Ed Price was on the witness stand he was asked: “Did you ever agree at any time with him [the defendant] that you would carry it [payment of the purchase-price of the lumber] over until the next day?” He replied that he did not. This answer was objected to as being a conclusion. The court properly admitted the evidence. “The denial of the existence of a fact, from the very nature of the case, is direct evidence.” Chattahoochee Valley Railway Co. v. Bass, 9 Ga. App. 83 (6) (70 S. E. 683).

2. The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 561 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a. sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere when there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we .were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of the State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. 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 us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


text:
    17972.
    VAUGHAN v. THE STATE.
    Conceding tliat the defendant’s promise to pay cash for lumber when it should be loaded on ears was knowingly false and made with intent to deceive and defraud the vendor, and induced him to part with his property, yet, since it related to the future alone, it could not be the basis of a prosecution for cheating and swindling.
    Criminal Law, 16 C. J. p. 1178, n. 63.
    False Pretenses, 25 C. J. p. 589, n. 87; p. 590, n. 93; p. 593, n. 15; p. 594, n. 16; p. 650, n. 42.
    Decided April 12, 1927.
    Cheating and swindling; from Bartow superior court — Judge Tarver. December 18, 1926.

      William T. Townsend, Dorsey, Shelton & Dorsey, Ralph H. Pharr, for plaintiff in error..

      C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.
   Broyles, C. J.

1. One essential element in the offense of cheating and swindling by false representations is that the representations must relate to an existing fact or past event. A representation, even though false and fraudulent, relating to the future can not be the basis of a prosecution for cheating and swindling. Ryan v. State, 45 Ga. 128; Miller v. State, 99 Ga. 207 (25 S. E. 169); Dickerson v. State, 113 Ga. 1035 (39 S. E. 426); Edge v. State, 114 Ga. 113 (39 S. E. 889); Goddard v. State, 2 Ga. App. 154 (58 S. E. 304); Meacham v. State, 7 Ga. App. 713 (2) (68 S. E. 52).

2. The accused contracted to buy a quantity of lumber from the prosecutor and promised to pay cash for it when it should be loaded on the cars. This promise he failed to keep. However, the lumber was shipped by the prosecutor in accordance with the previous directions of the defendant, the latter not being present when the lumber was loaded. The defendant never paid for the lumber. Conceding that his promise to pay cash for the lumber when it should be loaded on the cars was knowingly false, and made to the prosecutor with the intent to deceive and defraud him, and that it did deceive and defraud him and induced him to part with his property, yet, under the above-stated ruling, that representation, since it related to the future alone, could not be the basis of a prosecution for cheating and swindling. It follows that the defendant’s conviction was contrary to law and the evidence and that the refusal to grant him a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17984.
    Shortmeier v. The State.
    Decided April 12, 1927.
    Assault with intent to murder; from Chatham superior court— Judge Meldrim. January 26, 1927.
    Application for certiorari was denied by the Supreme Court.

      Shelby Myrick, W. H. Boyd, Limerick Odom, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, Leo A. Morrissy, contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds, the verdict is supported by ample evidence and is approved by the trial judge, and this court is without authority to interfere.

Judgment affirmed.

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


text:
    17985.
    Walker v. The State.
    Decided April 12, 1927.
    Bobbery; from Fulton superior court — Judge Moore. January 29, 1927.

      T. J. Ripley, W. M. Bailey, for plaintiff in error.

      John A. Boykin, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Robbery, 34 Cyc. p. 1808, n. 78.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17988.
    MOORE v. THE STATE.
    While the evidence in this case raises a suspicion against the defendant, who was charged with making spirituous liquors, it is not sufficient to sustain his conviction of the offense charged.
    Intoxicating Liquors, 33 Q. J. p. 758, n. 80, 87;
    Decided April 12, 1927.
    Making liquor; from Macon superior court — Judge Crum presiding. January 8, 1927.

      Jere M. Moore, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

Cleo Moore was convicted of manufacturing spirituous liquors, and the jury recommended that he be punished as for a misdemeanor. The gist of the evidence is as follows: On a certain afternoon in August, 1926, officers went in search of a still, but desisted from their quest because of a very severe rain. Early next morning they renewed their search and found a still, two barrels of alcoholic beer on the edge of a swamp, forty to fifty steps from the still, and seven or eight barrels that had recently had beer in them and had apparently been emptied an hour or two prior to their discovery. The still was very hot, and the officers were of the opinion that liquor had been made in it that morning. The rain of the previous afternoon was hard enough to blot out all tracks made before it fell, but the tracks, of two men and a boy were clearly visible at the still. The still was in Macon county, and these tracks led to the home of one Whit in that county. He lived about three quarters of a mile from the still, and his wife was the defendant’s mother-in-law. The defendant was arrested in Montezuma the same morning. He ran and escaped from the officer, but returned at half past four of the same afternoon with a Mr. Jenkins, on whose place he worked, and surrendered and made bond. There was another home about three quarters of a mile from the still. The defendant lived in Dooly county at a distance of about six miles from the still. He was at Whit’s house the afternoon before the still was found and the following morning. He was preparing to leave that house when the officers passed on their way to the still, and did leave at once. The defendant and his brother arrived at Whit’s house the day before the still was found. None of the tracks leading from the still to the house were identified in any way, and there was no evidence to show that the defendant had ever been nearer the still than the home of Whit. The arresting officer swore that the defendant approached him two weeks after the still was found and said: “What are we going to do about that thing down there?” The officer replied: “It’s up to you all. I have done all I can do.” The defendant then said: “If I have to make time, there are others that should make time that are larger than I am.” Whit swore that the defendant had told him that lie was “going to put up some beer down there;” whereupon Whit replied that the defendant could not run his first run in Macon county without being caught.

Judgment reversed.

Bloodworth, J., concurs. Broyles, G. J., dissents.


author: Bkoyles, C. J.

text:
    17890.
    Fouts v. The State.
    Decided April 13, 1927.
    Forgery; from Gordon superior court — Judge Tarver. November 27, 1926.
    Forgery, 26 C. J. p. 971, n. 69; p. 97S, n. 94.
   Bkoyles, C. J.

The venue of the offense charged was sufficiently proved; the verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial require another hearing of the case. Judgment affirmed.

Luke and Bloodworth, JJ., coneur.

J. H. Paschall, J. M. Lang, for plaintiff in error.

C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.


text:
    17921.
    WESTERN & ATLANTIC RAILROAD v. HENDERSON et al.

    A constitutional question can not be raised for the first time in a motion for a new trial.
    The amount of damages awarded by the verdict ($15,000) can not, as a matter of law, be held excessive.
    The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial require another hearing of the case.
    Appeal and Error, 3 O. J. p. 711, n. 79; 4 O. J. p. 1093, n. 77.
    Constitutional Law, 12 C. J. p. 786, n. 69.
    Death, 17 C. J. p. 1350, n. 7.
    New Trial, 29 Cye. p. 824, n. 41.
    Decided April 13, 1927.
    Damages; from Whitfield superior court — Judge Tarver. December 11, 1926.
    Certiorari was granted by the Supreme Court.

      Tye, Peeples & Tye, Maddox, Maddox Mitchell, Neel & Neel, Fitzgerald Hall, for plaintiff in error.

      W. E. & Gordon Mann, J. A. McFarland, contra.
   Broyles, C. J.

This is the second appearance of this case be-. fore this court. The pleadings and the evidence were substantially identical upon both trials, except that upon the trial now under review the plaintiff amended her petition by alleging an additional act of negligence on the part of the railroad company, to wit, the running of its engine and trains by a near-sighted and practically blind engineer. As to this alleged act of negligence both the plaintiff and the defendant introduced evidence, and the issue of fact thus raised was decided by the jury. Under the facts stated above, the previous ruling of this court that the plaintiff was entitled to a recovery (35 Ga. App. 353, 133 S. E. 645) has become the law of the case, and that ruling must be and is adhered to.'

However, it is contended by the plaintiff in error that the verdict ($15,000) was excessive. The evidence showed that the plaintiff’s husband at the time he was killed by the running of the defendant’s train was a little over 38 years of age; that he was earning $130 a month, and in addition was getting his house rent free, which was worth from $25 to $35 a month; that he was industrious, hard working, in good health, and seldom ill. In view of these and other facts disclosed by the record, this court can not hold as a matter of law that the amount of the verdict was so great as to show bias and prejudice on the part of the jury. Nor can this court hold as a matter of law (as contended by counsel for the plaintiff in error) that the evidence adduced demanded a finding by the jury, under the doctrine of comparative negligence (which reduces the amount of a plaintiff’s recovery in proportion to the amount of default or negligence attributable to him), that the amount of default attributable to the plaintiff’s husband was not less than 49 per cent, of the aggregate default attributable to him and to the employees of the defendant in the occurrence of the collision which caused his death, and that the amount of the verdict should have been reduced accordingly.

The charge complained of in the 14th special ground of the motion for a new trial was given and excepted to in the first trial of this case and was approved by this court on the first appearance of the case before it (see 35 Ga. App. 353), and that ruling has become the law of the case.

Special ground 18 of the motion for a new trial attempts to raise a constitutional question. The ground alleges that an excerpt from the charge of the court, based upon and construing section 2780 of the Civil Code of 1910, was in violation of the fourteenth amendment of the constitution of the United States. The ground alleges also that if the code section can properly be construed as it was construed in the charge excepted to, then the section itself is violative of the fourteenth amendment of the constitution of the United States. The code section in question has uniformly and repeatedly been construed by this court and the Supreme Court exactly as it was construed by the trial judge in this case, and this is admitted in the brief of counsel for the plaintiff in error, who also contend.in their brief that the statute itself (code section 2780) is in violation of the fourteenth amendment to the constitution of the United States. In view of these circumstances it is obvious that the statute itself is the primary object of attack in this ground of the motion for a new trial, and such an attack can not properly be made in a motion for a new trial. A constitutional, question can not be raised for the first time in a motion for a new trial. Ga. & Fla. Ry. v. Newton, 140 Ga. 463 (3) (79 S. E. 142); Hendry v. State, 147 Ga. 260 (8) (93 S. E. 413); McClelland v. State, 27 Ga. App. 783 (110 S. E. 245).

The remaining grounds of the motion for a new trial (all of which complain of refusals to charge as requested, or of errors, either of omission or commission, in the charge of the court) show no reversible error.

The request of the defendant in error, that damages for bringing up the case for delay be awarded her, is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    17160.
    League v. Churchill et al.

    Decided April 16, 1927.
    Appeal; from Richmond superior court — Judge A. L. Franklin. January 9, 1936.
    The certified questions are sufficiently indicated and the substance of the answers is given in the following headnote to the opinion of the Supreme Court: “Under the act of 1894 (Ga. L. 1894, p. 103, Code of 1910, §§ 3873-3880) a foreign will can be probated, and Georgia property willed thereunder can be administered, only by such resident executor as may be named therein, or, if none, by a resident administrator with the will annexed, appointed at the instance of any heir, legatee, distributee, devisee, or creditor of the testator. The purpose and effect of the act of 1894 is not only to require the domestic probate of foreign wills before Georgia property can be administered thereunder, but also to prohibit such probate and the administration of Georgia property willed thereunder by any person other than a resident executor or a resident administrator with the will annexed, selected and appointed as therein provided, to the exclusion of J the executor therein named or any administrator with the will annexed appointed elsewhere/ referred to in section 9 of the act.”

      Executors and Administrators, 24 C. J. p. 1112, n. 10.
    Wills, 40 Cyc. p. 1237, n. 87.
   Jenkins, P. J.

Under the answers to the questions certified by this court to the Supreme Court in this ease (164 Ga. 137 S. E. 632), the judge of the superior court did not err in the judgment rendered on the appeal before him in the probate proceedings. The principle of estoppel is not involved.

Judgment affirmed.

Stephens and Bell, JJ., eoncur.

Wright & Jackson, for plaintiff in error.

Callaway & Howard, William H. Fleming, Hamilton Phinizy, James S. Bussey Jr., contra.


author: Bell, J.

text:
    17581.
    Edenfield v. Smith.
    Decided April 16, 1927.
    Bills and Notes, 8 C. J. p. 618, n. 99; p. 803, n. 17; p. 860, n. 3, 5; p. 940, n. 66; p. 976, n. 29.
    Pleading, 31 Oye. p. 230, n. 7.
    Trial, 38 Cyc. p. 1575, n. 23.
   Bell, J.

1. The conversion by the holder of collateral pledged to secure a promissory note does not operate “as a cancellation of the note.” The remedy of the maker or the party aggrieved by the conversion may be an action of trover or a suit or counterclaim for damages. Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165).

2. Where the holder of a promissory note, with which certain corporate stocks were pledged as collateral, brought suit upon the note, and where the defendant pleaded that the plaintiff had converted the collateral and that the conversion thereof “operated as a cancellation of the note sued on,” but failed to plead that he had been damaged in any amount as a result of the conversion, and there was no attempt to plead any other defense, the answer was fatally defective. This being true, and there being no request to charge, there was no error in directing a verdict in favor of the plaintiff, irrespective of whether the evidence might have been sufficient to sustain a finding in favor of the defendant both as to the i conversion and as to damages flowing therefrom. In such a case the trial judge is not bound to submit to the jury a defense not pleaded, even though there may have been evidence, introduced without objection, in support of such defense. See, in this connection, Fisher v. George S. Jones Co., 108 Ga. 490 (34 S. E. 172); Blaylock v. Walker County Bank, 36 Ga. App. 377 (136 S. E. 924), and cases cited. No decision is made as to whether the rule might be different where there is a proper and timely written request to charge pn such defense.

3. Where a copy of the note sued on was attached to the petition and showed no indorsement by the original payee, but where the plaintiff, suing as indorsee, alleged in the petition that he was the rightful holder and owner of the note, and this allegation was admitted in the defendant’s answer, there was no error in admitting the note in evidence, over the objection of the defendant maker that it materially varied from the pleadings, although the original note, as produced and tendered in evidence, differently from the copy, showed an indorsement by the payee to the plaintiff.

Judgment affirmed.

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

Complaint; from city court of Atlanta — Judge Beid. June 19, 1926.

Jones, Evins, Moore & Powers, for plaintiff in error.

A. R. Dorsey, Bond Almand, contra.


text:
    17591.
    Vandalsem v. Caldwell.
    Decided April 16, 1927.
    Damages; from Colquitt superior court — Judge W. E. Thomas. June 26, 1926.

      James L. Dowling, for plaintiff in error.

      Waldo DeLoache, contra.
    Appeal and Error, 4 C. J. p. 1093, n. 77.
    Costs, 15 C. J. p. 285, n. 41.
    Pledges, 31 Cye. p. 884, n. 60 New.
   Bell, J.

1. In Vandalsem v. Caldwell, 33 Ga. App. 88 (125 S. E. 716), this court held that the petition in this ease set forth a cause of action and that the general demurrer thereto was properly overruled. It necessarily follows from the rulings then made, which are now binding as the law of the case, that, even if the defect in the affidavit to foreclose the depositary’s lien might have been cured by an amendment offered in time, where no amendment was offered until after the property had been improperly disposed of under the defective process and the owner had brought suit against the depositary for the resulting damage, it was then too late to amend the affidavit of foreclosure so as to relieve the depositary' from liability. Compare Civil Code (1910), §§ 5702, 5706; Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 (7) (27 S. E. 975); Real Estate Bank & Trust Co. v. Baldwin Locomotive Works, 145 Ga. 105 (2) (88 S. E. 584).

2. The court did not err in disallowing the proffered amendment, nor in directing a finding in favor of the plaintiff on the question of liability, nor in thereafter refusing the defendant’s motion for a new trial.

3. The motion of the defendant in error to award damages against the plaintiff in error on the theory that the case was brought to this court for delay only can not be sustained.

'Judgment affirmed.

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


text:
    17597.
    NELLIS & COMPANY v. GREEN & STALLWORTH.
    1. Where S., the owner of a peach orchard., made a contract with G., by the terms of which S. was to pick the peaches then being produced in the orchard and deliver them at a certain point to G., who was thereupon to pack and prepare them for market, furnishing for that purpose at his own expense the labor and'all necessary containers, and paying all other expenses after the receipt of the peaches by him, and was to have complete control of the shipping and selling, and the parties were to share equally the net proceeds of the sale, there was a partnership between them with reference to the ownership, sale, and collection for the peaches, dating at least from the delivery of the peaches by S. to G. The same would also be true if the agreement was that the parties were to “go fifty-fifty on the crop.”
    2. In a suit by a partnership to enforce a liability, it is no defense for the defendant to show merely that he has offset his debt to the partnership against a debt to him by one of the partners as an individual.
    (а) It is immaterial that the defendant may have had no notice of the existence of the partnership at the creation of such debt of the individual member, where the defendant’s transactions with the individual member would have been.the same had the defendant been put on notice of that fact.
    (a) Under the facts of this ease, the plaintiffs could not have been defeated as to any part of the amount claimed, except upon the ground of estoppel, the burden of establishing which rested upon the defendant and involved proof that the defendant neither knew nor should have known that the peaches were the property of the plaintiffs as partners.
    (c) If, as to a part of the amount sued for, the plaintiffs should not have recovered unless the defendant in its dealings with the individual member had knowledge of the existence of the partnership -and of its ownership of the property dealt with, the evidence was sufficient to authorize the inference of such knowledge.
    3. The evidence authorized the verdict in favor of the plaintiffs. There was no error in the court’s charge. Although certain evidence which the court admitted may have been subject to the objection that it was irrelevant and immaterial, there appears no reasonable likelihood that the defendant was prejudiced thereby. The court did not err in refusing a new trial.
    Decided April 16, 1927.
    Attachment; from Houston superior court — Judge Mathews. July 10, 1926:
    Appeal and Error, 4 O. J. p. 969, n. 56.
    Estoppel, 21 O. J. p. 1250, n. 82.
    New Trial, 29 Cyc. p. 780, n. 49; p. 781, n. 50.
    Partnership, 30 Cyc. p. 372, n. 13, 14; p. 378, n. 28; p. 386, n. 64, 65; p. 388, n. 72; p. 390, n. 80, 81; p. 502, n. 70; p. 589, n. 9 New; p. 591, n. 21.

      Martin, Martin & Snow, for plaintiffs in error.

      C. L. Shepard, contra.
   Bell, J.

This was a suit by Green and Stallworth, alleged to be a partnership composed of Miles L. Green and Paul Stallworth, against F. E. Nellis & Company, a corporation, to recover an amount which the plaintiffs claimed the defendant was due them as the proceeds of certain peaches sold by the defendant for the plaintiffs on commission. The trial resulted in a verdict in favor of the plaintiffs and the case is here upon exceptions by the defendant to the overruling of its motion for a new trial. The defendant’s contentions under the general grounds of the motion are that the evidence showed conclusively that the plaintiffs were not partners, but that, whether they were so or not, the defendant had fully paid the amount of the alleged debt by applying the same as a credit to indebtedness due to the defendant by Miles L. Green individually, with whom the defendant dealt without knowledge of the alleged partnership. In the special grounds of the motion, error is assigned upon two excerpts from the charge of the court and upon the admission of certain evidence.

Miles L. Green testified: “I know Paul.Stallworth. I knew him during the peach season of 1924. I was connected with him in a business matter in connection with his crop of peaches. He was a peach grower, and, as far as my connection with him was concerned, I bought a half interest in his peaches located at Bonaire on the terms I was to furnish and pay all expenses after he delivered them to the packing shed, and we would go fifty-fifty on the crop. Paul Stallworth and myself composed the firm. . . I agreed personally to buy one half interest for furnishing the baskets and paying all expenses after delivery to the sheds.” Paul Stallworth testified as follows: “I had a crop of peaches at Bonaire in 1924. I made a trade with Myles L. Green about them. My final trade with Mr. Green was that I agreed to pick the peaches and deliver them to the little shed I had on the place, and he was to furnish the bushel baskets to ship them in, and pack them and ship them through Nellis & Company, and we were to split the net profits fifty-fifty. I have never received any payment out of these peaches. The first time that I saw Mr. Schacht was during court here when we had the other trial. I never did talk with him in connection with this peach deal. . I have talked to several besides Green. I have never talked to any of Nellis & Company’s people. I had not gotten to the place when I was pretty desperate on that fruit crop that year, but I felt like I ought to get something out of it with good fruit, and the returns showed they brought very good prices, considering the large crop of peaches. Mr. Green and myself had no definite arrangement if any loss took place; the only arrangement was that we were to split the profits; he was to pack the fruit and ship it, and I was to split the returns. If the fruit had gone in the market bad and there had been a loss instead of a gain, I suppose I would have my part of the freight. There was no agreement with reference to that. We had good fruit, and naturally we did not expect anything like that. All that I discussed with Mr. Green was the profit end of it; that was just the agreement we had. We had no arrangement about losses; we agreed to split the net profits fifty-fifty; half of it was mine and half of it was his. If there had been any loss, they could have collected it out of me. I have got a home and it is paid for, and no encumbrance on it.- I was sick that summer; that is why I did like I did. I was in the hospital fifteen days while he was handling these peaches. Mr. Green was to have complete control of the selling end and do the shipping; it was agreed they were to be shipped to Nellis & Company. I was not to have anything to do with that end of it unless I saw fit; I left that up to Mr. Green, and I didn’t know anything about it.”

The following further facts were developed by the evidence: During the season of 1924 the defendant sold peaches on commission for various growers in the Fort Valley section. They were represented locally by E. L. Schacht, as general agent. Green controlled the marketing of peaches for several growers during that season, and sold the same through Nellis & Company; as to which the transactions between him and this company were substantially the same as those relating to the peaches produced by Stallworth. The defendant advanced money to him at various times, aggregating for. the season about $5,000. The evidence is undisputed that the net proceeds of the Stallworth peaches, handled by the defendant, were entered as a credit on its account against Green as an individual for such advances. The defendant actually made no payment to any one for the Stallworth peaches. On the other hand, it kept the proceeds and only made book entries with reference thereto. By far the larger portion of the advances to Green were undoubtedly made by the defendant without reference to the character of Green’s connection with the Stallworth peaches, and the evidence may have warranted the inference that this was true as to all of such advances. Certainly a contrary inference was not demanded as to any except, perhaps, a few items aggregating but a small sum as compared with the proceeds of the Stallworth peaches, for which the plaintiffs sued. More than this, the evidence authorized the inference that before the defendant had any transaction with reference to the Stallworth peaches its agent, Schacht, was fully apprized of the arrangement between Green and Stallworth in regard thereto.

The portions of the court’s charge of which complaint is made are as follows:

(1) “If a contract was made between Green and Stallworth by which Green bought an interest in the peaches, and there was an agreement that he would contribute some material thing of value for the purpose of preparing those peaches for market, and they had a joint interest after the peaches were put in the bushel baskets, I charge you that if the peaches were put in the baskets in pursuance of a contract of that sort, in which transaction Green made an investment of material and money, that became partnership property, and therefore they would be partners, if that was done with one single venture only.”

(2) “If the contract was merely that Green was to furnish his services and pack the peaches, the case would be different. But if Green made an investment with an agreement that they would be equally interested in the peaches, and that contract was carried out and peaches were crated, using the money or material furnished by Green, in pursuance of a contract, .then that would be a partnership venture, or if there was a joint interest in profits and losses, it would be-a partnership. A joint interest means where both parties have an interest in the property itself as distinguished from air employee’s right to do labor with the understanding that his-compensation or wages depended upon the amount of profit made out of the venture. Where that is true, — that is, where the proposition is that one hires himself to another man for a part of the profits, — that would not be a partnership, if nothing more appears.”

It is insisted that these charges 'Were erroneous because they contained expressions of opinion as to what had been proved and as to whether the.partnership existed as alleged in the petition, and because they 'were contrary to law in that, under the facts stated, the plaintiffs were not partners.

The evidence to which objection was made was ..the testimony of Green in reference to a suit brought by him as an individual against Nellis & Company, which was pending at the trial of the present action. Green testified that he had brought such suit, and stated in a general way the nature of the indebtedness alleged therein. He 'testified that the defendant denied any indebtedness to him as charged in that action, and that the claims therein made were separate and distinct from the cause of action relied on in the suit by him and Stallworth as partners.

The evidence, boiled down, shows that Stallworth owned certain peaches in an orchard near Bonaire, Georgia, and that he and Green made a contract by the terms of which Stallworth was to pick the peaches and deliver them at his packing shed; that Green was thereupon to pack and prepare them for market, furnishing for that purpose at his own expense the labor and all necessary containers, and paying all other expenses after the receipt of the same by him, and was to have complete control of the shipping and selling, and the parties were to “go fifty-fifty on the crop,” or to share equally the net proceeds of the sale. The testimony of Green was to the effect that he bought a “half interest” in the peaches, and that he and Stallworth were to “go fifty-fifty on the crop.” The testimony of .Stallworth put the interest of each in the “net profits.” We think the testimony of either of these parties shows that the relation between them under the contract was that of partners. As was said by Judge Powell in Butler v. Frank, 7 Ga. App. 655, 657 (67 S. E. 884), “if two or more persons put into an enterprise property, money or other things of value, other than mere personal services [italics ours], upon an agreement that they shall each have an interest in the profits as such, — that the earnings on the investment shall determine the extent of the profits, if any, to be received, — it is a partnership. It is not necessary to specify as to the liability for the losses in such cases, for if the business venture proves unsuccessful or unprofitable, the loss occurs as-the inevitable concomitant.” The decision in tliat case seems to be a complete answer to the contention that it must appear in the partnership agreement that each of the parties should share the losses, if any should occur.

“Where there is nothing to show a contrary intention, it will be presumed that the losses were to be shared in the same proportion as the profits.” 22 Am. & Eng. Enc. Law, 43. See also Gray v. Blasingame, 110 Ga. 343 (35 S. E. 653), where an agreement to market peaches was held to constitute a partnership, though nothing was said as to the losses. In that case the court quoted from Perry v. Butt, 14 Ga. 699, as follows: “The truth is, in the-absence of any express agreement to the contrary, the law, under this partnership in profits, devolves the losses likewise upon each and all of the partners.” Compare Huguley v. Morris, 65 Ga. 667; Camp v. Montgomery, 75 Ga. 795. There may be a partnership between persons who contemplate but a single business transaction, provided there is a sufficient unity of interest and control in the business. 30 Cyc. 372.

If Green had put into the venture nothing except his personal services, there might have been some merit in the contention of the plaintiff in error that the agreement in question constituted a mere working arrangement, creating the relation of employer and employee and fixing as the employee's compensation a certain portion of the profits. See, in this connection, Thornton v. McDonald, 108 Ga. 3 (2) (33 S. E. 680); Thornton v. George, 108 Ga. 9 (33 S. E. 633); Hodges v. Rogers, 115 Ga. 951 (2) (42 S. E. 251); Padgett v. Ford, 117 Ga. 508 (2) (43 S. E. 1002); Hall v. Stone, 11 Ga. App. 269 (75 S. E. 140); Dawson National Bank v. Ward, 120 Ga. 861 (48 S. E. 313); S. C. & Ga. R. Co. v. Augusta So. R. Co., 107 Ga. 164 (33 S. E. 36). However, the distinction between cases like the present, in which both parties put into the enterprise money or property, and those in which one of the parties merely sells his personal services to another in consideration of a stated portion of the profits, has been pointed out several times both by this court and the Supreme Court, and we can not concur in the view that in this case Green was merely the employee of Stallworth. Nor is it true that the relation between them was that of creditor and debtor. They were partners. Brandon v. Conner, 117 Ga. 759 (45 S. E. 371, 63 L. R. A. 260); Hand Trading Co. v. Jones, 129 Ga. 853 (60 S. E. 154); Floyd v. Kicklighter, 139 Ga. 133 (76 S. E. 1011); Maynard v. Jackson, 159 Ga. 20 (124 S. E. 892); Dawson v. Blitch, 11 Ga. App. 840 (76 S. E. 596); Clegg v. Lyons, 30 Ga. App. 482, 487 (118 S. E. 432).

While we have briefly discussed the question of whether the evidence showed that the plaintiffs were partners as alleged, we might have disposed of this question merely by citing the recent case of Smith v. Hancock, 163 Ga. 222 (136 S. E. 52). That case was decided since the present case was argued, and in it the Supreme Court, under similar facts and where the agreement was in reference to the same character of subject-matter (peaches), held that the relation established by such agreement was that of partners.

Nothing is better settled than that a debtor to a partnership can not discharge his debt to the firm by setting it off against a debt due to him by one of the partners individually, where there is nothing to justify an estoppel in his favor against the partnership. See Hardy v. Jones, 13 Ga. App. 457 (79 S. E. 246); Lovelace v. Reliable Garage, 33 Ga. App. 289 (125 S. E. 877); Eady v. Newton Coal Co., 123 Ga. 557 (2) (51 S. E. 661, 1 L. R. A. (N. S.) 650, 3 Ann. Cas. 148); 20 R. C. L. 910; 30 Cyc. 502. In a suit by the partnership to enforce a liability which the defendant seeks to avoid merely upon the ground that he has credited the amount of the debt on an account which he holds against one of the partners as an individual, it is immaterial that the defendant may not have had knowledge of the existence of the partnership. In Rogers v. Batchelor, 12 Peters, 221, 37 U. S. 181, 9 L. ed. 1063), the United States Supreme Court said: “But we think that the true principle to be extracted from the authorities is that one partner can not apply the partnership funds or securities to the discharge of his own private debt without their consent; and that without their consent the title to the property is not divested in favor of such separate creditor, whether he knew it to be partnership property or not. In short, the right depends, not upon his own knowledge that it was partnership property, but upon the fact whether the other partners had assented to such disposition of it or not.” The code provides that' “Third persons acquire no title to partnership assets by purchase from one member, when notice or a reasonable ground of suspicion is known to them that the partner is misapplying, or seeks to misapply such assets.” Civil Code (1910), § 3184. This provision has no application in the present case, although by analogy it may shed light on the question here under consideration. Of course, circumstances might arise whereby the partnership would be estopped to insist that the liability was one accruing to the partnership rather than to one of the partners with whom the defendant dealt and against whose debt the defendant had made the offset, as where the partnership occupies the relation of a concealed principal and by reason of such concealment the defendant has acted to his detriment in dealing with one of the members as an individual. Here the defendant simply made a book entry on the unsecured open account which it held against Green for advances which, certainly as to some items and inferably as to others, it made to Green without reference to whether the Stallworth peaches were Green’s property or the property of the plaintiff partnership. It at no time had any security for Green’s debt and surrendered none. If Green was indebted to the defendant as claimed, he is still indebted. Unquestionably, as to a large portion of the plaintiffs’ claim, the defendant, so far as appears, has not altered its position nor done anything to its detriment as a result of its alleged want of notice of the existence of the partnership. If, as to an amount equal to some of the advances, the plaintiffs should have been estopped unless the defendant knew of the partnership and its title to the peaches when making such advances, there was evidence sufficient to authorize the inference of such knowledge. Under the facts appearing, the plaintiffs could not have been defeated as to any part of the amount claimed except upon the ground of estoppel, the burden of establishing which rested upon the defendant and involved proof that it neither knew nor should have known of the partnership. See Fidelity & Deposit Co. v. Nisbet, 119 Ga. 316 (7) (46 S. E. 444); Irvine v. Wiley, 145 Ga. 867 (3) (90 S. E. 69); Alston v. French, 5 Ga. App. 110 (2) (62 S. E. 713). The contention, therefore, that the plaintiff’s debt was, as a matter of law, paid by the offset referred to can not be sustained.

Under the rulings made in the two preceding divisions, the evidence authorized the verdict. From what is said in the first division, there was no error in either of the excerpts from the charge of the court. See, in this connection, Powell v. Moore, 79 Ga. 524 (4 S. E. 383). In view of tbe facts developed by the evidence, it may be that the testimony of Green with reference to his separate suit was relevant and admissible. But whether so or not, it is not likely that the defendant was prejudiced by its admission. Compare So. Ry. Co. v. Harper, 32 Ga. App. 267 (2) (123 S. E. 154). The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    17606.
    Hutchins & Montgomery v. Ezzard.
    Decided April 16, 1927.
    Complaint; from Gwinnett superior court — Judge Stark. July 14, 1926.

      N. L. Hutchins, for plaintiffs in error. O. A. Nix, contra.
    Appeal and Error, 4 O. J. p. 833, n. 57; p. 834, n. 60; p. 851,. n. 53; p. 909, n. 69.
   Bell, J.

This court can not say as a matter of law that the verdict in this case was unsupported by the evidence, nor that any prejudicial error was committed during the trial. It follows that the -judgment refusing a new trial should not be disturbed.

Judgment affirmed.

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


text:
    17611.
    Southern Surety Company v. Williams.
    1. As to a surety on a contractor’s bond executed in accordance with the act approved August 8, 1916 (Ga. L. 1916, p. 94; So. Surety Oo. v. Dawes, 161 Ga. 207, 130 S. E. 577), to secure the performance of the contractor’s obligations under a contract with a municipality for “the construction of paving and -other improvements on the streets,” an employee of the contractor is not doing work “under and for the purpose of” the latter contract where he is engaged only in “winding up the affairs” of his employer in the particular location, such as collecting and looking after the machinery and “shipping it to the next work they were going to do,” all of this being done after the paving and the other improvements have been fully completed and after the municipality has formally and finally accepted the same as a compliance with the contract between it and the contractor.
    2. In this action by such employee against the surety to recover for such services, the surety was not liable, and, the verdict against it being contrary to law, the court erred in refusing a new trial. See Civil Code (1910), § 3540; 32 Cyc. 76, 154.

      New Trial, 29 Cyc. p. 818, n. 30.
    Principal and Surety, 32 Oye. p. 76, n. 42, 43; p. 154, n. 2; p. 166, n. 63; p. 167, n. 67.

      Decided April 16, 1927.
    Complaint on bond; from city court of Thomasville — Judge MacIntyre. July 10, 1926.

      Branch & Snow, for plaintiff in error. Titus & Dekle, contra.
   Bell, J.

Adams, Evans & Company entered into a contract with the City of Thomasville “for the construction of certain paving and other improvements on the streets,” and gave a bond on which Southern Surety Company was surety. This bond was in accordance with the provisions of the act of August 8, 1916 (Ga. L. 1916, p. 94), and was conditioned as follows: “The conditions of this obligation are such that if the above-mentioned principal shall complete said contract in accordance with the terms, save the city free from all costs and charges that may accrue on account of doing the work specified, pay as they become due all just claims for work, tools, machinery, skill, and materials furnished by persons under and for the purpose of said contract, and comply with the laws appertaining to said contract, then this bond shall be void.” The present suit was brought against the surety company by J. B. Williams, an employee of the contractor, to recover for work alleged to have been done by Williams for the contractor under the main contract with the city. The trial of the case resulted in a verdict in favor of the plaintiff, and the surety company excepted to the overruling of its motion for a new trial. The only question raised for decision in this court is whether the recovery by the plaintiff was authorized under the law and the facts.

From the evidence it appears that on or about March 12, 1922, the contractor completed the work undertaken by the contract, receiving payment therefor, and the work was officially accepted by the city authorities, thus terminating the relation of the city and the contractor under the' paving contract. Williams, the plaintiff in this suit, had been employed by the contractor as cashier, and continued in its service for the purpose of winding up its affairs in Thomasville, such as gathering up and looking after its machinery and shipping the machinery to the next place where the contractor was expected to need it. All the services for which the plaintiff sought to hold the surety company liable were rendered after the contractor had finished the work it was to do under the paving contract and after the work had been officially accepted by the city and paid for in full. In our opinion, the liability sought to be enforced is not one which the surety assumed under its contract. Since the entire work to be performed by the contractor under the paving contract had been fully executed, the plaintiff’s labor was not done ’“under and for the purpose of said contract,” and, for this reason, the verdict in the plaintiff’s favor was contrary to law, and the court should have granted the defendant a new trial.

Judgment reversed.

J enlcins, P. J., md Stephens, J., concur.


text:
    17628.
    Joyner v. Reynolds Brothers Lumber Co.
    Agency, 2 C. J. p. 775, n. 37; p. 777, n. 55; p. 780, n. 77.
    Sales, 35 Cyc. p. 213, n. 32; p. 573, n. 75.
    Trial, 38 Cyc. p. 1575, n. 22.
   Bell, J.

1. In this action upon a promissory note, in which the defendant pleaded partial failure of consideration by reason of an alleged “shortage” in the quantity of goods purchased, the testimony having conclusively established that the' defendant had reasonable opportunity to discover the deficiency, if existing, prior to the execution of the note sued on, it thus appears, as a matter of law, that any defense which might have been available as a result thereof was waived. Gamble v. Knott, 40 Ga. 199 (2); Moore v. Flowers Lumber Co., 35 Ga. App. 336 (133 S. E. 650).

2. Moreover, the defendant having testified that he “counted the bundles,” but “did not count the individual pieces,” and did not know of his own knowledge “what amount there was, you could not tell anything about it on account of the bundles,” “found some of it short,” but “could not tell how much of it was short.” . . “No man can tell how much was short until he counts it out,” and there being no other evidence on that question, the averments of the plea with regard to the alleged shortage were not sustained, and a verdict in favor of the defendant oh such issue would not have been authorized. Compare Kiser Co. v. Mendel Department Store, 32 Ga. App. 194 (122 S. E. 794); Miller v. Timmerman, 35 Ga. App. 83 (132 S. E. 138).

3. An agreement between a manufacturer of goods and another as sales agent, which merely provides that the, latter shall represent the former “as sales agent for the territory from Thomasville, Georgia, north, south, and east,” and shall receive a certain commission on all goods “sold in said territory,” is too vague and indefinite with respect to territory to entitle the alleged agent to commissions on sales made independently of any effort or contribution by him, although he might perhaps recover for sales resulting directly or indirectly from his services. It follows that the defendant’s plea of set-oil of certain commissions alleged to be due him on sales made by the plaintiff, which commissions, as appears from the answer, were claimed solely because of such contract, was ineffectual- to set forth any defense.

Decided April 16, 1927.

Complaint; from city court of "Valdosta — Judge Cranford. July 20, 1926.

Little & Dickerson, Copeland & Dukes, for plaintiff in error.

R. E. L. Spence Jr., contra.

4. The defendant’s evidence being insufficient to sustain the plea of partial failure of consideration, and the plea of offset being fatally defective, and no other defense being made, the court did not err in directing a verdict in favor of the plaintiff for the alleged balance of the note sued on. Hindman v. Raper, 143 Ga. 643 (2) (85 S. E. 843).

Judgment affirmed.

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


text:
    17637.
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. PARKER.
    In this action on a beneficiary certificate against a fraternal beneficiary association, in which a verdict was returned for the plaintiff, the evidence having conclusively established the defense of material misrepresentations inducing the issuance of the certificate or policy, the court erred in not granting a new trial.
    Appeal and Error, 4 C. J. p. 833, n. 53; p. 834, n. 65.
    Insurance, 32 C. J. p. 1271, n. 14; p. 1283, n. 92.
    Mutual Benefit Insurance, 29 Cyc. p. 86, n. 90; p. 87, n. 91, 92; p. 90, n. 10.
    New Trial, 29 Cyc. p. 818, n. 30; p. '820, n. 35.
    Decided April 16, 1927.
    Complaint on life-insurance policy; from Walker superior court —Judge Maddox. August 2, 1926.

      Rosser & Shaw, for plaintiff in error.

      G. E. Maddox, Norman Shattuck, contra.
   Bell, J.

Mrs. Inez Parker prevailed in the court below in a suit against the Sovereign Camp of the Woodmen of the World, a fraternal beneficiary association, on a certificate issued to her husband, Wiley B. Parker, in which she was named as the beneficiary. The defendant has excepted to the refusal of its motion for a neiv trial. The defendant pleaded that the policy or certificate was void, because of material misrepresentations made in the application. It is our opinion that this plea was sustained, as a matter of law, by the evidence, and that the verdict was contrary to the evidence and the law. The assured said in his application that he had consulted no physician for any disease or injury during the past five years; that he had never had a chronic cough, consumption, tuberculosis, or any other disease of the throat or respiratory organs; and that he was at the time in sound bodily health. The application was made on July 27, 1923.

According to the undisputed evidence, the truth was undoubtedly as follows: On July 5, 1923, the insured consulted Dr. J. A. Shields, complaining of a cough, weakness, and indigestion. Dr. Shields made a thorough physical examination of the insured’s chest, and, finding unmistakable “sounds” of infection of his lungs at that time, prescribed for the insured rest and fresh air, and advised him to stay in bed. Dr. Shields saw the insured professionally two or three times in July, 1923, and at one time took a specimen of his sputum and had it examined microscopically by-another physician, with the result that tubercular germs were found to be present. The insured applied for and obtained from the Odd Fellows lodge sick benefits, of which he received the first payment on July 12, 1923. He was thereafter paid such benefits “for every week” until his death. The policy was issued on the 18th of August, 1923, on the faith of the representations contained in the application. On January 5, 1924, the insured was “bedridden,” and on March 16, 1924, he died from pulmonary tuberculosis.

The materiality of the above representations, especially as to the insured’s not' having consulted a physician, can not be doubted, for it appears, as a matter of law, that such statements do influence the action of the prudent insurer. They are among the matters upon which he rests his decision whether to accept the risk, and, if so, at what rate. Moreover, in the instant case, the probable consequences resulting from the false statements are somewhat magnified, when considered in connection with the undisputed testimony that the insured had been treated by a physician but a short while preceding his application, and that this physician, in his study of the case as then presented to him, found the patient to be suffering from pulmonary tuberculosis. If the insured had answered that Dr. Shields had been treating him for a cough, weakness, and indigestion within the past month, and that he was receiving sick benefits from the lodge, these facts would at least have put the insurer on inquiry, and it can hardly be doubted that the insurer would have been influenced to reject the risk on discovering the facts to which such inquiry would have led. “A material representation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.” Empire Life Ins. Co. v. Jones, 14 Ga. App. 647 (2) (82 S. E. 62); Lee v. Metropolitan Life Ins. Co., 158 Ga. 517 (2) (123 S. E. 737). It is inconceivable that the insured could have forgotten his sickness and treatment in so short a time. In Metropolitan Life Ins. Co. v. Shaw, 30 Ga. App. 97, 99 (117 S. E. 106), Judge Luke, speaking for this court, said: “The question as to attending physicians was not an idle one. . . Shaw’s representation in his application that he had not been under the care of any physician within two years prior to the date of his application was fraudulent, material, and made to induce the acceptance of the risk.” See also Puckett v. Metropolitan Life Ins. Co., 32 Ga. App. 263 (122 S. E. 791). The two last cases are very similar in their facts to the ease at bar, and would seem to be controlling. In Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 (134 S. E. 804), this court held: “Where an application for a policy of insurance is not attached thereto or referred to therein, it is not to be regarded as a part of the contract, and in such a case material statements or representations made by way of application will not void the policy, unless they be -not only false but also fraudulent.” The rule as thus stated has no application, however, to fraternal beneficiary associations. Fraternal Life Asso. v. Evans, 140 Ga. 284 (78 S. E. 915); Supreme Ruling of Fraternal Mystic Circle v. Blackshear, 13 Ga. App. 329 (79 S. E. 210); Sovereign Camp of Woodmen of World v. Keen, 16 Ga. App. 703 (4) (86 S. E. 88). It therefore was not necessary for the defendant association in this case to show actual moral fraud, although the application may not have been attached to the certificate. Compare Park’s Code, § 2564 (x); Sovereign Camp v. Beard, 26 Ga. App. 130 (3). Any material misrepresentation whereby the nature or extent or character of the risk was changed avoided the certificate, whether the statement was made in good faith or wilfully or fraudulently. Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (47 S. E. 940); Lee v. Metropolitan Life Ins. Co., supra. The evidence having conclusively established the alleged defense of material misrepresentations, the plaintiff, under the law, should not have recovered. It follows that the court erred in not granting a new trial. Since the above ruling appears to be controlling, it is unnecessary to decide other questions made in the record and argued in the briefs.

Judgment reversed.

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


text:
    17639.
    FURNEY et al. v. TOWER.
    1. “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose arid prevent the same; .and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff’s attorney is'the offender.” Civil Code (1910), § 4957. In the instant case it appears that the improper remarks made by counsel for the plaintiff in the hearing of the jury were subsequently withdrawn by him, and that the court properly instructed the jury that the remarks were improper, and that they should not be influenced thereby, but should be governed by the law as given them in charge by the court and applied to the facts of the case. It can not be said that the failure of the court to declare a mistrial was such abuse of discretion as requires the grant of a new trial. R.. & D. Railroad Go. v. Mitohell, 92 Ga. 78 (2) (18-S. E. 290) ; Solmes v. Stale, 21 Ga. App. 150 (94 S. E. 69) ; Garrett v. State, 21 Ga. App. 801 (8) (95 S. E. 301); Georgia Life Ins. Go. v. Sanvey, 143 -Ga. 786 (3) (85 S. E. 1036).
    2. The general rule that the master is liable for the acts of his servants when done within the scope of their employment, whether the act is wilful or otherwise, is modified, as to railway cases, by section 2780 of the Civil Code (1910), which provides as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary care and diligence, the presumption in all cases being against the company.” See also Smith v. Savannah, Florida & Western Ry. Co., 100 Qa. 95 (27 S. E. 725). It thus follows that a railroad company is liable for “damage done by any person in the employment and service of such company,” and in the scope of the company’s business, irrespective of whether the act done came within the scope of the servant’s particular employment, “unless the company shall make it appear that their agents have exercised all ordinary care and diligence, the presumption in all cases being against the company.” Moreover, in the instant case, it being admitted by the answer of the defendants that the servant was employed by the railway company as a detective and special officer, and that it was his duty to patrol the yards of the defendant company and to exclude and remove persons from the yards and properties of the defendant company, it follows that the alleged tort was committed by the servant while in performance of the particular duty of his employment.

      Appeal and Error, 4 C. J. p. 691, n. 86; p. 958, n. 80; p. 959, n. 81, 82; p. 1029, n. 30.
    Damages, 17 C. J. p. 727, n. 2; p. 1075, n. 99.
    Master and Servant, 39 C. J. p. 1273, n. 96; p. 1287, n. 33; p. 1359, n. 50; p. 1365, n. 44; p. 1366, n. 47.
    New Trial, 29 Cye. p. 776, n. 27; p. 824, n. 41; p. 827, n. 45; p. 942, n. 95.

      (а) The court, therefore, did not err in charging the jury that “the master is liable for the torts of the servant within the scope of the master’s business, whether such torts be negligent or wilful.”
    (б) Nor was the charge of the court, to the effect that “where the master instructs a servant to do a lawful act, and the servant, while engaged in the master’s business and intending to do the act authorized, is reckless in the performance of the act and inflicts injury on another, the master is liable,” erroneous for the reason that the evidence failed to show any instruction to the servant to do the acts complained of. .Southern Railway Co. v. James, 118 Ga. 340 (45 S. E. 303, 63 L. R. A. 257).
    (c) Nor was such charge erroneous for the reason that it deprived the defendant of the defense that the company would not be liable if the act of the servant was, under the circumstances, justifiable.
    3. The charge of the court on the question of damages for permanent injuries contained the inapt statement that “the jury are not restricted to any fixed rule.” Section 4502 of the Civil Code of 1910 provides that “damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money.” It is in the application of this rule that it is impossible to prescribe a mathematical formula by which the amount of compensation for the injury done can be measured. The expression in the charge complained of can not reasonably be considered to have been harmful or misleading, since the court, in charging the jury how the amount of damages for permanent injuries might be ascertained, clearly indicated that compensation for the injury done was what they might award. In the charge to them in this connection they were elaborately instructed upon the various contingencies which might enter into the calculation of the loss suffered by the plaintiff, including various circumstances which might be considered as resulting in a diminution of the future income of the plaintiff. They were charged that “in estimating damages, a proper allowance and deduction should' be made in favor of the defendant, or defendants, for any diminution in income from labor which would have resulted, in your opinion, from any of these causes.” The court also correctly charged the rule for reducing the amount of gross damages to its present cash value.

      4. The charge of the court correctly instructed the jury with reference to a recovery for pain and suffering and for the plaintiff’s lost time; and the failure to go further and give additional instructions, as to the measure of damages for temporary injuries in the event they might be found likely to continue for an additional limited time, was not harmful to the defendants, since any failure to charge that a recovery might be authorized for future temporary injuries could militate only against the interests of the plaintiff.
    5. The evidence, while conflicting, authorizes the verdict, and the verdict can not be set aside upon the general grounds of the motion for a new trial.
    Decided April 16, 1927.
    Damages; from Floyd superior court — Judge Maddox. August 2, 1926.
    Application for certiorari was made to the Supreme Court.

      Harper Hamilton, Maddox, Matthews & Owens, for plaintiffs in error.

      Denny & Wright, contra.
   Jenkins, P. J.

The facts are set forth in the former report of this case (34 Ga. App. 739, 131 S. E. 177), where a verdict in favor of the plaintiff for $5,000 was set aside.

During the argument of the instant case the following statement was made to the court, by counsel for the plaintiff^ in the presence of the jury: “If your honor please, this case has been to the Court of Appeals, and, by the decision, it is seen that the evidence "and findings of the jury were approved in all particulars and the decision reversed on technical grounds, and I am asking this jury to find another verdict for the plaintiff in this case.” Immediately upon this statement counsel for the defendant objected thereto and moved the court to declare a mistrial. The trial judge sent the jury to their room, and heard argument on the motion for a mistrial until late in the afternoon, and then stated that he would consider the matter over-night and would announce his decision the following morning. The jury were then permitted to disperse, and on the following morning the judge announced that he declined to grant the motion for a mistrial, and instructed the jury ,as follows: “Gentlemen of the jury, on yesterday afternoon, just before we recessed, the following language was used by counsel for the plaintiff in this case, or words to this effect: ‘ If your honor please, this ease has been to the Court of Appeals, and by the decision it is seen that the evidence and findings of the jury were approved in all particulars, and tbe decision was reversed on technical grounds, and I am asking this jury to find another verdict for the plaintiff in this case.' Counsel for plaintiff have withdrawn those remarks as being improper remarks to be made in the presence of the jury, and the court now instructs you that they were improper remarks, and that you must not be prejudiced or biased in any way, shape, form, or fashion by those remarks, but should disregard them completely. In the trial of this case, whatever may have occurred in a former trial of it, you have nothing to do with that. You are trying the case now; the law of this case will be given you in charge by the judge, that you may apply it to the facts, and you are bound by that under your oaths, whether right or wrong. The evidence in this case might be entirely different, or different in material particulars, to the evidence on a former trial, and, as stated, what may have happened then, as to any former trial of this ease or the result of it, you are not concerned in any way.”

The trial proceeded, resulting in a verdict for the plaintiff in the sum of $2,500; and exception is now taken to the overruling of a motion for new trial filed by the defendants.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17642.
    Moore, administratrix, v. Collins.
    Appeal and Error, 4 C. J. p. 650, n. 37; p. 651, n. 40.
    Landlord and Tenant, 35 C. J. p. 959, n. 43; p. 1247, n. 99; p. 1248, n. 3; 36 C. J. p. 396, n. 2; p. 637, n. 1; p. 640, n. 75; p. 669, n. 17 New.
    New Trial, 29 Cyc. p. 818, n. 30,
   Bell, J.

1. Where an owner of premises procures from a subtenant a writing whereby the subtenant agrees “to rent said premises” from the owner at a stipulated monthly rental from a day named, which exceeds the rent promised by the original tenant, and where thereafter the party in possession executing such agreement remains in possession, - paying the rentals as stipulated in the writing, which rentals the owner accepts, the relation of landlord and tenant exists between the owner and the other party from the date of the execution of the agreement. McConnell v. East Point Land Co., 100 Ga. 129 (28 S. E. 80); Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178); Mendel v. Barrett, 32 Ga. App. 581 (124 S. E. 107); Weed v. Lindsay, 88 Ga. 686 (15 S. E. 836).

2. In a proceeding by the owner of premises to dispossess a tenant under the provisions of the Civil Code (1910), §§ 5385-9, for nonpayment of rent when due, where the landlord has not waived a “strict adherence to the tei’ms of the lease contract” (Mahoney v. McKenzie, 27 Ga. App. 245 (2), 107 S. E. 775), it is not essential that the plaintiff should prove a demand for payment of the rent prior to the institution of the proceeding. Hicks v. Beacham, 131 Ga. 89 (62 S. E. 45); Carter v. Sutton, 147 Ga. 496 (3) (94 S. E. 760); Huff v. Markham, 70 Ga. 284 (2); Talley v. Mitchell, 138 Ga. 392 (4) (75 S. E. 465).

Decided April 16, 1927.

Eviction; from Evans superior court — Judge Strange. ,July-17, 1926. ■

John W. Sheppard, A. S. Way, for plaintiffs.

S. T. Brewton, P. M. Anderson, for defendant.

3. Nor is it necessary to prove a demand for the possession of the premises where it appears that tne demand, if made, would have been refused. The defendant in this case having testified, “If he [the owner] had demanded possession, I wouldn’t have given it up,” it is immaterial whether or not such demand was made. Werner v. Footman, 54 Ga. 128 (2, 5); Ballard v. Daniel, 18 Ga. App. 449 (2) (89 S. E. 603); 36 C. J. 396.

4. Although the defendant went into possession of the premises as a subtenant of the original tenant, he could not, as against the owner, attorn to the original tenant after the execution of the writing above referred to and after the owner had elected to hold him as tenant. New v. Quinn, 31 Ga. App. 102 (119 S. E. 457), and cit.

5. Applying the above rulings to the undisputed evidence, the verdict in favor of the defendant that he should not be evicted was contrary to law, and the plaintiff was entitled to a new trial.

6. In eviction proceedings against a tenant under the Civil Code (1910), §§ 5385-9, where the tenant files a counter-affidavit and bond, he may be charged with double rent, or double the rental value of the property, as the case may be (see Stanley v. Stembridge, 140 Ga. 750 (4, 5), 79 S. E. 842), from the date of the demand for the premises, or, if such date is not shown, from the date of the issuance of the dispossessory warrant, provided the plaintiff is entitled to prevail in such case. Crider v. Hedden, 26 Ga. App. 737 (107 S. E. 345); Hindman v. Raper, 143 Ga. 643 (2) (85 S. E. 843).

(a) Under the facts appearing, the judge erred in so charging the jury as to imply that the plaintiff was seeking to recover double rent for one month only, and apparently to limit the plaintiff’s right to such recovery. However, in view of the ruling in the preceding paragraph, it is not necessary to decide whether such error in the .charge would in itself be ground for a new trial, the jury having found unqualifiedly in favor of the defendant. Howard v. Ga. Ry. & Power Co., 35 Ga. App. 273 (8) (133 S. E. 57).

7. The court erred in refusing the plaintiff’s motion for a new trial.

Judgment reversed.

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


text:
    17643.
    WINDER NATIONAL BANK, administrator, v. ÆTNA LIFE INSURANCE COMPANY.
    1. Where the holder of a policy of life insurance has by its terms a vested contract right to reinstatement, conditioned only upon payment of arrears of premiums and advances made on the policy, 'with interest, and “upon evidence of insurability satisfactory to the company” (Borne Industrial Ins. Co. v. Eidson, 142 Ga. 253, 82 S. E. 641), such vested right can not be impaired or limited by subsequent conditions contained in the application for reinstatement furnished by the insurer.
    2. Where a policy of insurance provides that it may be reinstated within iive years after default in any premium payment, upon evidence of insurability satisfactory to the company and by payment of arrears of premiums, with interest at the rate of six per cent, per annum, and by payment or readjustment of whatever indebtedness to the company existed on the policy at the date of default, with interest from that date, the reinstatement, when thus effected, revives the original contract and relates back to the date of default. In such a “reinstatement of a lapsed policy, no statement of intermediate changes need be made unless required.” 1 May on-Insurance (4th ed.), § 190, p. 387. Thus, when the policy contains no provision that the insured should be in sound health on delivery of the reinstatement receipt, or on payment of the arrears, such as might cover any unsoundness of health arising between the date of the application for reinstatement and the acceptance of such application (National Life &e. Ins. Go. v. Martin, 35 Ga. App. 1, 2 (132 S. E. 120) ; Modern Woodmen of America v. Atkinson, 153 Ky. 527 (155 S. W. 1135) ; Priest v. Kansas City Life Ins. Co., 116 Kan. 421 (227 Pae. 538) ; Eairfleld v. Union Life Ins. Co., 196 111. App. 7, 15), the fact that the insured did not, of his own volition, inform the company of a change in his health between the date of the application for reinstatement and me acceptance of the application and of the arrears was not a fraud upon the company which would vitiate the reinstatement; nor would such a change in health ipso facto avoid the policy or render the reinstatement ineffectual. New York Life Ins. Co. v. Moats, 207 Eed. 481; Insurance Co. *. Higginbotham, 95 U. S. 380, 383 (24 L. ed. 499). The rule is that where the intention of the parties is that the contract of insurance, or the contract for reinstatement of insurance, shall relate back to the date of the application, or to the date of default, a change in the insurable status of the applicant after the application for insurance, or for reinstatement of insurance, can not vitiate the contract when actually consummated. In such cases the doctrine of continuing representation is eliminated by the intention of the parties as expressed by their contract. 1 Joyce on Insurance, § 97e. In the instant ease, since the evidence of insurability as furnished by the applicant for reinstatement was satisfactory to the com- ■ pany, its acceptance of the application for reinstatement and its aeceptanee of tlie arrears of premiums and loans caused the original contract of insurance to become reinstated from the date of default. It follows that the court erred in directing a verdict for the defendant on the theory that the contract for reinstatement had never become effective.

      Appeal and Error, 3 C. J. p. 433, n. 7; 4 C. J. p. 650, n. 37.
    Insurance, 32 G. J. p. 1152-, n. 94, 95; p. 1155, n. 5.
    Life Insurance, 37 C. J. p. 496, n. 13; p. 497, n. 22; p. 498, n. 30, 40 New; p. 502, n. 30.

      3. The above ruling being controlling upon the question of reinstatement, it is unnecessary to deal with the various exceptions relating to that proposition. No adjudication having been made with reference to attorney’s fees or-upon the question of double indemnity under the terms of the policy, the issues relating to these questions are not- here considered.
    Decided April 16, 1927.
    Complaint on life policy; from Barrow superior court — Judge W. L. Hodges presiding. July 27, 1926.
    Application for certiorari was made to the Supreme Court.

      Rollin H. Kimball, John B. Gamble, for plaintiff.

      Green & Michael, G. A. Johns, for defendant.
   Jenkins, P. J.

Oscar L. Casey held three policies of life insurance in the ¿Etna Life Insurance Company, all of which had lapsed for nonpayment of premiums, and each of which contained the following provision: “Within five years after default in any premium payment, if this policy has not been surrendered it may be reinstated upon evidence of insurability satisfactory to the company, and by payment of arrears of premiums with interest at the rate of six per cent, per annum, and by payment or reinstatement of whatever indebtedness to the company existed hereon at the date of default with interest from that date.” On May 31, 1922, Casey applied for reinstatement of these policies, signing an application for reinstatement which contained the following provision: “I further agree that said contract shall not be considered reinstated by reason of any cash paid or settlement made in connection with this application unless this application is approved for reinstatement by an executive officer of the company at its home office, and the payment of the full amount of all unpaid premiums and interest made within thirty-one days from the date of the company’s reinstatement receipt and before said receipt properly signed by an executive officer is actually delivered to me, and then on the express condition that I am in sound health on the date of said delivery, which I .expressly represent myself to be by accepting said receipt.” At the time of the execution of the application for reinstatement Casey was in sound health. On June 10, 1922, he was injured, receiving-a blow from a plow-handie, from which, injury he developed complications which resulted in his death on August 6, 1922. The application for reinstatement was approved by the insurance company on July 14, 1922, and on July 29, 1922, payment of all arrears due under the policies was made by the Winder National Bank at the request of the wife of the insured, and accepted by the company. After the death of the insured the company tendered back to his administrator the sum paid, and it was refused. The administrator brought suit on the policies for the full value thereof, including the double indemnity provided in ease of death by accident, penalties, and attorney’s fees. On motion of counsel for the defendant the court directed a verdict for the defendant; to which action exception is taken.

With reference to the ruling made in the first division of the syllabus, counsel for the defendant contend that the provisions set forth in the application for reinstatement furnished by the insurance company were not contrary to the original policy, and did not add any new conditions, the argument being that the stipulation embodied in the application, to the effect that the applicant must be in sound health on the date the reinstatement receipt is delivered, is but a setting forth in detail of what is meant by the policy in providing that the applicant' must furnish evidence of insurability satisfactory to the company. We are unable to agree with counsel in this interpretation of the provisions contained in the policy itself. It is thoroughly well established that provisions in a policy of insurance must be construed against the company; and even were it conceded that the provision referred to is susceptible of more than one construction, “insurance policies are prepared and proposed by the insurers; and, where such a contract is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured.” State Mutual Life Ins. Co. v. Forrest, 19 Ga. App. 296 (91 S. E. 428). As will be seen from what is said in the second division of the syllabus, there are two outstanding lines or forms of insurance, one where the protection dates from the date of the issuance or delivery of the policy, and the other where it dates from the date of the application. In the instant ease the terms of the policy itself in no wise indicate that it was intended that protection should be resumed from the date when the application for reinstatement was accepted, but on the contrary it clearly appears that the original policy of insurance should be reinstated and the premiums paid from the time it became lapsed or suspended. Accordingly, if it had been intended to provide for any change in the condition of the insured between the date of the application for reinstatement and the time when acceptance of the reinstatement was effective, the policy itself should have so provided. There being nothing in the policy to indicate that the reinstatement should be effective only from the date when the reinstatement receipt was delivered, .such a provision as contained in the application sought to add a material new condition to the original contract. The insured having a vested contract right to reinstatement according to the terms of the policy itself, the rights there given him could not be subsequently impaired by such a provision in the application for reinstatement furnished by the company.

Judgment reversed.

Stephens and Bell, JJ., concur.