author: Broyles, C. J.

text:
    17300.
    Gibson v. The State.
    Decided August 4, 1926.
   Broyles, C. J.

“After a grand jury has returned into court a true bill of indictment, and the same has been entered on the minutes of the superior court by its clerk, the court obtains jurisdiction of the case, and the grand jury is without authority, at the same term of the court, to recall the true bill, erase the entry of ‘true bill,’ and make an entry of ‘no bill’ on the indictment.” Gibson v. State, 162 Ga. (134 S. E. 326). Under this ruling and the facts of this case the trial court properly directed a verdict against the plea in bar filed by the accused.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.

Assault with intent to murder; from Washington superior court —Judge Hardeman. March 5, 1926.

M. L. Gross, Evans & Evans, for plaintiff in error.

Walter F. Grey, solicitor-general, A. R. Wright, contra.


source: Caselaw Access Project

license: Public Domain

text:
    17441. 17442.
    Cloud v. The State. Gaillard v. The State.
    Burglary, 9 C. J. p. 1075, n. 13.
    Decided August 4, 1926.
    Burglary; from Hall superior court—Judge J. B. Jones. May 6, 1926.

      8. M. Ledford, G. F. Kelley, for plaintiff in error.

      Robert McMillan, solicitor-general, Pearce Matthews, contra.
   Broyles, C. J.

Cloud and Gaillard were jointly indicted for burglary, and were convicted. Their conviction was authorized by the evidence, and in neither case does the amendment to the motion for a new trial show cause for a reversal of the judgment overruling the motion.

Judgments affirmed.

Luke and Bloodioorlh, ./</., concur,


author: Luke, J.

text:
    17443.
    Southern v. The State.
    Larceny, 36 C. J. p. 899, n. 34.
    Decided August 4, 1926.
    Larceny of automobile; from Gordon superior court—Judge Tarver. April 19, 1926.

      Joseph M. Lang, for plaintiff in error.

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

The conviction of the offense of larceny was amply authorized by the evidence. The special assignments of error, complaining of the court’s refusal to continue his ease and upon the court’s rulings upon the admissibility of evidence, are without merit. The plaintiff in error has had a legal trial, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodioorlh, J., concur.


author: Blood-worth, J.

text:
    17444.
    Collins v. The State.
    Criminal Law, 16 C. J. p. 1326, n. 81.
    Decided August 4, 1926.
    Making intoxicating liquor; from Campbell superior court— Judge Hutcheson. May 1, 1926.

      Lowndes Calhoun, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
   Blood-worth, J.

This case is here on exceptions to the refusal of the judge to set aside a judgment of the superior court. The record shows that the motion to set aside was made in vacation. The principle announced in Davis v. Bennett, 158 Ga. 368 (123 S. E. 11), and cases cited therein, is controlling in this case. See Hill v. First National Bank of Reynolds, 30 Ga. App. 593 (118 S. E. 593).

Judgment affirmed.

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


author: Broxles, C. J.

text:
    17445.
    Brown v. The State.
    Criminal Law, 16 C. J. p. 1114, n. 41.
    Decided August 4, 1926.
   Broxles, C. J.

Where a jury in a criminal case bring in a written verdict of “not guilty,” and the verdict is received and published (a poll of the jury being waived by both parties) but not recorded, and the accused is dismissed by the court and told that he can go, whereupon he leaves the court-house, but where, before the jury have left the jury-box, the court is informed by them, in substance, that they had agreed upon a verdict of “guilty” against the accused, but had inadvertently written it “not guilty,” and where thereupon immediately, by order of the court, the accused is brought back into the court-room, and there in his presence and in the presence of his counsel the court instructs the jury to return to their room for further deliberation in the case, and where the jury, after doing so, return a verdict of guilty, and where each and every juror, upon a poll of the jury, answers that the verdict of guilty is his verdict (the polling being done over the objections of the accused/ and where the verdict of guilty is published and recorded and judgment thereon entered up and sentence passed, and where at the same terra of the court the accused files a motion to arrest the judgment, upon the ground that the verdict of guilty and all orders and judgments of the court based thereon are illegal and void, for the reason that he has been acquitted and released of the same charge by a previous verdict of the same jury, held, that under the principle of the decision in Groves v. State, 162 Ga. 161 (132 S. E. 769), the denial of the motion in arrest of judgment is not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Carrying concealed weapon; from city court of Douglas—Judge Crawley presiding. April 17, 1926.

Ghastain & Henson, for plaintiff in error.


author: Beoodworth,

text:
    17457.
    Lester v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 70.
    Decided August 4, 1926.
    Accusation of unlicensed conduct of business as emigrant agent; from city court of Gray—Judge Barron. May 29, 1926.

      R. D. Feagin, G. A. Glawson, for plaintiff in error.

      Guy L. Anderson, solicitor, J. B. Jackson, contra.
   Beoodworth,

J. Under the principles announced in Varner v. State, 110 Ga. 595 (36 S. E. 93), and Chambers v. State, 23 Ga. App. 1 (97 S. E. 274), and the eases cited therein, the evidence failed to show the guilt of the accused, and a new trial should have been granted.

Judgment reversed.

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


author: Beoyi.es, C. J.

text:
    17465.
    Finklin v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided August 4, 1926.
    Involuntary manslaughter; from Chatham superior court-judge Meldrim. April 23, 1926.

      W. H. Bedgood, for plaintiff in error.

      Walter G. Hartridge, solicitor-general, contra.
   Beoyi.es, C. J.

The motion for a new trial was based upon the usual general grounds only. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    17466.
    Lacy v. The State.
    Certiorari, 11 C. J. p. 158, n. 85.
    Decided August 4, 1926.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. May 31, 1926.

      L. E. Foster, for plaintiff in error.

      Roy Dorsey, solicitor, John A. BoyTcin, solicitor-generalj J. IF. LeQraw, contra.
   Luke, J.

Lacy was convicted of violating a criminal statute and attempted to certiorari his case to the superior court. The judge of the superior court properly denied the petition for certiorari. Lacy had a legal trial, and a conviction was fully authorized.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


author: Bloodwoetii, J.

text:
    17471.
    Willis v. The State.
    Criminal Law, 16 C. J. p. 1059, n. 39; p. 1180, n. 74; 17 O. J. p. 233, n. 83.
    Decided August 4, 1926.
    Assault and battery; from Schley superior court—Judge Little-john. May 17, 1926.

      J. F. Earl, J. A. Eixon, for plaintiff in error.

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

1. The discretion of the court was not abused when the motion to continue was overruled.

2. The defendant’s conviction was not dependent entirely upon circumstantial evidence. The trial judge did not err, in the absence of a proper written request, in omitting to charge on circumstantial evidence.

3. There is no merit in either of the other two special grounds of the motion for a new trial.

4. There was ample evidence to support the verdict, and the motion for a now trial was properly overruled.

Judgment affirmed.

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


author: Bkoyles, C. J.

text:
    17472.
    Griggs v. The State.
    Criminal Laxv, 16 O. J. p. 497, n. 23 Nexv; p. 751, n. 91 Nexv; p. 782, n. 23; 17 C. J. p. 231, n. 67, 68.
    intoxicating Liquors, 33 C. J. p. 773, n. 92.
    Decided August 4, 1926.
    Selling- intoxicating liquor; from city court of LaGrange— Judge Tuggle. May 18, 1926.
   Bkoyles, C. J.

1. Upon the trial of one charged with selling whisky, the testimony of a witness for the State that he bought a pint of liquor from the accused, and that the liquor loas whisky, w.as not inadmissible for the reason that the pint of liquor had been destroyed and could not be produced as evidence before the jury.

2. The act of the General Assembly of Georgia, approved July 29, 1925 (Ga. L. 1925, p. 435, secs. 2, 3), provides as follows: “It shall be the duty of the judge of the city court of LaGrange during the trial of criminal cases in said court to call for trial said criminal cases in the order that same appear on the criminal docket of said city court. The said judge of said court shall call for trial first, first cases appearing on the said criminal docket and shall then proceed as long as said court continues to call for trial cases in the order that same appear upon said docket. . . When the said judge calls the cases for trial in the manner above referred to, it shall be the duty of the said judge to require ' an announcement of both the State and the defendant, and if a motion to continue is to be made hy either side, he shall require same made then, otherwise the cases shall proceed to trial.” It appears from the record in the instant case that when it was called for trial there was another case pending against the defendant, which had been entered upon the criminal docket of the court before the instant ease had been docketed. The accused declared that he was not ready for trial in the instant case, and objected to being tried in that ease until he had been tried in the case first appearing upon the docket, insisting that under the law the court had no authority to call the instant case until the case first upon the docket had been called and disposed of. The solicitor of the city court stated that he xvas not ready to try the case first docketed, because one of his witnesses xvas absent. Counsel for the accxxsed then stated, in answer to a question from the court, that he had no reason for not being ready for trial in the instant case, except the reason that under the laxv the case first appearing upon the docket should be called first. The court overruled the objections of the accused, passed the ease first docketed, and placed the accused on trial in the instant ease. All of this took place before issue was joined. Held, that the statement of the solicitor of the city court, that he xxras not ready to try the ease first docketed, because of the absence of one of his xvit- - nesses, was in effect a motion to continue the case; and this court can not hold, as a matter of laxx1', that the trial court erred in passing' that case and in placing the accused upon trial in the instant case. Turner v. State, 25 Ga, 146.

3. The x^erdiet xvas amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.

L. B. WyaU, M (i. Mooty, for plaintiff in error.

L. L. Meadors, solicitor, contra. .


text:
    17474.
    Boss v. Loganville Banking Company.
    Appeal and Error, 3 C. J. p. 1207, n. 9.
    Decided August 4, 1926.
    Affidavit of illegality; from Walton superior court—Judge Fort-son. April 14, 1926.

      Orrin Roberts, for plaintiff in error. J. H. Fellcer, contra.
   Luke, J.

It appearing that the writ of error in this case was not served as is required by law, the same must be and hereby is

Dismissed.

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


author: Bloodworth, J.

text:
    17480.
    Jeter v. The State.
    Criminal Law, 17 C. J. p. 121, n. 74; p. 147, n. 67 New.
    Decided August 4, 1926.
    Adultery and fornication; from Decatur superior court—Judge Custer. May 12, 1926.

      Ben Kwbo, A. B. Conger, for plaintiff in error.

      B. C. Gardner, solicitor-general, M. E. O’Neal, P. D. Rich, contra.
   Bloodworth, J.

It does not affirmatively appear from the bill of exceptions and the record that the bill of exceptions was tendered to the judge within 20 days of the judgment excepted to (the overruling of the motion for a new trial). The bill of exceptions, therefore, must be dismissed.

Writ of error dismissed.

Broyles, O. J., and Luhe, J., concur.


text:
    17481.
    Shaw v. The State.
    Intoxicating Liquors, 33 C. J. p. 731, n. 81.
   Broyles, C. J.

An accusation alleging that the accused did “unlawfully receive, have, control, and possess in said county intoxicating liquors and prohibited liquors” sufficiently states the offense, without further alleging that such liquors were not wine for sacramental purposes, or alcohol for mechanical or medicinal purposes. Martin v. State, 33 Ga. App. 590 (1, 2) (126 S. E. 908), and cit. Under this ruling the court properly overruled the motion in arrest of judgment.

Decided August 4, 1926.

Possessing intoxicating liquor; from city court of Polk county —Judge Tison. June 5, 1926.

M. B. Eubanks, for plaintiff in error.

J. A. Wright, solicitor, E. 8. Ault, contra.

Judgment affirmed.

Luke and Bl'oodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    17489.
    O’Neal v. The State.
    Courts, 15 C. J. p. 881, n. 27; p. 884, n. 59.
    Criminal Law, 16 C. J. p. 1269, n. 50 New.
    Decided August 4, 1926.
    Burglary; from Floyd superior court—Judge Maddox. May 18, 1926.

      Porteé' & Mébane, for plaintiff in error.

      J. P. Kelly, solicitor-general, contra.
   Bloodwoeth, J.

“After a general term of the superior court has been organized by the presiding judge and put into operation, the term continues until finally adjourned by the presiding judge or by the operation of some provision of law. In King v. Sears, 91 Ga. 577 (18 S. E. 830), and Hines v. McLellan, 117 Ga. 845 (45 S. E. 279), the court took a recess until a fixed date, and it was held that this did not end the term, but it continued in the interval; and this was the ruling in the former case, although in such interval a term of court was held in another county of the circuit.” Liverpool &c. Ins. Co. v. Peoples Bank, 143 Ga. 355 (85 S. E. 114). “Taking a recess is not the equivalent of an adjournment.” Hines v. McLellan, 117 Ga. 845 (supra). “While the term is still continuing the judge may pass orders in the exercise of his powers at chambers.” Morehead v. Allen, 131 Ga. 814 (63 S. E. 507); Luke v. Luke, 32 Ga. App. 738 (124 S. E. 556). Under the foregoing rulings, where a superior court was in regular session, and on a certain day the court, having finished with the jury business at noon, announced that the court would “take a recess until the next morning,” and during the afternoon a defendant pleaded guilty and was sentenced, this action of the court in receiving the pléa and sentencing the defendant was not “illegal, null and void,” either for the reason that “the court was without authority to perform said acts and sign said judgment in chambers,” or because “said plea was received and judgment and sentence entered during the afternoon in the chambers of said judge,” his chambers being in the court-house, and the solicitor-general, the clerk, and the sheriff being present. According to Bouvier’s Law Dictionary, “vacation” is “that period of time between the end of one term and beginning of another.”

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    17490.
    Pierce v. The State.
    Criminal Law, 17 C. J. p. 203, n. 93.
    Decided August 4, 1926.
    Burglary; from Floyd superior court—Judge Maddox, May 18, 1926.

      M. B. Súbanles, for plaintiff in error.
   Bboyles, C. J.

The sole assignment of error in the bill of exceptions in this case is upon the overruling of a motion in arrest of judgment. That motion was specified and sent up as part of the record. An inspection of the motion discloses that its only ground was based upon the alleged disqualification of the solicitor-general pro tem. to act in the case; and the bill of exceptions recites that this ground was expressly abandoned upon the hearing of the motion. Counsel for the plaintiff in error argues in his brief another ground why the motion should have been granted, but no such ground is contained in the motion in arrest of judgment as transmitted to this court. It follows that 'the judgment of the trial court denying the motion must be and is

Affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J. 1.

text:
    17496.
    Wynne v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 89, n. 65.
    Decided August 4, 1926.
    Arson; from Wilcox superior court—Judge Crum. May 18, 1926.

      11. S. Coates, Hal Lawson, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Luke, J. 1.

The single ground of the amendment to the motion for a new trial complains of the admission of certain documentary evidence. The ground, however, does not set forth the evidence either literally or in substance, nor is such evidence attached as an exhibit to the ground. It follows, under repeated rulings of this court and of the Supreme Court, that the ground is too defective to be considered by this court.

2. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

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


author: Bloodwobti-i, J.

text:
    17511.
    Sherman v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided August 4, 1926.
    Malicious mischief; from city court of Claxton—Judge Burroughs. May 27, 1926.
    P. M. Anderson, for plaintiff in error.

      8. T. Brewton, solicitor, H. M. Girardeau, contra.
   Bloodwobti-i, J.

The motion for a new trial contained the general grounds only. There is evidence to support the verdict.

Judgment affirmed,

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


text:
    17516.
    Lane v. The State.
    Criminal Law, 16 C. J. p. 1059, n. 39; p. 1180, n. 74.
    Decided August 4, 1926.
    Possessing intoxicating liquor; from Jenkins superior court-judge Strange. May 10, 1926.

      James A. Dixon, for plaintiff in error.

      John 0. Hollingsworth, solicitor-general, contra.
   Broyles, C. J.

1. The conviction of the accused did not depend wholly upon circumstantial evidence, and therefore the failure of the court to instruct the jury upon the law of circumstantial evidence was not error, in the absence of a timely and appropriate written request.

2. There is no merit in the remaining special ground of the motion for a new trial, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    17518.
    CONLEY v. THE STATE.
    1. The motion in arrest of judgment was properly overruled;
    2. Before a judgment in a criminal case should be arrested because of a defect in the indictment, the defect should be so material as to render the trial entirely nugatory.
    Criminal Law, 16 C. J. p. 1256, n. 94; p. 1258, n. 6.
    Decided August 4, 1926.
    'Shooting at another; from Gordon superior court—Judge Tarver. May 24, 1926.

      J. M. Lang, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bloodworth, J.

The accused was tried on an indictment which

charged him with assault with intent to murder, and alleged that he “with force and arms, unlawfully, feloniously, with malice aforethought and with a certain loaded pistol, the same being a weapon likely to produce death, in and upon one George Conley, a human being in the peace of said State then and there being, did make an assault with the intent the said George Conley to kill and murder, and with the said loaded pistol which he, the said Alex Conley, then and there had and held, did then and there unlawfully, feloniously, and with malice aforethought shoot at-with the intent aforesaid.” Upon the trial of the case the jury returned a verdict of guilty of shooting at another. A motion in arrest of judgment was made, on the ground that the indictment did not charge the offense of shooting at another. As against a motion in arrest of judgment the allegations in the indictment are sufficiently definite to sustain the verdict rendered. The defect in the indictment is not of such materiality, is not so substantial, as to render the trial entirely nugatory. Gazaway v. State, 9 Ga. App. 194 (70 S. E. 978). See Lanier v. State, 5 Ga. App. 472 (63 S. E. 536); Smith v. State, 14 Ga. App. 286 (80 S. E. 512); Johnson v. State, 29 Ga. App. 659 (116 S. E. 226).

Judgment affirmed.

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


author: Bell, J.

text:
    16984.
    Briesenick et al. v. Dimond.
    Appeal and Error, 4 O. J. p. 1032, n. 36; p. 1043, n. 45; p. 1044, n. 47.
    Damages, 17 O. J. p. 1061, n. 79; p. 1062, n. 84.
    Fraud, 27 O. J. p. 92, n. 60.
    Trial, 38 Cyc. p. 1610, n. 94; p. 1694, n. 58; p. 1696, n. 68; p. 1778, n. 73; p. 1779, n. 75, 76.
    Vendor and Purchaser, 39 Cyc. p. 1268, n. 66.
   Bell, J.

1. The evidence authorized the verdict in favor of the defendant. Briesenick v. Dimond, 33 Ga. App. 394 (2) (126 S. E. 306).

2. The court did not err in charging the jury as follows: “The defendant contends that the property was purchased by him and was sold to him by the plaintiffs as farming property for farming purposes.” This was a correct statement of one of the defendant’s contentions as made in his answer; and ordinarily it is not error to state the contentions of the parties as made by the pleadings. See White v. Knapp, 31 Ga. App. 344 (7 a) (120 S. E. 796); Ga. Ry. &c. Co. v. Simms, 33 Ga. App. 535 (5) (126 S. E. 850); Matthews v. Seaboard &c. Ry. Co., 17 Ga. App. 664 (87 S. E. 1097). Eurthermore, the evidence tended to show that false and fraudulent representations were made by the plaintiffs’ agent as to the suitability of the land for farming purposes, and that the defendant was induced thereby to make the purchase. It was, therefore, not “immaterial for what purpose the real property was bought and sold.”

3. Considered as a whole, the court’s charge did not allow the jury to find for the defendant in the absence of proof that the representations were fraudulent as well as false, the jury having been expressly instructed that if their “findings should not be that false and fraudulent representations were made to the defendant by the plaintiffs, then the defendant would not be entitled to an abatement in the purchase-price, and in that case the plaintiffs would be entitled to recover the full amount sued for, principal, interest, and attorney’s fees.” See Wilson v. Small, 28 Ga. App. 587, 592 (113 S. E. 238); City Council of Augusta v. Tharpe, 113 Ga. 152 (2) (38 S. E. 389). Nor was the charge error because it permitted the jury to return a verdict in favor of the defendant without finding that the defendant relied, and had the right to rely, upon the representations.

4. When the charge is construed in its entirety, it appears that the court submitted the issue of fraud and damage only in relation to the land, exclusive of timber and of the personalty included in the sale. Hence the charge was not error upon the ground that it was contrary to an assurance given by the judge, in response to a motion of the plaintiffs’ counsel to rule out certain testimony, “that he would not submit to the jury any question of abatement in behalf of the defendant on account” of the timber or of specified personalty. “It is not error requiring a new trial that the court omitted to charge the jury there could be no recovery for a certain element of damages' mentioned in the petition, on which there was no proof; no request to do so being made, and the judge in his charge restricting the jury in their investigation only to such damages as were covered by the evidence, and thus involved in the ease.” Henson v. Taylor, 108 Ga. 567 (5) (33 S. E. 911) ; Powell v. Augusta & Summerville R. Co., 77 Ga. 192 (12) (3 S. E. 757).

5. Where under the pleadings and the evidence unliquidated damages are recoverable, it is generally the duty of the court to charge the jury as to the measure thereof, whether requested to do so or not. Central of Ga. Ry. Co. v. Hughes, 127 Ga. 593 (56 S. E. 770) ; Central of Ga. Ry. Co. v. Madden, 135 Ga. 205 (7) (69 S. E. 165) ; A., B. & A. R. Co. v. Barnwell, 138 Ga. 569 (5) (75 S. E. 645) ; S. A. L. Ry. Co. v. Brewton, 150 Ga. 37 (2) (102 S. E. 439); Towson v. Horn, 160 Ga. 697 (3) (128 S. E. 801); O’Donnelly v. Stapler, 34 Ga. App. 637 (131 S. E. 91); Furney v. Tower, 34 Ga. App. 739 (6) (131 S. E. 177); Central of Ga. Ry. Co. v. Hill, 21 Ga. App. 231 (4) (94 S. E. 50). But failure to give such instruction will not be cause for a new trial, where it appears that the losing party was not harmed thereby. Furr v. Eddleman, 80 Ga. 660 (2) (7 S. E. 167) ; Mayor &c. of Griffin v. Johnson, 84 Ga. 279 (5), 282 (10 8. E. 719); Rome & Carrollton Construction Co. v. Jennings, 85 Ga. 444 (11 S. E. 839) ; Boswell v. Barn- hart, 96 Ga. 521 (3) (23 S. E. 414); Southeastern Express Co. v. Chambers, 33 Ga. App. 44 (125 S. E. 507) ; Tallulah Falls Ry. Co. v. Stribling, 20 Ga. App. 353 (4) (93 S. E. 161). And a general charge upon the subject is sufficient, in the absence of request, where the evidence discloses no “elements of special damage of a kind to require more detailed instructions.” Crown Cotton Mills v. McNally, 123 Ga. 35 (6) (51 S. E. 13).

6. Where a purchaser of land is damaged by reliance upon false and fraudulent representations of the vendor as to matters affecting the character and value of the property, the measure of damages is the difference between the value of the property at the time of the sale and what its value would have been if the representations had been true. James v. Elliott, 44 Ga. 237; Smith v. Kilpatrick, 79 Ga. 410 (3) (7 S. E. 258); Estes v. Odom, 91 Ga. 600 (5) (18 S. E. 355); Millirons v. Dillon, 100 Ga. 656 (2), 658 (28 S. E. 385) ; McCrary v. Pritchard, 119 Ga. 876 (7) (47 S. E. 341) ; Commercial City Bank v. Mitchell, 25 Ga. App. 837 (3 a) (105 S. E. 57) ; DeMent v. Rogers, 24 Ga. App. 438 (101 S. E. 197); George v. Hesse, 100 Tex. 44 (93 S. W. 107, 8 L. R. A. (N. 8.) 804, and note, 123 Am. St. R. 772, 15 Ann. Cas. 456) ; 27 C. J. 92, § 243, and cit.; 4 Sutherland, Damages (4th ed.), 4388.

7. While the court in the present ease did not instruct the jury directly and explicitly as to the measure of damages, the effect of the charge as a whole was to tell the jury that if the purchaser was damaged by the plaintiffs’ fraud as alleged, the measure of damages would be the difference between the purchase-price and the actual value of the land at the time of the sale, and to limit them to the application of this measure; and although, under the authorities cited above, the rule as given was incorrect, it was not prejudicial to the plaintiffs, in view of their sole contentions that the property was as represented and was of a value far in excess of the purchase-price. In the light of the • issues as developed by the evidence, the improper measure as referred to in the charge was more favorable to the plaintiffs than the true measure would have been. It follows that a new trial should not result because the jury were led to apply an erroneous measure of damages, or because the coru't failed to give them a correct and explicit instruction upon the subject.

(a) Furthermore, under the evidence and contentions of the defendant, the land was actually worth from $5000 to $12,000; and under the evidence and contentions of the plaintiffs, all representations made were true, and, being so, the land was worth from $24,000 to $30,000. The. defendant pleaded and the jury allowed an abatement in the sum of $4700. Thus, under the evidence and under the correct measure, the jury could have found damages in the defendant’s favor in a much larger sum if the same had been pleaded. While questions of value are peculiarly within the province of the jury, it is improbable that the verdict would have been more favorable to the plaintiffs if the court had instructed the jury accurately and more fully as to the measure of damages. An erroneous charge as the measure of damages may be cured by the reasonableness of the verdict returned. Boswell v. Barnhart, Southeastern Express Co. v. Chambers, supra.

Mortgage foreclosure; from Glynn, superior court—-Judge High-smith. October 1925.

Application for certiorari was made to the Supreme Court.

Conyers & Gowen, for plaintiffs.

A. H. Crovatt, Krauss & Strong, for defendant.

(5) Quajre: Is an assignment of error which complains that the court “failed to give the jury any measure of the damages or abatement to which the defendant would be entitled if the jury found that the defendant had been damaged” as alleged, sufficient to raise any question for decision, where the assignment states no rule or principle upon the subject which it is claimed the court ought to have charged? Odum v. Rutledge, 16 Ga. App. 350 (3) (85 S. E. 361); Smith v. Fuller Loan Co., 23 Ga. App. 726 (99 S. E. 309) ; Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440) ; So. Ry. Co. v. Wessinger, 32 Ga. App. 551 (6) (124 S. E. 100).

8. The court did not err in refusing a new trial.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    16987.
    Macris et al. v. Tsipourses.
   Bell, J.

1. Exceptions to the answer of the trial judge in a certiorari case must specify the defects. “They must be so definite, apt, and certain that the magistrate may be able to understand the exact nature of the deficiency that he is called upon to supply.” Landrum v. Moss, 1 Ga. App. 216 (5) (57 S. E. 965). Some of the exceptions to the answer in this case were devoted exclusively to argument, or to a criticism of the judge’s motives and conduct in failing to answer differently. None of them wore sufficiently definite in pointing out the deficiencies which the petitioner in certiorari sought to have remedied. The court did not err in striking the exceptions. Compare Ellis v. Jones, 144 Ga. 120 (4) (86 S. E. 317); Perkins v. Morgan, 107 Ga. 835 (2) (33 S. E. 705) ; Royston v. Royston, 29 Ga. 82 (1).

2. The proffered amendment to the exceptions, having been disallowed, and not having been made by order a part of the record, could not be specified as such in the bill of exceptions; and having been brought to the attention of this court in no other way, it can not be considered. Sutherland v. Donovan, 34 Ga. App. 643 (130 S. E. 688).

3. A “so-called traverse of the answer, which on its face shows it to be really exceptions to the answer,” was properly stricken. Anthony v. Consolidated Film &c. Co., 18 Ga. App. 411 (2) (89 S. E. 428).

4. An incomplete answer to a writ of certiorari can be perfected only by exceptions taken thereto in the manner prescribed by the Civil Code (1910), § 5196. Ford v. Toomer, 116 Ga. 795 (43 S. E. 45) ; Peeples v. Tygart, 6 Ga. App. 409 (65 S. E. 167). The answer having failed to verify the only assignments of error on which the judge of the superior ' court would have been authorized to sustain the writ, and the exceptions and the traverse having been rightly stricken, there was no error in refusing a subsequent “oral motion to strike tlie answer and to require the respondent to reanswer,” nor in dismissing tlie petition. Thomas v. State, 7 Ga. App. 637 (4) (67 S. E. 894) ; Pitts v. Simpson Grocery Co., 15 Ga. App. 617 (83 S. E. 1102).

Decided July 20, 1926.

Rehearing denied September 20, 1926.

Certiorari; from Fulton superior court—Judge Bell. October 19, 1925.

Morris Maclcs, for plaintiffs in error.

John W. Crenshaw, contra.

5. Furthermore, where the only assignments of error on which (if verified) the superior court would have been authorized to sustain the certiorari related to matters dehors the record, and were answered by the trial judge with the statement that “respondent can not verify the truth of any of these paragraphs, because he does not recollect them sufficiently to make answer thereto,” such statement of the trial judge is not subject to traverse, and “it is useless to sustain the exceptions to the answer and to require him to respond more fully. Where such an answer is filed, the judge of the superior court, upon the hearing of the certiorari, can do nothing but overrule the same. Colbert v. State, 118 Ga. 302, 305 (45 S. E. 403).” Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416) ; Hides v. Lindsey, 22 Ga. App. 674 (2) (97 S. E. 101) ; Smith v. Johnson, 31 Ga. App. 45 (119 S. E. 916). The rule would not be different in a civil case merely because the trial was stenographieally reported, where neither party had procured, and the petitioner in eer- • tiorari had declined to procure, the stenographer to transcribe his notes. In such case the trial judge could not be required to obtain such transcript or to have the notes read to him, at the cost of one or both of the parties, although, if he had seen fit, he might have done so. Ga. L. 1914, p. 181, § 5; Civil Code (1910), §§ 4984, 4985; Central Railroad Co. v. Robertson, 92 Ga. 741 (18 S. E. 986). The case of Bugg v. State, 13 Ga. App. 672, in which it was said that the judge might for himself require the notes of the official stenographer to be written out at the public expense, Was a (misdemeanor) criminal case, and the State, the bearer of the “public expense,” was a party. See Penal Code (1910), § 810. The court could not assess such cost against the public treasury in a civil case between private parties.

Judgment affirmed.

JenJeins, P. J., and Stephens, J., concur.


text:
    17050.
    MATHIS, administratrix, v. WESTERN & ATLANTIC RAILROAD.
    In the trial of this action, brought under the Federal employer’s liability act, to recover for the death of an alleged servant of the defendant railroad company, the evidence failed as a matter of law to establish the relation of master and servant as set forth in the petition. The court therefore committed no error in granting a nonsuit.
    Decided July 20, 1926.
    Adhered to on rehearing October 2, 1926.

      Action for damages; from Cobb superior court—Judge Blair. November 11, 1925.

      J. B. Mozley, Harwell, Pairman & Barrett, for plaintiff.

      Tye, Peeples & Tye, Morris, Hawhins & Wallace, for defendant.
   Bell, J.

The administratrix of the estate of Clyde Otis Mathis, deceased, brought suit under the Federal employer’s liability act against the Western & Atlantic Railroad, to recover for his death, alleged to have been caused by the negligence of the defendant’s agents and servants, the petition averring that at the time decedent was injured he was an employee of the defendant railroad, and that both he and the defendant were engaged in interstate commerce. The trial resulted in a nonsuit, and the case is here upon exceptions by the plaintiff to .review that judgment. Irrespective of other questions, we think the nonsuit was right, because the evidence failed as a matter of law to establish the relation of master and servant. The evidence showed that the decedent, at the 'time of receiving the injury which resulted in his death, was working as a substitute for one Boseman and at Bose-man’s instance, at Kennesaw, a station on the defendant’s line of railroad in Cobb county, Georgia. The defendant’s agent at this station was Ray Baldwin.. Besides the agent, the defendant employed there two or three other men, including Boseman. On the day of the decedent’s death, Boseman, for some reason not disclosed, desired to go to Atlanta, and had arranged with Mathis to take his place at the station. According to the petition, Mathis met his death under the following circumstances: he had left the station for the purpose ff delivering orders to the defendant’s servants in charge of an approaching train, “having in his hand a hoop-like device to which was attached the orders, which hoop-like device was to be handed up and caught upon the arm of the engineman and conductor.” As he neared the track for the purpose of delivering the orders he was attacked “with a spell of epilepsy and staggered and fell upon the track,” and the train ran over his body and killed him. One of the duties of Boseman was to deliver train orders, as Mathis was attempting to do at the time of his death.

On the question whether Mathis was a servant of the railroad, it is enough to examine a portion of the testimony of Boseman, as follows: “I went to work in January, 1923. Mr. Baldwin, the agent, employed me. I made application to Mr. Baldwin for work, by word of mouth. . . As to whether I recall the day that Clyde Mathis was killed at Kennesaw, I went down that morning to the depot. . . As to my seeing Clyde Otis Mathis there that morning, he might have been there when I went down there, but anyhow I called him and he was there, and I told him I would turn things over to him, and I went home to dress to get ready to go to Atlanta. As to my saying anything to Mr. Baldwin about Clyde Mathis that morning, I told him he was going to work for me. He told me it was all right. Mr. Baldwin he was there before I went home to dress. I left Clyde .Otis Mathis in my place. I mentioned to Mr. Baldwin the day before this date about getting off. I did not say about who I was going to put in my place. I asked him who to get, and he said to get anybody who could do the work. Clyde Otis Mathis had worked in my place before, a time or two, a short while—two or three hours. The same Mr. Baldwin was the depot agent then. Mr. Baldwin knew about him working there when he worked before. . . As to whether or not I left anybody in my place that day .but Clyde Mathis, my father after the accident happened. On that day, that morning when I left there, I left Clyde there. As to'when I first made application when I went to work there, I asked the agent if I could get a job there. The agent saw me; he asked would I take the job. I did not go to work the day I had the conversation with Mr. Baldwin. It was three or four days before I went to work. The agent did not tell me that he would have to submit it to the superintendent or general manager, and get authority. He told me he would have to submit it, and he would recommend me. Yes, the other boy wanted a leave of absence of 30 days; he was going to Atlanta to try out a job, and see if he liked that; and he said they would not give him leave of absence. And he asked me if I would take the job. As to whether he told me he would recommend me and they would take his recommendation, no, sir, he didn’t say anything like that. I do not remember him telling me anything about getting authority and sending it in to employ me. I didn’t tell you in your office this morning that I first went to the agent, Mr. Baldwin, and discussed it with him, and he told me he would have to send it in, and get authority, and whoever he recommended they would employ. I did tell you that since I got the job, it had to go through the superintendent, and any one he recommended was hardly ever turned down. I was working at a salary of so much per month,” paid by the railroad company. “Now at any time that I got this deceased, Clyde «Mathis, or any one else, to relieve me there, I paid them myself for doing that work. And at any other time that Clyde had worked a little while for me the railroad didn’t pay him. I paid him out of my pay-check. I hired him and paid him, to take my place and do my work. And that’s what I did on this particular day that he was killed; hired him and told him I would pay him out of my pay-check for this work. I told him I would pay him; nothing was said about the agent; whatever he charged I would pay him. And it was on that agreement between me and him that this deceased was working there that day. I stated I got my father to finish out the work that afternoon. I paid him. And if I got my brother or any one to take my place at any other time, or my father, I always paid whoever took my place. I made the arrangements to work in my place, and paid them out of my pay; they were working for me at that time. I went down to the depot that morning I spoke of, and Clyde wasn’t there. I swept the depot, as it was my duty to do so; and ‘then after I had cleaned up and got things straight there, Clyde Mathis, under his agreement with me, came down there to relieve me and to finish my day’s work while I went somewhere else, with the agreement between me and him that I would pay him for it. . . Well, a part of the time I left there, there wasn’t anything to be done, he was just there in case anything came up. As to whether or not I got Mr. Baldwin’s consent on this occasion for Clyde Mathis-to work for me, he said any one I could get to do the work, and I got Clyde. He knew I had Clyde and he didn’t object. As to why did I get his permission, well, I wouldn’t be off without asking him. On other occasions, when Clyde Mathis substituted for me as to whether or not I got Mr. Baldwin’s consent for him to substitute for me, it was always all right, any one that could do the work for me to put there. I say it was always all right with Mr. Baldwin if I got somebody that could do the work, if I paid them for it; that was all right with Mr. Baldwin. As to whether I mean to state when I got Clyde Mathis at other times to work a little while at the time I went to Mr. Baldwin and saw him about it, it was all right as I understood it if I got somebody that could do the work. I always asked him about being off, sometimes I would ask him who to get in my place, and he would say anybody that cculd do the work. It was always understood I paid for it. Of course the agent wasn’t going to pay for it. I do not know whether Mr. Baldwin had any authority to hire and employ on that railroad or not.” There was some testimony by Boseman and others that on the morning of the particular substitution, Mathis was seen sweeping the station platform, but it is clear that he was doing so under the instant arrangement with Boseman, and any inferences favorable to the plaintiff which might otherwise be drawn from the fact of such labor on the defendant’s premises will be controlled by the legitimate deductions from the testimony touching the facts and circumstances surrounding such arrangement. There was no testimony by Boseman or any other witness which could add materially to that of Boseman as quoted above.

The burden was on the plaintiff to prove that the relation of master and servant existed between the decedent and the railroad company on the occasion in question. The plaintiff insists (among other things) that since the evidence shows that the arrangement between Boseman and Mathis was made with the knowledge of Baldwin, the station agent, Mathis became in law a servant of the company, entitled to the same protection as the regular servant for whom he was substituting. This is to treat Baldwin as having the authority to consent to the arrangement on behalf of the company. This he could not have done in the absence of authority to employ labor. There is nothing in the evidence to show that any such authority had been conferred upon him by the railroad company, or that his duties were of such scope that the authority could be implied. If it had appeared that he emplojred Boseman, whom the company had undoubtedly treated as its servant, then it might have been inferred that he was empowered to employ Mathis. But Boseman’s testimony that Baldwin had not stated certain things with reference to “getting authority,” and as to the strength of Baldwin’s recommendations to the company, and that he, the witness, had not made certain extrajudicial statements to the attorney conducting the cross-examination, was entirely consistent with the positive and unequivocal testimony of this witness to the effect that, when he was negotiating for the position, Baldwin, told him, “that he would have to submit it and would recommend” him. This evidence was in regard to the res geste, and explained what actually occurred between Baldwin and Boseman. The evidence as a whole failed, as a matter of law, to show that Boseman’s contract of employment was made with the company through its agent Baldwin. See, in this connection, Evans v. Scofield Co., 120 Ga. 961 (48 S. E. 358).

The general scope of Baldwin’s duties are not shown, and only a few men were employed at the station. Besides this, we know merely that he was station agent and was an operator.

“The general effect of the decisions concerning employees whose functions relate to a circumscribed sphere of operations which place them for certain purposes in control of a small number of persons may be said to be that no presumption will be entertained of their possession of authority to hire subordinates, and that the questions whether their authority, supposing it to be conceded and established, was sufficiently extensive to enable them to bind their principals by the contract in question, are to be determined from the specific evidence introduced.” 1 Labatt’s Master & Ser.vant (2d ed.), 404. The authority to employ other servants for the company to perform such important duties as were required of Boseman could not be inferred from the mere fact that Baldwin was the agent in charge of the office. Southern Railway Co. v. Duke, 16 Ga. App. 673 (85 S. E. 974). In the case of Payne v. Rivers, 28 Ga. App. 28 (3) (110 S. E. 45), this court held that where a person is employed by a servant as his temporary substitute, with the express or implied knowledge of the master, or with the master’s subsequent ratification, he is to be considered as a servant for the time being, to the same extent as would be the person for whom he is substituting. But in that case it appeared not only that the substitution was made with the knowledge of the station agent, but that he had authority to employ other servants about the station. Hence that case is distinguishable from the case now under consideration. Notice to Baldwin was not notice to the master, except when it related to matters within the scope of his employment. In the absence of evidence, either direct or circumstantial, to show that Baldwin would have been authorized himself to employ Mathis, it could not be said that the company would be affected by his knowledge of the arrangement between Boseman and Mathis. Collins v. Crews, 3 Ga. App. 238 (4) (59 S. E. 727). If the evidence had shown a custom or practice of Boseman or other employees to substitute other persons in his place or their places, of such long standing that the knowledge and consent of the company might have been inferred, a question of fact would have been presented as to whether the substitute, in the particular instance, should be treated as the company’s servant. See Haluptzok v. Great Northern R. Co., 55 Minn. 446 (56 N. W. 144, 26 L. R. A. 739). But'it does not appear that Bose-man had ever obtained any substitute, excepting “a time or two, a short while—two or three hours,” prior to the transaction under investigation. This could not be taken as evidence of a practice ox custom continued for so long a time that the company probably knew of it. It is true, there is some suggestion in Bose-man’s testimony that he had on other occasions procured persons other than Mathis to take his place, but his testimony upon this point was hypothetical only. Anyway, there is nothing to indicate when, or how long prior to the occurrence immediately in question, any of the substitutions were made.

The station agent might, perhaps, have had the implied authority to employ additional help in an emergency rendering it necessary to do so to protect the company’s interests. Hollidge v. Duncan, 199 Mass. 121 (85 N. E. 186, 17 L. R. A. (N. S.) 982); B. & O. Railroad Co. v. Burtch, 263 U. S. 540 (44 Sup. Ct. 165, 68 L. ed. 433). But no emergency appears in the present case. So far as the evidence discloses, Boseman was not sick or forced by any circumstance to leave his post of duty. The so-called “emergency authority” should be limited to situations of actual emergency, so as not to infringe the master’s right to select such servants as he needs or chooses to employ. This right is an important one, involving, as it does, considerations relating to the character of the service required, the liability of the master for the servant’s negligence, and certain liabilities to the servant himself. In the instant case the person substituted was unfortunately afflicted with a serious malady. The company might have desired to inquire into the condition of the health of a person whom it was about to employ, and probably would not have engaged the services of one who was subject to spells of epilepsy. The circumstances appearing in the instant record illustrate the importance of the master’s right to determine who shall become his servant.

“To create the relation of master and servant there must be some contract or some act on the part of one person which expressly or impliedly recognizes another as his servant.” Atlanta & West Point R. Co. v. West, 121 Ga. 641 (49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179). “One who without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is” not a servant but “a mere volunteer.” Early v. Houser, 28 Ga. App. 24 (2) (109 S. E. 914). See also, in this connection, Cooper v. Lowery, 4 Ga. App. 120 (60 S. E. 1015); Central of Ga. Ry. Co. v. Mullins, 7 Ga. App. 381 (66 S. E. 1028); So. R. Co. v. Duke, 16 Ga. App. 673 (85 S. E. 974); Rhodes v. Ga. R. Co., 84 Ga. 320 (10 S. E. 922, 20 Am. St. R. 362). The case involves no question of ratification. Baldwin could not ratify that which he could not in the first place authorize. And it does not appear that Mathis ever did any service that was accepted by any one having authority from the company to ratify the arrangement under which he worked.

Irrespective of any question of estoppel (see Gulf Refining Co. v. Harris, 30 Ga. App. 240, 117 S. E. 274), the evidence in the record, in the absence of rebuttal, -might perhaps be sufficient to authorize a finding of the master and servant relation between the defendant and Mathis, if the matter was in issue between the defendant and a third person, whose knowledge of the facts necessary to establish the relation would presumably be inferior to that of either of the parties to the contract creating it, if it existed. But in the present case the plaintiff administratrix is in no better position as to the shifting of the burden of evidence than her intestate would be had he merely been injured and were himself suing. The action being predicated upon the theory that the decedent was the defendant’s servant, the plaintiff could not recover without showing the existence of the actual relation alleged, the plaintiff having the onus as to this issue. Postell v. Brunswick &c. R. Co., 112 Ga. 602 (37 S. E. 869).

Moreover, to hold that the evidence would authorize a finding that Mathis became a servant of the company would violate the principle of the law of agency that an agent ordinarily can not delegate his authority to another unless specially empowered to do so. Civil Code (1910), § 3571. Under the evidence, it does not appear that Baldwin ever undertook to employ Mathis as a servant of the company, the most that is shown by the evidence being that he consented for Boseman to employ any one that could do the work. Assuming, then, that the authority to employ, under given conditions, was conferred upon the station agent, Baldwin, he could not delegate this authority to the inferior agent, Bose-man, since it involved discretion and judgment, the exercise of which the company might never have been willing to entrust to Boseman.

It would be an extreme hardship to hold the company liable as the master of a person employed by one acting with no other authority than that conferred by the company’s station agent, who, even if himself authorized, was yet not empowered to delegate his authority to another.

The evidence failed to show that the decedent was the defendant’s employee. The nonsuit was right, under the evidence, and the judgment should be affirmed.

Judgment, affirmed.

Jenhins, P. J., concurs. Stephens, J., dissents.


text:
    17482.
    Davis v. The State.
    Decided August 4, 1926.
    Rehearing denied September 7, 1926.
    Assault with intent to murder; from Chatham superior court— Judge Meldrim. April 28, 1926.
    Application for certiorari was made to the Supreme Court.

      Robert L. Golding, E. Mercer Jordan, for plaintiff in error.

      Walter G. Eartridge, solicitor-general, contra.
   Luke, J.

The conviction of assault with intent to murder was fully authorized by the evidence, and had the approval of the trial judge. None of the special assignments of error (which complain of the court’s rulings upon the admissibility of testimony, and alleged errors in the charge of the court) require a reversal of the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloockoorth, J., eoneur..


author: Jenkins, P. J.

text:
    16986.
    Fulton Bakery Incorporated v. Williams.
    Decided September 14, 1926.
    Damages; from Fulton superior court—Judge Humphries. November 6, 1925.

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

      G. H. Cornwell, W. G. Munday, contra.
   Jenkins, P. J.

Under section 16 of the Georgia workmen’s compensation law, an employer who might be subject to the provisions of the act, but who elects not to operate thereunder, is deprived of the following defenses: (a) that the employee was negligent; (6) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risk of the injury. Thus, irrespective of whether or not the provision quoted would render the defendant liable even though the petition might show that the injury was caused by the negligence of the plaintiff (see Critchfield v. Aikin, 33 Ga. App. 668 (127 S. E. 816)), in the instant ease, as in the Critchfield case, the petition not only sets forth negligence on the part of the defendant in failing to comply with its duty to furnish the plaintiff with reasonably safe and suitable appliances for carrying on the work of his employment, but sets forth an additional act of negligence on the part of the employer in giving to the plaintiff a negligent command. Thus, under the application of the quoted provision of the statute, any negligence of the employer in continuing to operate the dangerous appliance or in complying with the negligent command of the master would not defeat a recovery. Even were the case to be determined irrespective of such provision of the workmen’s compensation act, since questions of proximate cause are peculiarly within the province of the jury to determine, it could not be said as a matter of law that the petition in the instant case shows on its face that the injury was brought about by the plaintiff’s own negligence. See, in this connection, Hood v. Atlantic Steel Co., 29 Ga. App. 457 (115 S. E. 917). Accordingly the court did not err in refusing to dismiss the petition on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17031.
    Transylvania Casualty Insurance Co. v. City of Atlanta, for use, etc.
   Jenkins, P. J.

In conformity with the provisions and requirements of an ordinance adopted by the governing authorities of the City of Atlanta, the defendant company executed an indemnity policy naming one Ross and the City of Atlanta as the assured, and specifically providing that suit might be brought thereon in the name of the city for the use of any person whose person or property was injured by the operation of the jitney-bus of Ross. In the instant case the petition against the indemnity company by the City of Atlanta, for the use of Ruby Davis, avers, that while the policy was of force, Ruby Davis was injured and damaged by Ross when lie was operating the jitney-bus, and that she instituted suit in the city court of Atlanta against Ross and recovered a judgment thereon in a named sum. To the petition is attached a copy of that suit, together with the verdict and judgment entered thereon. The petition further alleges that Ross is insolvent, and asks judgment under the terms of the indemnity policy to the extent of the judgment against him within the limits provided by the policy. To this petition the defendant demurred upon the grounds that the making of the contract referred to between the City of Atlanta and the defendant for the benefit of third persons was beyond the scope of the city’s corporate powers, and the contract void; that the judgment set forth in the petition as having been recovered by Ruby Davis against Ross was not binding upon the defendant insurance company, for the reason that the latter was not a party to said cause; that there were no facts set forth in the petition to show liability on the part of the defendant to the plaintiff or the plaintiff’s usee on account of the accident, and that in any event only a court of equity had jurisdiction to entertain such an action. The court sustained the contention of the defendant to the effect that the previous judgment referred to was not conclusively binding upon it, but did not strike the averments setting forth the proceedings in that cause, together with the judgment rendered therein, and allowed the petition to stand. The defendant excepts to the action of the court in refusing to dismiss the petition. Held,:

Decided September 14, 1926.

1. While a municipality is limited to the exercise of such powers as are expressly conferred by statute, or as may be implied as necessarily incident thereto, still, in the exercise of such implied powers, it has the right to adopt all ordinary or usual means which may be necessary to their full execution. .The regulation and control of jitney-bus traffic coming clearly within the powers of the municipality, the ordinance requiring the operators of such busses to furnish to the city a bond for the protection of persons who might be injured in the conduct of such business was the exercise of an ordinary and necessary means of regulating such traffic, and the right of the city to sue upon a valid obligation, according to its express terms and provisions, follows as a necessary consequence. See Hazelton v. Atlanta, 144 Ga. 775 (87 S. E. 1043).

2. The court correctly held that the previous judgment rendered in favor of the usee against the operator of the jitney-bus was not conclusive upon the indemnity company, for the reason that the latter was not a party to that proceeding. The defendant, by virtue of its indemnity bond, occupying the status of a surety, became prima facie bound by the judgment in that proceeding, with the right on its part, in the instant action, to disprove its liability by showing that the defendant in the former ease was not in fact liable. Calvitt v. Savannah, 24 Ga. App. 481 (101 S. E. 129) ; Walker v. Shannon, 21 Ga. App. 39 (93 S. E. 498); Bradwell v. Spencer, 16 Ga. 578; Bennett v. Graham, 71 Ga. 211; Gilson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. R. 250).

3. The suit being an action on an indemnity bond to which the plaintiff was a party, a court of law was not without jurisdiction.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Complaint; from city court of Atlanta—Judge Reid. November 11, 1925.

Key, McClelland & McClelland, for plaintiff in error.

Thomas J. Lewis, contra.


text:
    17052.
    EDISON v. PLANT BROTHERS & CO. INC.
    1. Where a purchaser of goods renounces the contract of sale prior to their delivery by notifying the seller to cancel the order, but the seller) refusing to accept such tender of breach, thereafter delivers the goods to a carrier for transportation to the purchaser, who, after their arrival at destination, refuses acceptance, and the seller proceeds to store them for the purchaser and brings suit on the contract for the purchase price, such a mere ineffective tender of delivery on the part of the seller would not amount to a waiver on his part of his right to such a procedure under section 4131 of the Civil Code (1910), but he is still entitled to pursue the remedy therein provided for, by suing, not on open account for goods sold and delivered, but upon the contract for the purchase price of the goods thus retained by the purchaser. Dunaway v. Oolt, 26 Ga. App. 554 (106 S. E. 599) ; Southern Flour Oo. v. Si. Louis Grain Go., 11 Ga. App. 401 (75 S. E. 439); American Mfg. Go. v. Champion Mfg. Go., 13 Ga. App. 551 (79 S. E. 485) ; Phosphate Mining Oo. v. Atlanta Oil Go., 20 Ga. App. 660 (93 S. E. 532). The ruling made in White tG Hamilton Lumber Go. v. Lynch, 159 Ga. 283 (125 S. E. 472), is inapplicable under the facts of the instant case. In that case the seller accepted the tender of the breach and brought an action for damages therefor. Nor does the ruling laid down in that case, with reference to the measure of damages for goods to be manufactured, where the contract is breached prior to manufacture of the goods, have application, since in the instant case it appears that at the time when notice was given that the goods would not be accepted, the major portion of them was already crated for shipment, and the remaining portion was practically ready for shipment.
    2. Where an executory contract for the purchase of goods of more than $50 was evidenced by a memorandum order written in duplicate by the salesman of the vendor, which order was afterwards accepted by the vendor, and where on a suit for the purchase price of the goods the vendee defended by setting up that under the .terms of the order as evidenced by his duplicate copy of the memorandum the goods were to be delivered not later than a certain date, and where it appears that the order sued on was recognized by the parties to the agreement, the vendee specifically referring in one of his letters to the terms governing delivery as set forth by his duplicate order, such reference to such order, though the same was originally unsigned by the party to be charged, is sufficient to take the contract out of the statute of frauds. Frank v. White <& Meyer Weclvwear Go., 29 Ga. App. 694 (2) (116 S. E. 855). Moreover, the jury were authorized to find that the special manufacturing of the goods done in compliance with the intent and purpose of the order, and within the time specified, amounted to such part performance of the contract on the part of the vendor as would render it a fraud on the part of the vendee to refuse acceptance. Civil Code (1910), § 3223 (3).
    3. While it is a general rule that in construing a contract the written portion shall take precedence over the printed portion when in conflict, it is nevertheless the duty of the courts to give effect to the entire contract when possible. Accordingly, where the order form had the printed words “ship about” followed by a blank, which was filled in by adding the words “October 10, sure, complete,” so that the terms of shipment should read “ship about October 10, sure, complete,” both the printed and the written language, not being in conflict, should be given effect, and the purpose of this provision must be taken to mean that the goods would certainly be shipped in their entirety about October 10. Under such an agreement, it was a question for the jury whether the shipment made on October 22 was in compliance with the terms of the agreement.
    4. Under the rulings set forth above, the exceptions taken to the order refusing a new trial are without merit.
    Decided September 14, 1926.
    Complaint; from city court of Atlanta—Judge Eeid. November 28, 1925.

      Mayson & Johnson, for plaintiff in error.
    TP. 8. Dillon, TP. J. Davis Jr., contra.
   Jenkins, P. J.

The defendant, trading as Black Shoe Store, on August 23, 1923, gave to the plaintiff’s salesman in Boston an order for certain shoes, to be specially manufactured, of which order the salesman made a duplicate memorandum, setting forth the shoes ordered, the price of each style, the terms of the sale, and the following notation of shipment, “Ship about October 10th, sure, complete.” This memorandum, a duplicate of which was furnished defendant, was not signed by him, and the order was taken subject to the acceptance of the plaintiff, who was a shoe manufacturer. The plaintiff wrote the defendant under date of August 27, 1923, that it could not supply certain of the shoes ordered, and requested permission to make certain substitutions, stating that if permission for such substitutions should be sent by return mail the plaintiff would be able to give the same delivery date on the substituted articles as outlined on the original order. The defendant wrote the plaintiff under date of August 27, 1923, requesting an acknowledgment of the order placed in the plaintiff’s Boston office on August 23, “delivery of which was to be complete by October 1st to 10th.” In reply to the defendant’s letter of August 27, the plaintiff wrote the defendant on August 30, reciting its previous acknowledgment of the order, and stating that “this order will receive our careful attention and we will do our utmost to give you shipment by October 10th.” On September 1, 1923, the defendant wrote the plaintiff, declining to allow the substitution mentioned in the plaintiff’s letter of August 27, and stating that “we are going to ask that you kindly let the balance of order come out as originally given.” The plaintiff proceeded with the manufacture of the shoes, and on Octobef 10, 1923, had about two thirds of the order ready for shipment, and the remainder of the order practically complete. On October 12, 1923, the defendant wired the plaintiff to cancel the order of August 23, stating that shipments were promised October 1, to be complete by October 10, and “we can not use these shoes now.” Following this telegram, the defendant wrote the plaintiff on October 13, confirming the telegram, to which letter and telegram the plaintiff replied on October 16, declining to cancel the order. The defendant wrote the plaintiff under date of October 19, replying to its letter of the 16th, in part as follows: “The young lady who accepted our order agreed to take care of us and make shipment by October 1st, with shipments complete by October 10th, and it so specifies in our duplicate.” On October 22 the plaintiff shipped the shoes by express to the defendant at Atlanta, Georgia, and they were tendered to the defendant on the 24th and rejected, the defendant writing the plaintiff on that date as follows: “We may also add that the express company this day offered the delivery of your shipment which is covered by your invoice under date of October 22, and we refuse to accept them, inasmuch as you shipped these shoes so late after receiving our cancellation.” Whereupon the plaintiff stored the goods for the defendant and brought suit for the contract price thereof. The defendant contended that the plaintiff breached its contract in not shipping the shoes ordered within the time specified by the contract. The salesman to whom the order was given testified that nothing was said by the defendant at the time the order was given about any other shipping date than October 10, and that she told the defendant the plaintiff would try to get the shoes to him about October 10.

The jury returned a verdict in favor of the plaintiff for the amount of the purchase price, the defendant’s motion for a new trial was overruled, and to this judgment of the court exception is now taken.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, P. J. Jenkins, P. J.

text:
    17058.
    WAYNESBORO PLANING MILL v. AUGUSTA VENEER COMPANY.
    1. It is the law of Georgia that “he who takes with notice of an equity takes subject to that equity” (Civil Code of 1910, § 4529), and that “notice sufficient to excite attention and put a party on inquiry is notice of- everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge, in fixing the rights of parties” (Civil Code of 1910, § 4530). But irrespective of whether or not the principles of law just stated would be sufficient to charge a purchaser of land with notice of a third person’s rights to the timber privileges under a lease previously made but which was actually reduced to writing subsequent to the conveyance of the land, by reason of a stipulation embodied in the land deed reciting that “this deed is made subject to a timber lease of this date for sawmill and turpentine purposes for five years,” the plain purport and intent of the land deed, when construed with reference to such embodied stipulation and with reference to all the other surrounding facts and circumstances, including the consideration expressed by the deed, is necessarily to exclude from its operation the timber and turpentine rights for and during the period mentioned, with the effect that during the continuance of that period the timber and turpentine rights were excepted from the conveyance and were not intended to be passed thereunder.
    2. Since the sale by the lessee of the timber in dispute to the plaintiff in trover was made in conformity with the rights of the lessee under the lease, the fact that the lessee defaulted on subsequent payments would not give the lessor or his privies the right to retake the property thus sold and delivered in accordance with and during the operation of the lease contract.
    3. In accordance with the principles stated above, the verdict in favor of the plaintiff was demanded.
    Decided September 14, 1926.
    Rehearing denied September 29, 1926.
    Trover; from city court of Waynesboro—Judge Davis. December 7, 1925.

      G. O. Anderson, for plaintiff' in error.

      E. M. Price, E. V. Heath, contra.
   Jenkins, P. J.

About the first of October, 1923, Carlton entered into a verbal understanding with Powers for the sale of certain timber to Powers for the sum of $10,000. On November 10, 1 923, a written contract was executed and delivered, which appears to have been originally dated October 10, 1923, but changed to November 10, 1923. The contract provided for a cash payment of $500 by Powers, and certain other payments to be made in installments of $500 each as the timber was removed, for which deferred payments Powers executed his notes to Carlton. Between the date of such verbal understanding and the date of the execution and delivery of the written contract, to wit, on October 10, 1923, which was the date originally appearing on the lease con-' tract, Carlton conveyed the land on which the timber grew to his daughter, Mrs. Wood, for a consideration of $2500. ' This conveyance contained the following provision: “This deed is made subject to a timber lease of this date for sawmill and turpentine purposes for five years.” Powers made the first payment for the timber as provided for by his written contract with Carlton, moved his sawmill upon the premises, and began cutting the timber covered by the conveyance to him, receiving advances from the Augusta Veneer Company, to which company the timber thus cut was conveyed, and paying over to Carlton the proceeds of such sale received from the Augusta Veneer Company. The Augusta Veneer Company, in pursuance of such purchase, entered upon the premises and branded the logs which had been cut and conveyed to it. Powers ceased to cut the timber and defaulted in his payments therefor, after which Mrs. Wood conveyed all the timber, both standing and cut, to the Waynesboro Planing Mill, which took possession of certain branded timber that had been turned over to the Augusta Veneer Company by Powers. The Augusta Veneer Company brought trover for the timber thus seized by the Waynesboro Planing Mill, and obtained a judgment in its favor, to which the Waynesboro Planing Mill excepts.

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON MOTION FOR REHEARING.

Jenkins, P. J.

The decision of the Supreme Court in Sirmans v. Milltown Lumber Co., 130 Ga. 82 (60 S. E. 267), and the decision of this court in the case of Sutton v. Gray Lumber Co., 3 Ga. App. 377 (60 S. E. 2), were not overlooked when this case was originally considered. The question involved in each of those cases was, to whom did the uncut timber belong after the expiration of the timber lease referred to by the land deed? In both of the cases mentioned it was in substance held, that if under the terms of such a timber lease the rights of the lessee became terminated before he had actually cut the timber covered by his lease, the uncut timber did not revert to the original grantor, but passed to his grantee under the land deed. These decisions are based upon the theory that the only reservation made by the subsequent land deed was such as was actually specified, and that upon the expiration of the stipulated lease, the grantee under the land deed took all rights to the uncut timber which his grantor may have had. No such question enters into the instant case. Here the owner of the land, after orally agreeing to a lease for five years of the timber rights for the sum of $10,000, but before the timber lease was reduced to writing and signed, conveyed the land itself, in consideration of $2,500, to another person, but stipulated in the land deed that it was made subject to a timber lease of even date. Thus, the stipulation in the deed, while not excepting any greater rights, than those covered by the terms of the lease referred to, clearly indicated to the purchaser of the land that she was not entitled to the rights actually covered by the terms of the lease mentioned. After the expiration of such period covered by the lease, the reservation would no longer militate against the rights of the grantee in the land deed, but under the rule laid down in the Birma/ns.case, the timber then remaining uncut would belong to her, under the theory that the land conveyance carried all the interest of the grantor save such as he might have under the terms of the stipulated lease. In our opinion, the grantee under the land deed should not be allowed, by paying the value of the land, which represented only one fifth of the value of the land and timber, to acquire title to the cut timber in dispute, despite the specific stipulation in her deed putting her on distinct notice that the timber rights for and during the period of five years were not conveyed, but belonged to another person. Especially would this be true where it appears from the statement of facts appended to the original opinion that such purchaser of the land thereafter permitted the purchaser of the timber to enter upon the premises, and at his own expense to cut timber under his lease, and sell the same for a consideration to the defendant in error in this case. While it is true that standing timber is regarded as a part of the realty, even if the stipulation in the land deed under which plaintiff in error holds could not of itself be taken to estop it from denying the validity of the previous oral sale of the timber, it would seem that there was such part performance of the previous oral contract of sale, permitted by the grantee under the land deed, as would estop her from denying its validity, and would render unnecessary the reduction to writing of the timber lease recited by the terms of the written land deed.

Rehearing denied.


text:
    17233.
    MORRIS, administrator, v. GIBSON.
    1. “One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator.” Burns v. Borkan, 126 Ga. 161 (3) (154 S. E. 946). Thus, where the defendant, by undertaking to dispose of the plaintiff’s property, became the moving cause of the injury sustained thereto, she rendered herself liable as a joint trespasser with the one actually committing the trespass under such authority. Burns v. Borkan, supra; Burch v. King, 14 Ga. App. 153 (2) (80 S. E. 664); Ketchum v. Price, 31 Ga. App. 49 (119 S. E. 442).
    2. In order to maintain an action in trespass on account of damages to realty, the plaintiff must show either actual possession or that he is the true owner. Moore v. Vickers, 126 Ga. 42 (54 S. E. 814) ; Breioer v. Waddell, 141 Ga. 528 (81 8. B. 442).
    3. Adverse possession of lands, under written evidence of title, for seven years, shall give a title by prescription. Civil Code (1910), § 4169.
    4. “Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced therein.” Civil Code (1910), ■ § 4167.
    5. The word “contiguous,” thus used, means to touch. Standard Dictionary; Webster’s New International Dietionaiy. Accordingly, tracts of land which corner with one another are contiguous. Clements v. Crawford County Bank, 64 Ark. 7 (40 S. W. 132) ; 2 Words & Phrases, 1496.
    6. The same deed may make independent conveyances of two or more separate and non-eontiguous tracts of land. In such a case actual possession of one or more of such distinct entities as thus conveyed will not be extended by construction to include them all. Where, however, the several tracts specified in the conveyance are in fact contiguous and therefore constitute but one parcel of land, it is not necessary that it be expressly designated as one parcel by the terms of the deed, and where the several tracts designated as being included by the terms of the conveyance actually adjoin or corner, so as to in fact constitute a single parcel, actual possession of a portion of the premises thus conveyed will be extended by construction to include the entire premises. Johnson v. Simerly, 90 Ga. 612, 615 (16 S. E. 951) ; Bacoter v. Mattoa,
      106 Ga. 344, 351, 352 (32 S. E. 94) ; TuoJcer v. Wimpey, 158 Ga. 820 (124 S. E. 692).
    7. In accordance with the foregoing principles of law, the grant of a non-suit was erroneous.
    Decided September 14, 1926.
    Action for damages; from Floyd superior court—Judge Irwin presiding. January 12, 1926.

      Denny & Wright, Rowell 0. Stanton, for plaintiff.

      Maddox, Matthews & Owens, for defendant.
   Jenkins, P. J.

Charles W. Morris, as administrator of W. A. Adams, deceased, brought suit against Mrs. G. T. Gibson in trespass for $1297, the alleged value of the interest of his intestate as an owner of a half undivided interest in certain lands in certain timber cut therefrom by the defendant, it being alleged in the original petition that the timber was cut by the defendant by and through her agent, Alford. By amendment the plaintiff struck the allegation that the timber was cut by the defendant acting through her agent, proceeded on the allegation that the timber was cut by the defendant, and alleged that on June 1, 1920, the defendant, acting through her agents Pig Adams and R. L. Brown, pointed out the lot of land in question—lot No. 325—to P. E. Alford as her property, and sold it to Alford and put him in possession thereof, and that, acting upon such representations, Alford cut the timber on said land. It appears from the evidence that on April 7, 1920, Mrs. Gibson, the defendant, entered into a contract with P. E. and F. L. Alford, whereby she sold to them a certain tract of land lying in the 22d and 23 d districts of Floyd county, composed of various lots and portions of lots, and that on May 8, 1920, she executed to the purchasers her bond for title therefor; the premises being known as the Hurt farm. After the execution of the contract of sale Mrs. Gibson employed Brown, a surveyor, to survey the land sold, instructing him to get Pig Adams, the father of plaintiff’s intestate, to point out the lines, as he knew the lines and knew where the property was located. The surveyor, in company with the purchasers, went upon the premises and surveyed the land under the direction of Pig Adams, and surveyed lot of land No. 325 of the 22d district of said county, as pointed out by said Adams, into the tract sold by Mrs. Gibson to the Alfords. It appears that under the survey and contract of sale, Alford went into possession of lot of land No. 325, to which Mrs. Gibson had no title and which was not intended to be included by the terms of the contract. It appears further that on January 6, 1922, Alford and defendant entered into a further contract, whereby Alford agreed to cut the timber on the farm sold to him by defendant and pay defendant $4 per thousand feet of lumber for the same, to be applied on the purchase price of the land, and that under this agreement he cut the timber on lot of land No. 325 and paid the proceeds of the same, at the agreed price, to the defendant, to be applied on the purchase price of the land; and that the defendant told Alford where the corners of the land sold him were, and visited lot 325 on several occasions while he was cutting timber therefrom.

The plaintiff claimed title under a deed to his intestate dated December 30, 1912, conveying the following property: “All that part of lots Nos. 343 and .344 in the twenty-third district and third section of Floyd county, Georgia, and all that part of lot number 324 in the 22nd district and third section of Floyd county, which lies south and west of the following described line: commencing at a point .in lot 344 on the east side of the Etowah river, known as the old ferry, and running along the old fence row, bearing east or nearly so, to the Bass ferry road, and across said road and across a field lying east of said road, to the back fence on the east side of said field; thence along said fence in a southwesterly direction until it intersects the district line; thence south until it intersects the line dividing land lots Nos. 323 and 324, in the twenty-second district and third section of Floyd county, the whole tract containing two hundred and seventy acres, more or less. Also an undivided half interest in lot of land No. 325 and all of lot No. 323, both in the 22d district and 3d section of Floyd county, excepting and reserving an undivided one-half interest in all minerals and metals, being the same interest reserved by Mrs. Yaleria Bass in deed to G. J. Briant, Sept. 11th, 1865. The property herein conveyed is the same as described in said deed by Mrs. Yaleria Bass to G. J. Briant, recorded in Book £FF/ page 41, except that part lying on the west side of the Etowah river, which has been sold to M. F. Johnson.”

It appears that Adams never took actual possession of any portion of lot of land No. 325 under this deed, but that he did go into possession under the deed, that he lived on a portion of the land and had cultivated a portion of lot of land No. 323, which cornered with and was contiguous to lot of land No. 325, for more than ten years.

At the conclusion of the plaintiff’s testimony, upon motion of the defendant’s counsel, the court granted a nonsuit, to which ruling exception is taken.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Jenkins, P.

text:
    16013. 16014.
    Merchants & Mechanics Bank v. Beard, sheriff, et al. Massillon Aluminum Co. v. Needham et al.

   Jenkins, P.

J. A bill of sale of a stock of merchandise changing in specifics was made in May, 1922, to secure a debt, and was filed for record at 10:35 o’clock a. m. on February 9, 1924, and was actually recorded on February 11, 1924. After the date of the bill of sale fifteen common-law executions were obtained against the maker, of which four (instead of one as erroneously stated to be the case in the questions certified to the Supreme Court), to wit, those of Demorest Broom Works, Solar Electric Company, Classic Maid Company, and Pathé Phonograph & Radio Corporation, were recorded within ten days from the date of the rendition of the judgments on which they were based, on said February 9, 1924; three more of these ' executions, to wit, those of Elam Paper Company, Schlanger & Mandal, and Butler Brothers, based on judgments rendered prior to January 30, 1924, were entered on the execution docket on February 9, 1924, prior to TO:35 o’clock a. m. Later on the same day five more of the said executions, based on judgments more than ten days old, to wit, those of E. A. Kaestner, Buckeye Aluminum Company, Phillips & Buttorff Manufacturing Company, Durr Drug Company, and Frank Tea & Spice Company, were entered on the execution docket. The three remaining executions referred to above, all based on judgments rendered prior to January 30, 1924, one of which antedated in time of rendition all the other executions, were never recorded at all. On February 13, 1924, a distress warrant for rent was levied on the stock of goods covered by the bill of sale, and the money arising from the sale under the distress warrant was distributed by a money-rule judgment, under which proceeding the fund was claimed by all the liens referred to above, the court holding that the twelve executions entered on the execution docket prior to the actual record of the bill of sale should be first paid, and that the remainder of the fund should then be applied in part payment of the debt secured by the bill of sale. The holder of the bill of sale and the holder of the oldest unrecorded fi. fa. excepted. Held:

1. Under the answers given by the Supreme Court to the questions certified to it in this case (162 Ga. 446, 134 S. E. 107), the fi. fas. of Demorest Broom Works, Solar Electric Company, Classic Maid Company, and Paths Phonograph & Radio Corporation, having been- recorded on February 9, 1924, within ten days from the date on which the judgments were rendered, with the result that the lien relates back to the date of the judgments, take precedence over the bill of sale executed in 1922 and filed for record on February 9, 1924, and rank first in the distribution of the fund.

Decided September 15, 1926.

Money rule; from Muscogee superior court—Judge Munro. October 20, 1924.

Hatcher & Hatcher, Arnold & Battle, for plaintiffs in error.

Slade & Swift, Love & Fort, contra.

2. Under the answers given by the Supreme Court to the questions certified to it, the fi. fas. of Elam Paper Company, Schlanger & Mandal, and Butler Brothers, although founded on judgments rendered more than ten days prior to their record, having been actually entered upon the execution docket prior to 10:35 o’clock a. m., February 9, 1924, are inferior in dignity to the four fi. fas. mentioned above, but superior in dignity to the said bill of sale.

3. Under the answers given by the Supreme Court to the questions certified to it, the bill of sale executed in 1922, but filed for record at 10:35 o’clock a. m. on February 9, 1924, is superior in dignity to the fi. fas. of E. A. Kaestner, Buckeye Aluminum Company, Phillips & Buttorff Manufacturing Company, Durr Drug Company and Frank Tea & Spice Company, which were founded on judgments rendered more than ten days prior to February 9, 1924, and were actually entered upon the execution docket on February 9, 1924, but after 10:35 o’clock a. m., and is also superior to the unrecorded fi. fas. of Sanitary Products Corporation of America, Charles Parker Company, and Massillon Aluminum Company, although the last mentioned fi. fa. was founded upon the oldest judgment of all.

4. It appearing that after the satisfaction of the seven fi. fas. first mentioned the bill of sale will much more than take up any fund remaining, it is unnecessary to deal with the priorities of the fi. fas. not sharing in the fund.

5. The court having properly held that the fi. fas. mentioned in paragraphs 1 and 2 should be paid out of the fund, but having erred in holding that the other recorded fi. fas., mentioned in paragraph 3, should join with them in such priority over the bill of sale, it is ordered that the judgment in the case of Merchants & Mechanics Bank v. Beard, sheriff (No. 16013), in which case the holder of the bill of sale is plaintiff in error, be affirmed, with direction that it be amended in accordance with the rule of priorities stated above; that the costs in that ease be borne by the defendants in error who do not participate in the distribution of the fund under this decision; that the judgment in the case of Massillon Aluminum Co. v. Needham et al. (No. 16014), in which ease the holder of one of the unrecorded fi. fas. is plaintiff in error, be affirmed, with direction that it be amended to conform in its entirety with the rule of distribution stated above, and that the costs in the latter case, in which no relief is obtained by the plaintiff in error, be charged against it.

Judgments affirmed, with direction.

Stephens and Bell, JJ., concur.


text:
    16842.
    YELLOW CAB COMPANY v. NELSON.
    1. Where it is shown, by evidence, that an automobile was operated upon the public street in the usual way, and was at that time in the possession and control of the owner’s servant, the jury may infer that the servant was using it in the prosecution of tire owner’s business and within the scope of the servant’s employment.
    2. Whether such a charge would have been abstractly correct or not, there was no error, under the facts of this case, in the court’s failure to charge the jury that “the mere proof of the ownership of the taxicab which caused the injury is not sufficient of itself to establish prima facie that the car was being driven-by a servant of the owner, about the owner’s business, and within the scope of his employment.”
    3. The verdict was not excessive as a matter of law. The trial was free from error. The court did not err in refusing a new trial.
    Decided September 17, 1926.
    Rehearing denied October 2, 1926.
    Damages; from city court of Atlanta—Judge Beid. September 19, 1925.
    Dorsey, Shelton & Dorsey, Carlton W. Binns, Samuel D. Hewlett, for plaintiff in error.

      Colquitt & Conyers, Neufville & Neufville, contra.
   Bell, J.

This was a suit against the Yellow Cab Company to recover damages for personal injury. The seven-year old plaintiff was injured by a cab at an intersection of streets in the City of Atlanta. The complaint alleged that the cab was the property of the defendant and that it was being operated at the time by one of the defendant's servants. There were several specifications of negligence, including unlawful and excessive speed. The trial resulted in a verdict in favor of the plaintiff for $3000. The defendant moved for a new trial, which the court refused, and the defendant excepted.

Counsel for the plaintiff in error contend that there was no sufficient evidence to establish the relation of master and servant as between the defendant and the person driving the cab at the time of the injury. The evidence showed that the vehicle was a yellow cab with the words “Yellow Cab” on the side of the door; also that it was of the kind commonly used by the defendant, and that such cabs were used by no other company in Atlanta at that time. There was testimony to the effect that the driver of the cab wore a yellow band around his cap, as was the custom of the regular drivers of this company. But, according to one witness, “There are two sets of drivers that have caps with yellow bands around them—Blackus and the Yellow Cab Company.” Blackus had been enjoined from using such caps, though the injunction was probably not issued until after the plaintiff’s injury. We think the evidence was sufficient to establish that the cab which struck the plaintiff was the defendant’s property, and also that the driver was the defendant’s servant, and thus to make a prima facie ease in favor of the plaintiff, on the issue under discussion. “Where a servant who is emploj'ed for the special purpose of operating an automobile for the master is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possessiop of.” See Fielder v. Davison, 139 Ga. 509 (6) (77 S. E. 618); Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (2) (124 S. E. 92). But it is said that the evidence disclosed that the yellow band around the cap was a badge of identity of the drivers of another company as well as of the defendant’s drivers. Even so, when the defendant’s ownership of the cab was shown, the jury could very reasonably infer that it was not in the possession of a driver of the competing company, but that the yellow band in the particular instance identified the servant of the defendant; or, in other words, that there was not a cross of drivers and cabs of the two companies on the occasion in question. Such a mixture was not probable. The defendant introduced no evidence.

The court did not err in failing to charge the jury that “The mere proof of the ownership of the cab which caused the injury is not sufficient of itself to establish prima facie that the car was being driven by a servant of the owner, about the owner’s business, and within .the scope of his employment.” Language almost identical was used by this court in Gillespie v. Mullally, 30 Ga. App. 118 (117 S. E. 98), but an examination of the entire opinion in that ease will show that this expression was unnecessary to the conclusion reached and was mere obiter. But assuming that such a charge would have been abstractly correct, there was in the present case more than “mere proof of the ownership of the taxicab,” and the court was not required to voluntarily charge on the effect of one of several facts shown by the evidence. Furthermore “it is not incumbent on the court, in the absence of a timely written request, to charge as to particular shifts in the burden of proof or of proceeding as they may develop under the evidence.” Brazell v. Hearn, 33 Ga. App. 490, 496 (127 S. E. 479); Hogg v. L. & N. R. Co., 33 Ga. App. 773 (3) (127 S. E. 830). It was necessary, of course, for the plaintiff to show that the automobile was being operated by the defendant’s servant within the scope of his employment. Dougherty v. Woodward, 21 Ga. App. 427 (1) (94 S. E. 636); Rape v. Barker, 25 Ga. App. 362 (1) (103 S. E. 171); Yellow Cab Co. v. General Lumber Co., 35 Ga. App. 620 (134 S. E. 190). But the ultimate fact to be proved is one thing, while the facts evidentiary of it may be a very different thing. Proof of the latter may, without more, establish the former, thus embracing by inference that which is beyond the mathematical limits of the evidence. Failure to recognize this principle may result in placing too great a burden on the party having the affirmative, in cases of this character. See, in this connection, Civil Code (1910), § 5743; Haas v. Godby, 33 Ga. App. 218 (3) (125 S. E. 897, L. R. A. 1916B, 629). It is the opinion of the writer that the court would have erred in giving the charge quoted above. Automobiles are usually driven by the owners or by persons in the owners’ service. Occasions when this is not true are exceptions to the general rule. Furthermore, proof that it is not true will ordinarily depend upon facts peculiarly within the knowledge of the owner and as to which he should take the burden of evidence. I therefore think the true rule in cases of this sort ought to be that, where it is shown that an automobile was operated in the usual manner by some person not identified, and where nothing else appears, the inference is authorized that it was being operated either by the owner or by some one in his service. However, the present case does not call for a decision of this question.

The verdict was not so large as to' force the conclusion that it was induced by prejudice, bias, or mistake on the part of the jury. The evidence authorized the verdict. No other questions are raised in the motion for a new trial. The court did not err in refusing the motion.

Judgment affirmed.

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