author: Broyles, O. J.

text:
    18703.
    Loewenherz v. McMurria et al.

   Broyles, O. J.

This was a suit in trover for the recovery of an automobile. Upon tlie trial the evidence demanded a finding that the plaintiff had neither tide to the automobile nor the right to possess it. The assignments of error upon various rulings of the court as to the admissibility of evidence show no material error, and the court properly directed a verdict in favor of the defendants.

Decided April 10, 1928.

McGutchen, Bowden & Gaggstatter, for plaintiff.

George G. Palmer, for defendants.

Judgment affirmed.

Luke and. Bloodworlh, JJ., concur.


source: Caselaw Access Project

author: Ltjke, J.

license: Public Domain

text:
    18704.
    Cobb v. Florence.
    Decided April 10, 1928.

      Astor Merritt, for plaintiff. J. B. Hutcheson, for defendant.
   Ltjke, J.

1. Where a promissory note provided that it should be paid off at the rate of ten dollars per week, and that on failure to comply with its terms all should become due and payable, the addition of the words “without offset or defalcation” did not preclude the maker from pleading a total failure of consideration because of an express warranty of the value of the thing for which the note was given.

(a) The evidence was in conflict, and the jury had the right to return a verdict which in effect sustained the plea of total failure of consideration.

2. The ruling of the court upon the oral motion to strike the plea of the defendant -was not excepted to pendente lite and can not be the basis of a ground in a motion for a new trial.

(a) The rulings as to the admissibility of the evidence offered to sustain the plea were not erroneous.

3. The charge of the court was full and fair and was not subject to the criticisms urged against the excerpts complained of.

(«) 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 Bloodworth, J., concur.


author: Bboxles, O. J.

text:
    18705.
    Planters Bank of Americus v. Albert Pick & Co.
   Bboxles, O. J.

1. Where a mortgage has been taken upon personal property, the mortgagee, either before or after the foreclosure of the mortgage, can bring an action for damages for the destruction or impairment of the mortgaged property. Anderson v. Adams, 117 Ga. 919 (3) (43 S. E. 987); Benton v. McCord, 96 Ga. 393 (23 S. E. 392).

Decided April 10, 1928.

Rehearing denied May 15, 1928.

R. L. Maynard, for plaintiff in error. Bradley Hogg', contra.

2. “A collecting bank, knowing of the depressed financial condition of the debtor, is delinquent in its duty if it neglects to inform its customer of such vital condition and fails to take vigorous measures under the circumstances to secure payment, and if loss occurs by its negligence to exercise that degree of skill, care, and diligence which the nature of its undertaking calls for, with reference to the time, place, and circumstances surrounding the undertaking, it will incur liability to its principal for the loss sustained.” Pinkney v. Kanawha Valley Bank, 68 W. Va. 254 (69 S. E. 1012, 32 L. R. A. (N. S.) 987, Ann. Cas. 1912B, 1115).

3. Under the above-stated rulings and the facts of the instant case, the court did not err in overruling the demurrers to the petition, or in refusing to grant a- new trial for any reason assigned in the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    18706.
    Seaboard Air-Line Railway Co. v. D’Avignon.
    Decided April 10, 1928.

      W. W. Dylces, for plaintiff in error.

      Hollis Fori, J. A. Hixon, contra.
   Broyles, C. J.

The court did not err in allowing the amendment to the petition, or in overruling the demurrers to the petition as amended.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    18707.
    Martin v. The State.
    Decided April 10, 1928.

      R. A. McGraw, for plaintiff in error.

      J. F. Hatchett, solicitor, contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds. The jury were authorized, under the evidence submitted to them, to find the accused guilty, and the court properly overruled the motion.

Judgment affirmed.

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


text:
    18708.
    NICHOLS v. THE STATE.
    Decided April 10, 1928.

      'William W. Mundy, for plaintiff in error,
    cited: 77 Ga. 706 (2 a); 108 Ga. 477 (1); 124 Ga. 784; 105 Ga. 631; 101 Ga. 782.

      S. W. Ragsdale, solicitor-general, contra.
   Broyles, C. J.

The accused was convicted of an assault with intent to rape. The evidence, direct and circumstantial, amply authorized a finding that he committed an assault and battery upon the female in question with the intent to have sexual intercourse with her, provided only he succeeded in inducing her to consent thereto. This was a reasonable hypothesis under the facts of the case and was not excluded by the circumstantial evidence adduced. It follows that the verdict was unauthorized by the evidence, and that the refusal to grant a new trial ivas error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    18709.
    SIMMONS, alias POPE v. THE STATE.
    Decided April 10, 1928.

      Jere M. Moore, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Luke, J.

A witness in this case testified that he paid defendant $1 for a pint of whisky. The defendant flatly contradicted this witness. Clearly this court is without authority to set aside the conviction of the defendant of both possessing and selling whisky; and the trial judge did not err in overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

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


text:
    18710.
    CONTINENTAL LIFE INSURANCE CO. v. WELLS.
    Decided April 10, 1928.

      Gumming & Harper, for plaintiff in error.

      Hammond & Kennedy, contra.
   Luke, J.

In the first count of his petition John N. Wells sued Continental Life Insurance Company for $3750 alleged to be due him as the insured under an accident-insurance policy, and for 25 per cent, damages and $375 attorney’s fees, alleged to be due because of bad faith on the part of the insurer in refusing to pay the loss. The trial resulted in a verdict and judgment against the defendant on the first count, for $4125, and it excepted. Under the record there is no occasion to consider the second count.

In paragraph 3 of his petition Wells alleged that he was a'passenger on a passenger-train of the Georgia and Florida Railroad, traveling from Augusta to Valdosta; that “when said train was nearing the City of Augusta the car in which he was riding was disabled, and, as a result of said disablement of said passenger-car, plaintiff was thrown from said car and in the path of the wheels thereof,” and had his left hand practically severed from his body, it “being necessary to amputate said limb immediately.” The defendant demurred to this paragraph of the petition because it failed to set out “in what manner the car in which plaintiff was riding was disabled, or in what manner such disablement resulted in plaintiff’s being thrown from the car.” To meet this demurrer the petition was amended by adding the following: “The said train was disabled in that two of the brakes on the engine and cars, while the said train was in motion, were applied with extraordinary force upon the cars, causing the train to come to an immediate stop, shaking and disabling said car and throwing plaintiff therefrom.” The company renewed its demurrer to the petition as amended, the court overruled the demurrer, and exceptions were duly taken.

The contract of insurance provides that John W. Wells is insured against injuries resulting from external, violent, and accidental means, “by the wrecking or disablement of any railroad passenger car . . in or on which the insured is traveling as a fare-paying passenger.” In his brief, counsel for the insurance company insists upon the following ground of the demurrer: The petition fails to show in what manner -the car in which the plaintiff was riding was disabled. Reduced to its last analysis, the petition as amended averred that the “disablement” was the immediate stopping and shaking of the car caused by the violent application of the two brakes on the engine and cars.

Was the immediate stopping and shaking of the car, resulting iti throwing Wells therefrom, a “disablement” within the meaning of the insurance contract ? In the interpretation of contracts, “words bear their usual and common signification” (Civil Code (1910), § 4268 (2)), but “if the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking is generally to be preferred.” Civil Code, § 4268 (4). “If a policy of insurance is so drawn as to require interpretation, and is fairly susceptible of two different constructions, the one will be adopted most favorable to the insured;” and “policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.” Johnson v. Mutual Life Ins. Co., 154 Ga. 653 (115 S. E. 14), and cit. See also State Mutual Life Ins. Co. v. Forrest, 19 Ga. App. 302 (91 S. E. 428), and cit. “Where a contract of accident insurance, prepared by the insurer, contains a word susceptible of being construed, without violence, as having more than one meaning, the meaning most favorable to the interests of the insured must be given it.” Great Eastern Casualty Co. v. Blackwelder, 21 Ga. App. 586 (94 S. E. 843).

It will be observed that the contract of insurance uses the words “wrecking or disablement.” Evidently these words were not used sjmonymously, and evidently they were used to cover different situations, since “wrecking” means “to destroy or seriously damage,” and since the word “disablement” has a broader and a different meaning. Webster’s Dictionary defines “disablement” as “deprivation of ability; incapacity.” The same dictionary defines “disable” as “to render unable or incapable; to destroy the force, vigor, or power of action; to deprive of competent physical or intellectual power; to make incompetent or unfit for service; to impair.” Century Dictionary defines “disable” as “to render unable; deprive of ability, physical or mental; weaken or destroy the capacity of; cripple or incapacitate.” The Funk and Wagnalls Standard Dictionary defines “disable” as “to render physically or mentally incapable of proper or effective action; cripple; impair.” Of course, the car would have been disabled if an axle had broken, or a wheel had come off; but, in view of the foregoing rules of construction, and the varied definitions of the word “disable,” we are certain that it can not be so limited here. For a short time, at any rate, the car was prevented from properly performing its function of carrying passengers, — was rendered “incapable of proper or effective action.” The petition was good as against the special demurrer.

The plaintiff in error insists also upon the general grounds of the motion for a new trial. John N. Wells testified: “I was riding the train, and got up to go back to the toilet, and found the door locked; and, as I turned to go back, the train gave a violent jerk and the brakes screeched and threw me back, and I fell out of th.e door. When I found what had happened to mo I had lost my arm, cut off under the railroad train. I was lying beside the track. The jerk was a terrible one, and it threw me out of the car. All the brakes looked like they screeched, and the whole car looked like it was coming to pieces, and I was thrown on backwards out of the door. I was thrown by such a hard jerk I did not have time to catch, though I tried. I couldn’t say whether I fell between the cars or not. I was unconscious. The accident happened between Gwinnett-street crossing and Delaigle-avenue crossing. . . During the time the train was making that jerking.and convulsive movement I was unable to remain on it. It jerked me down.”

The evidence for the company was to the effect that the brakes were in good order; that nothing unusual occurred on the night in question in regard to the train, engine, or cars; that the disappearance of Wells from the car was not noticed for some time after it occurred; and that the brakes were not applied between Gwinnettstreet crossing and Delaigle Avenue.

There was evidence to sustain the plaintiff’s case, and the jury saw fit to accept that evidence as the correct version of the occurrence. In other respects than herein indicated, there is no controversy as to the sufficiency of the evidence to make out the case. We are bound by the jury’s verdict, and hold that the court did not err in overruling the motion for a new trial for the reason here insisted upon.

The evidence did not show bad faith on the part of the company in refusing to pay the loss, and the legal questions involved were sufficiently doubtful and important to justify the insurer in litigating the matter. Civil Code (1910), § 2549; Phœnix Ins. Co. v. Clay, 101 Ga. 331, 336 (28 S. E. 853, 65 Am. St. R. 307); Mass. Benefit Life Assn. Co. v. Robinson, 104 Ga. 256 (12) (30 S. E. 918, 42 L. R. A. 261); Morris v. Imperial Ins. Co., 106 Ga. 461 (32 S. E. 595); Umpire Life Ins. Co. v. Allen, 141 Ga. 413 (4) (81 S. E. 120). Therefore the judgment is affirmed, with direction that the plaintiff write off from the judgment the part of it which is in excess of the amount recoverable under the policy. Apparently the jury allowed ten per cent, as attorney’s fees. This was improper.

Judgment affirmed, with direction.

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


text:
    18711, 18721.
    HORNSBY v. AMERICAN AGRICULTURAL CHEMICAL CO.; and vice versa.

    Decided April 10, 1928.

      P. D. Rich, for plaintiff in error.

      N. L. Stapleton, contra.
   Luke, J.

In a suit on a promissory note, brought by American Agricultural Chemical Company against E. E. Hornsby, the court directed a verdict against the defendant for principal, interest, and attorney’s fees, and he excepted.

In his plea and answer the defendant admitted the execution of the note; admitted receiving notice of plaintiff’s intention to claim the stipulated attorney’s fees; and pleaded a payment of $500 alleged to have been made December 6, 1926, a further credit for cotton, a set-off of $500 alleged to have been paid the plaintiff for certain land to which it had no title, and an additional set-off for taxes paid on said land and improvements made thereon. The note stipulated for the payment of fifteen per cent, attorney’s fees, and there is no controversy as to them. The $500 alleged to have been paid on December 6, 1926, was gllowed as a credit on the note, so that matter needs no further consideration. The substance of the plea relating to the cotton credit follows: In the fall of 1926 the defendant delivered to the plaintiff, “as collateral security to the note sued on,” 17 bales of cotton of the average weight of 525 pounds per bale, and grading “middling and better,” upon the distinct understanding that the plaintiff was to allow a credit for it of not less than ten cents a pound on the said note, that the said cotton was to be held until it enhanced in value, and that the note would be carried “for a short period of time.” The plea further alleged that “during the month of April” the plaintiff, without his knowledge and contrary to an agreement had with him, sold the said cotton for eight cents per pound, when it had a market value of fifteen cents per pound and was actually worth $1338.55; and that the defendant was entitled to set off the highest proven value'o£ the cotton between the time it was delivered to the plain-till and the trial of the case.

The verdict was for the principal sum of $1112.33, $54.50 interest, and $175.02 attorney’s fees. This verdict was directed upon the theory that the cotton should be credited on the note at a valuation of ten cents per pound. The defendant was entitled to a credit for the actual value of the cotton at the time the plaintiff sold it. Waring v. Gaskill, 95 Ga. 731 (2) (22 S. E. 659); Harrell v. Citizens Banking Co., 111 Ga. 846 (36 S. E. 460); Campbell v. Redwine, 22 Ga. App. 455 (3) (96 S. E. 347); Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165).

It was agreed between the parties that seventeen bales of cotton were to be credited on the note at an average weight of 525 pounds per bale, and that the price was to be fixed by the evidence in the case. Mr. Hornsby testified for himself substantially as follows: “I was looking for something above ten cents per pound, because it was left with the understanding they were to give me credit for ten cents a pound, and if there was any increase, I was to get that. . . I do not know what has been the highest price of cotton of the same grade as the seventeen bales since I delivered the cotton •to them. . . I did not have anybody grade the cotton. As each bale was ginned I examined the sample at the time. . . Some of it would go middling, and some low middling, and that was about the grade. On a general average I would say it would grade low middling. Cotton was selling as high as twelve and thirteen cents at that time. I was expecting to get something like twelve and a half cents for the cotton.” C. M. Harris testified: “About May 1st good middling was selling for about twelve cents per pound. . . I don’t know the grade of this cotton. . . I think two bales would pass low middling. The other was stained and a very low grade. Part of it would not have brought five cents on the market at that time.” Mr. H. L. G-ans, who bought the cotton, testified as follows: “I paid him eight cents per pound for the cotton. . . The price I paid . . was a fair market price at the time I bought. . . At the time the cotton was bought, good middling cotton was worth about twelve cents per pound. . . The average grade of this cotton was strict good ordinary cotton.”

Of course, the burden was upon the defendant to sliow the market price of the cotton at the time it was sold. According to his testimony, cotton was selling as high as twelve and thirteen cents, but what .“low middling” cotton was selling for he does not state. What he was expecting to get for the cotton throws no light upon its actual value. On the other hand Gans testified positively both as to the grade of the cotton and as to its market value.

Under the evidence, a jury might have given the defendant a credit for the cotton at eight cents per pound, in accordance with the only definite testimony as to its actual value, or they might have taken the defendant’s testimony as true, and allowed a credit on the note for the cotton at a valuation óf ten cents per pound. The court accepted the defendant’s evidence (which was directly contradicted by that of the plaintiff) that he was to have a minimum credit on the note of ten cents per pound for the cotton, and directed a verdict accordingly. The defendant, therefore, got for the cotton the very highest credit the evidence entitled him to. What more could he ask ? Of course, the defendant can not complain that the court adopted his contention that the cotton was converted. From a calculation it appears that the verdict is sufficiently large to account for the credit of the full amount of the cotton at ten cents per pound, together with interest on this credit from the date of the conversion. In so far as the cotton is concerned, there appears to be no possible objection to the direction of the verdict for the plaintiff.

The “sales agreement” entered into September 24, 1925, between American Agricultural Chemical Company, of New York, and E. E. Hornsby, of Miller county, Georgia, for the sale to Hornsby of certain land in Seminole county, recited the cash payment of $500, and the giving of a note for $500 for the balance of the purchase price of the land, and contained the following stipulation: “It is also understood that in event of failure of title of party of first part, party of the second part will deliver back to said first party the land above described, and said first party will refund the consideration paid therefor, and party of second part will not hold said first party for damages for breach of contract for that reason.”

In regard to the foregoing transaction the defendant pleaded that he contracted for the land as indicated, and that it was agreed that if the plaintiff’s title should fail, the plaintiff would immediately refund the cash payment of $500 and surrender the note given for the balance of the purchase price of the land; that it developed- that the plaintiff did not own the land, had never been in possession of it, could not, and did not, make the defendant a good and sufficient title to it, and was unable to deliver possession of the land to him, and that, therefore, the defendant was entitled to a set-off on the note of the said $500 paid on the purchase price of the land. By amendment the defendant pleaded that the plaintiff was a nonresident of the State of Georgia, and “that a suit in ejectment was brought against this defendant by the John Hancock Insurance Company in the superior court of Seminole county, claiming title to said land, and that the same has been tried, and resulted in a verdict and judgment in favor of the plaintiff and ousting this defendant from said land.”

It was agreed between the parties that an ejectment suit was brought against E. E. Hornsby in Seminole county for the land in question, that the American Agricultural Chemical Company was brought into court and made a defense to the suit, and that the trial of the suit resulted in a verdict and judgment against both defendants and in favor of the John Hancock Insurance Company, plaintiff, for both the land and its rent. It was further agreed that the American Agricultural Chemical Company filed a motion for a new trial, which was still pending. Hornsby testified that he bought the land from American Agricultural Chemical Company, paying $500 cash, and giving his note payable December 15, 1925, for the balance; that no demand had been made on him for the balance of the purchase-price represented by the note; that he had expended about $90 for taxes on the land and $140 for improvements made thereon, and that he was still in possession of the land.

It appears from the terms of the sale contract that the defendant’s right to get back the money paid by him on the land depended, first, upon the failure of his grantor’s title, and, secondly, upon his surrender of the land to the grantor. Hornsby was still in possession of the land, apparently awaiting the termination of the ejectment suit to fix the title thereto; and, so far as appears from the record, the title to the land is not known, and will not be, until the ejectment suit is concluded. In this situation the set-off of $500 paid on the land was properly disallowed; and the same is true as to taxes paid on the land and as to the cost of repairs and improvements made thereon.

The motion for a new trial as amended is based upon the usual general grounds, and upon special grounds complaining of the court’s judgment directing a verdict for the plaintiff. The defendant in error filed a cross-bill of exceptions. For no reason assigned did the court err in overruling the motion for a new trial. The cross-bill of exceptions is dismissed.

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

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


text:
    18712.
    Bryan v. Moncrief Furnace Company et al.

   Broyles, C. J.

1. Conceding (but not deciding) that the court in a damage suit in which the Knights of the Ku Klux Klan were defendants, erred in denying the timely motion of the plaintiff to purge the jury of all members of that organization, the error is not shown to have been prejudicial to the plaintiff’s cause, since the record fails to disclose affirmatively that any one of the jurors who passed upon the case was at the time of his service on the jury a member of the Ku Klux Klan. The alleged newly discovered evidence contained in the affidavits submitted to establish the contention that three members of the jury were at the time of their jury service members of the Klan were not sufficient to affirmatively show that fact. Furthermore, one of the affidavits was made by a person who had been one of the jurors in the case. Such an affidavit, under repeated rulings of this court and the Supreme Court, can not be considered. “As a matter of public policy, a juror can not be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” Bowden v. State, 126 Ga. 578 (55 S. E. 499); Thompson v. State, 4 Ga. App. 649 (5) (62 S. E. 99). Eurthermore, the supporting affidavits required by section 6086 of the Civil Code were fatally defective in that they failed to give the names of the associates of the witnesses rtpon whose newly discovered evidence a new trial was sought. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. The ruling upon the admissibility of evidence, set forth in the fifth special ground of the motion for a new trial, was not error for any reason assigned.

3 The refusal of the written'request to charge, set out in the seventh special ground of the motion, was not error, the requested charge being substantially covered by the charge given.

4. Exception is taken to the following excerpt from the charge: “If an employee should go upon the premises of another to improve the premises, and if such employee had equal means of determining and knowing whether the premises were dangerous or not with the owner or a contractor who might engage him to go there and do the work, if he had equal means of ascertaining- whether or not the premises were unsafe, —means equal to those possessed by the owner or contractor who employed him, — and he should go upon the premises with equal means of knowing it, and neither he nor the owner nor the contractor knew of any unsafe condition, and ho should afterwards become injured as the result of a defect that existed there, then he could not recover on account of any defect unknown to the owner, as against the owner, or unknown to the contractor, as against the contractor, if the one injured had equal means of ascertaining whether or not such a defect actually existed.” This excerpt from the charge was applicable to the facts of the case and was not error for any reason assigned. See, in this connection, Stewart v. Seaboard Air-Line Railway, 115 Ga. 624, 628 (41 S. E. 981); Huey v. Atlanta, 8 Ga. App. 597 (3), 604 (70 S. E. 71); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Fulton Ice and Coal Co. v. Pece, 29 Ga. App. 507, 519 (116 S. E. 57); Castleberry v. Fox, 29 Ga. App. 35 (113 S. E. 110).

Decided April 10, 1928.

Ben. J. Conyers, J. K. Jordan, for plaintiff.

Candler, Thomson & Hirsch, W. B. Cody, Hewlett & Dennis, Paul 8. Etheridge, contra.

5. The last special ground of the motion for a new trial shows no cause for a reversal of the judgment. Under all the facts of the ease the failure of the court to charge as there set out was not error, in the absence of a proper written request.

6. The general grounds of the motion for a new trial, not having been referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18713.
    JOHNSTON v. THE STATE.
    Decided April 10, 1928.

      J. R. Hutcheson, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, contra.
   Bloodworth, J.

A lady who was running a swimming pool grew suspicious of a “green Buick roadster,” and asked the deputy sheriff to come down to the pool and capture it. In company with two friends he went there and watched. The defendant drove up in his car, — a car which filled the description given by the lady, — and, with some of the other occupants o£ the car, left it and walked down to the dance hall, leaving others in the car. Soon after the accused went to the dance hall “a good many people came to this car and went away.” The deputy sheriff could not see what was happening in the car. He swore that he finally went to it and “the parties in it began to run from the car and stick something in their pockets. One fellow stuck a bottle and got away, and one fellow jumped over my head with a fruit-jar and got away. . . After this man jumped out with the fruit-jar we searched the car and found about a gallon and a half of liquor in a can and a quart bottle and two small bottles, and there were empty bottles; and we found some sugar and a glass and a funnel in there'. . . The funnel and glass smelled like whisky. . . This place I speak of is just a place that you could put anything in, tools, or liquor, or a satchel, or anything. It was not behind the back, it was between the cushion and the wood; the cushion folded over the place where the liquor was. I said the sugar was in there too.” Another witness swore: “In addition to what Mr. Mosley had already found, I found four coca-cola bottles full of whisky and a pint bottle in the pocket of the door.”

When all the circumstances are considered, there was sufficient evidence to authorize the jury to conclude, beyond a reasonable doubt, that the accused was guilty of possessing whisky.

Judgment affirmed.

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


text:
    28714.
    JOHNSON v. CITY OF ATLANTA.
    Decided April 10, 1928.

      B. L. Johnson, pro se. J. L. Mayson, C. 8. Winn, contra.
   Broyles, C. J.

The plaintiff in error obtained the writ of certiorari to review a judgment of the recorder’s court of the City of Atlanta. The petition for certiorari failed to show the execution of a proper pauper’s affidavit, but it was recited in the petition that “a certiorari bond was also given as required, a copy of which is also hereto annexed and petitioner asks that same be made a part of this petition for certiorari.” However, the copy of the bond attached to the petition was not certified by the clerk of the recorder’s court as being a true copy of the bond given; nor was there attached to the petition a certificate of the clerk showing that the bond was filed with him and had been approved and accepted by him. In view of these defects in the petition, upon the hearing of the certiorari the judge of the superior court did not err in overruling it. Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), and cit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    18719.
    GOLDIN v. THE STATE.
    Decided April 10, 1928.

      E. 8. Griffith, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, contra.
   Luke, J.

The indictment charged that on July 5, 1927, Dave Goldin and Thomas Harper committed an assault with intent to murder upon George Beel by driving a Ford coupé automobile against him. The jury found Goldin guilty of the offense charged, the court overruled the motion for a new trial, and the defendant excepted.

Mable Felkins testified substantially as follows: On July 5 she and her uncle, George Reel, were walking to Atlanta on the highway running from Bremen towards Atlanta. As they were passing a house two men “hollered,” one saying, “Wait a minute there, buddy.” They paid no attention to the remark and continued to walk down the road. The men got in an automobile, and, overtaking the pedestrians, asked them to ride. Reel politely declined the invitation. The men, who were in a Ford eoupé, ran on down the road about one hundred yards and stopped. When they came up with the men, Goldin, holding a long knife in his hand, told Reel he could not go another step. Reel replied that he was going on about his business. Goldin then motioned to Harper, who told the witness to get in the car. She ran down the road, with her uncle following close behind her. Goldin said he would “get the sons of bitches.” The two men jumped in the car and started “with all their speed.” Reel said, “Let’s make it to the railroad, if we can.” Where the incident occured there was a fill in the road. When the car started it was in the middle of the road, but just as the witness jumped into the briars “they dipped in after”. Reel. Witness and her uncle were running as near the edge of the road as they could get, and the tracks of the car were as close to the edge of the road as they could get. Witness had not seen Goldin before, but identified him at the trial.

Dr. M. H. Stephens testified: that he saw Reel after he was struck; that he was unconscious, bleeding from the nose and ears, and had a fractured skull; that it would take considerable force to injure him as he was; that shoving a man down on the road would not likely cause such damage as Reel received, since the road was an ordinary dirt highway; that more than six days after the occurrence Reel was perfectly dormant, and could not be waked up; that a Ford might be an instrument likely to produce death, since “some people are killed that way.”

Bott Barrett testified: that he witnessed the occurrence — “seen the lady in front and the man right behind her,” both running; that as a man on the ground got back in his automobile he said, “I’ll see you again, God damn you, and I wont be long about it;” that “he went on down the highway, and in place of passing them, he whipped around and knocked the old gentleman down,” the lady jumping in the ditch among some briars; that the pedestrians were on the right-hand edge of the highway; that it appeared to the witness that the car knocked the man about twenty feet; that the car never stopped; that the place where it hit the gentleman was right on the edge of the road; that if the defendant had driven his car straight down the road and had not turned suddenly, he would not have hit the man; that after striking the man the defendant turned to pass Mr. Spruell.

J. M. Spruell testified that as he was coming from Atlanta, he heard “hollering,” and saw a man and a woman running, and a Ford car close behind them; that, the car “hit the man and knocked him a good ways, and the woman jumped off of the fill into the briar patch;” that witness stepped the distance, and “it was about eight steps that the car knocked the man;” that blood was “spouting out of his ear,” and he was unconscious; that the girl and the man were “just as close to the right-hand side of the road as they could go without going over, “and the man made no turn to get in the middle of the road;” that the car came back to the middle of the road and slowed down, and then “picked up,” and then went out of sight running very fast; that there “was plenty of room on the other side for the car to pass without striking” the man; that the road was about twenty-five feet wide where the man was struck; and that witness was about fifty yards from the parties when he first saw them.

J. W. Watts testified that “these parties came along about 12:30;” and that he heard cursing at the Summerville home. Pearl Summerville testified : that Goldin and Harper were at her home on the day in question; that she heard Goldin holler to the girl and the old man that he would let them ride; that she did not know whether Goldin was drinking or not, but thought he cursed, a little bit. J. H. Davenport testified that he saw the defendant between two and three o’clock on the day the man was hurt, and that “seemingly he was drinking;” that his face was flushed, but he was orderly.

G. B. Biehards arrested the defendant late in the afternoon of the. day Eeel was hurt, and took him by his home to see his people. The defendant escaped, but was caught again the same afternoon. Witness smelled whisky on the defendant. W. H. Swint testified that he drove the defendant’s car to his house the- day he was arrested; that he thought he was drinking — found a pint bottle half full of whisky in the car.

The defendant stated the girl and Eeel were ahead of him on the right side of the road, and that, just before he overtook them, Eeel undertook to cross the road; that he tried to avoid hitting him in every way possible, but could not do so; that he thought the car only scraped the man, and did not know that he was hurt, or he surely would have stopped; that, furthermore, he didn’t know but what “the man might get up shooting at him;” that he had no knife, and was not drinking; that Mr. Spruell was almost upon him, and he “had to make connection there to miss that man and miss these people;” and that the “accident” was unavoidable.

Unquestionably the jury had the right to believe that after vilely cursing and threatening the young woman and the man, the defendant -deliberately ran them down with his automobile, and intentionally struck the man with sufficient force to knock him twenty feet, fracture his skull, cause blood to flow from his ears and nose, and render him unconscious for several days. The defendant’s statement that the occurrence was unavoidable because Eeel tried to cross the road in front of him is unequivocally contradicted by several witnesses, and no witness confirms his statement to that effect. The evidence supplies every ingredient necessary to constitute an assault with intent to murder, and it is hard to conceive how the jury could have found him guilty of any lesser offense.

The first ground of the amendment to the motion for a new trial complains that the court failed to charge the law of assault and battery. If the evidence for the State is true, the defendant was guilty of assault with intent to murder, and nothing less. If all the evidence in the case is false, and the defendant’s statement is true, the occurrence was an accident. There appears to be no middle ground — no place for an assault and battery. In the case of Kendrick v. State, 113 Ga. 761 (39 S. E. 286), Justice Eish, speaking for the entire court, lays down the rule that “in a case where the evidence for the State, if believed by the jury, demands a verdict of guilty of the crime charged in the indictment, and the evidence for the accused, if accepted as true, demands an absolute acquittal, a verdict finding him guilty of a lesser offense of the same general character is contrary to evidence and to law." We deem this rule applicable to the case at bar, and hold that the court did not err in not charging the law of assault and battery.

Grounds 2 and 3 of the amendment to the motion for a new trial,, the first complaining of the admission of evidence that the defendant was drinking at about five o’clock on the day of his arrest, and the second of the admission of evidence that he was drinking and had whisky in his automobile when caught about five hours after striking the man with his car, are without merit.

Judgment affirmed.

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


text:
    18720.
    PRATT v. THE STATE.
    Decided April 10, 1928.

      Homer Watkins, for plaintiff in error.

      George JD. Anderson, solicitor-general, contra.
   Bloodworth, J.

The indictment charged N. A. Pratt with the offense of “misdemeanor," for that he did “wilfully and maliciously injure and destroy a certain wooden bridge over and across the Coosawattee river, about five miles below Ellijay, Ga., said bridge being the private property of W. D. Ralston and E. W. Watkins, said bridge being of the value of $200." The judge did not err in holding that the indictment charged the accused with having committed a felony, nor “in forcing him to go to trial as for a felony, when the indictment charged a misdemeanor.” The indictment shows that it was based on section 750 of the Penal Code of 1910, and, therefore, charged a felony. “It is not the name, but the description of the crime, which characterizes the offense charged." Lipham v. State, 125 Ga. 52 (53 S. E. 817, 114 Am. St. R. 181, 5 Ann. Cas. 66); Lummus v. State, 17 Ga. App. 414 (81 S. E. 147), and cit.

Grounds 2 and 3 of the amendment to tho motion for a new trial allege merely that the court “erred” in giving to the jury certain specified instructions. Such an assignment of error will be considered only as far as is necessary to ascertain whether or not each of the excerpts from the charge contains a correct abstract proposition of law. Anderson v. Southern Railway Co., 101 Ga. 501 (4, 4a) (33 S. E. 644); Bullock v. State, 115 Ga. 241 (41 S. E. 609). Instead of each showing such a proposition, each shows an attempt to make a concrete application of law to facts. This being true, the general rule just quoted is not applicable, and the assignments of error are too general, too indefinite; they do not specify what the defects in these excerpts are, do not point out the specific vice in each charge. This they should do, and, failing in this, they can not be considered. Van Dyke v. Van Dyke, 31 Ga. App. 67 (4) (119 S. E. 436); Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440); Riddle v. Sheppard, 119 Ga. 930 (3) (41 S. E. 201).

Grounds 4 and 5, based upon refusal of the judge to give to the jury certain requested instructions, are not in proper form for consideration, as in neither of them is it alleged that “the requested instructions were pertinent and applicable to the facts of the case.” Ward v. Gardner, 35 Ga. App. 569 (2) (134 S. E. 346). Nor does it appear that the requests to charge were “presented to the judge before the jury retired to consider their verdict.” Burch v. State, 34 Ga. App. 119 (2) (128 S. E. 587).

Ground 6 raises no question for determination, as it does not show what objection was made to the admission of the evidence when it was offered, nor that the objection was then urged. Jenkins v. Jenkins, 150 Ga. 77 (134 S. E. 346); Shirley v. Byrd, 162 Ga. 598 (134 S. E. 316); Gray v. State, 33 Ga. App. 596 (121 S. E. 414).

The 1th special ground of the motion alleges that the court illegally withheld from the jury certain evidence. It does not allege that such illegal withholding was prejudicial or harmful in any way to the accused; nor does it appear that the excluded testimony was material and would have benefitted the complaining party. To authorize a new trial, grounds of a motion must show not only error but injury; and, no injury being alleged in this ground, it is without merit. Brown v. Atlanta, 66 Ga. 76; Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545).

There is an abundance of evidence to support the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broíjles, C. J., and Luke, J., concur.


text:
    18723.
    Bishop v. The State.
    Decided April 10, 1928.

      B. A. McGrow, for plaintiff in error.
    J. F. Hatchett, solicitor, contra.
   Broyles, C. J.

The motion for a new trial was based upon the usual general grounds only; the verdict was authorized by the evidence, and the denial of the motion was not error.

Judgment affirmed.

Lulce and Bloodworlh, JJconcur.


text:
    18727.
    HAIRE v. THE STATE.
    Decided April 10, 1928.
    P. M. Anderson, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Luke, J.

Curtis Haire was convicted of stealing a bull of the value of $20. The substance of the evidence follows: W. S. Mosley owned a brindle bull which, with his other cattle, ranged near where the defendant and several others lived. The defendant and Coy Todd and Tom Brown lived within a few hundred yards of each other. Near them was a thirty-acre field where the bull was last seen, with other cattle. The field was a neighborhood pasture and the gate was usually open. • One Hodges testified: that the defendant and Coy Todd sold him four quarters of what ho judged to be a bull from the deep-red color of the meat; that each quarter weighed about seventy pounds; that AAhen he proposed to buy the hide, the parties told him that they usually shipped their hides; that the defendant said he might bring him the hide later, but did not do so, and that the meat sold him was of a stall-fed animal. The prosecutor testified that his bull Aveighecl about seventy or eighty pounds to the quarter, had short, snub horns, and was about four years old; and that he had investigated at the four nearest shipping points, but found no trace of the hide. A witness said he saw the brindle bull in the said field after the defendant and Todd were being prosecuted. One Avitness testified that the defendant owned no bull. The defendant stated that he raised the bull that he sold, and that it belonged to him.

The headnote does not require elaboration. See Penal Code, § 1010; Wellman v. State, 100 Ga. 576 (28 S. E. 605).

Judgment reversed.

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


author: Bloodwobth, J,

text:
    18728.
    HERNDON v. THE STATE.

      Decided April 10, 1928.

      D. E. Griffin, A. J. McDonald, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Bloodwobth, J,

The indictment contained two counts. To each count there were demurrers. The jury found the accused guilty of “involuntary manslaughter in the commission of an unlawful act.” Because of this verdict it is unnecessary to pass upon the demurrer to the first count.

For no reason alleged did the court err in overruling the demurrers to the second count.

Grounds 1, 4, 9, 10, and 13 of the amendment to the motion for a new trial not having been unqualifiedly approved by the trial judge, this court is not called upon to pass upon them.

In special grounds 2, 5, 11, and 12 of the motion for a new trial counsel for the plaintiff in error objected to the admission of certain evidence as irrelevant and immaterial. Such objections are too general to present anything for determination by this court. Martin v. State, 35 Ga. App. 575 (2a) (134 S. E. 185), and cit.; Hayes v. State, 36 Ga. App. 668 (1e) (137 S. E. 860). For no other reason urged in ground 2, when it is considered in the light of the statement of the judge when he admitted this evidence, should a new trial be granted.

Should we concede (and we do not) that the court erred in admitting that portion of the evidence of witness Boberts which is copied in ground 3 of the motion, this will not require the grant of a new trial, for practically the same evidence went to the jury, without objection, from witnesses Petty and Malone. Louisville & Nashville R. Co. v. Lovelace, 26 Ga. App. 287 (3) (106 S. E. 6), and cit.

Special ground 6 is incomplete. It does not appear how the evidence set out therein was material or how its admission could have been harmful to the defendant. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523); Wilson v. McConnell, 36 Ga. App. 767 (1a) (138 S. E. 244).

Special grounds 7 and 8 complain of the exclusion of certain evidence. If this was error, it was cured by admitting practically the same evidence later.

The excerpts from the charge, of which complaint is made in grounds 14, 15, 18, and 19 are not erroneous when they are considered in the light of the remainder of the charge.

Grounds 16 and 17 complain of the failure of the court to give to the jury certain instructions touching confessions. The judge having charged on confessions, if fuller instructions in reference thereto were desired a proper and timely written request therefor should have been made.

There being no evidence that the death of the deceased was caused by blood-poisoning, the judge did not err in failing to instruct the jury on such a theory.

Complaint is made in ground 21 that the judge did not give to the jury instructions appropriate to the theory that the wounds in question were self-inflected. If such instructions were desired, a timely and legal written request therefor should have been made. In the absence of such a request it is not incumbent on the trial judge to call the attention of the jury to such a theory and to instruct them that they should consider such evidence in determining whether that theory is sustained or not. Williams v. State, 120 Ga. 870 (48 S. E. 368); Southern Railway Co. v. Hill, 139 Ga. 550 (5) (77 S. E. 803); Edge v. Calhoun National Bank, 155 Ga. 826 (2), 827 (118 S. E. 359), and cit.; Weldon v. State, 21 Ga. App. 330 (1a) (94 S. E. 326), and cit.

The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

■Judgment affirmed.

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


text:
    18731.
    HARRELL v. THE STATE.
    Decided April 10, 1928.

      Hollis Fori, for plaintiff in error.

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

Having been convicted of possessing and controlling intoxicating liquors, Jesse Harrell made a motion for a new trial based solely upon the general grounds.

In 1926 S. M. Cantrell lived on a farm belonging to Mrs. Harrell, the defendant’s mother. Mrs. Harrell was living in Atlanta, but had a room in the residence on the farm. The defendant “worked out of Atlanta,” but would occasionally come to the place and stay a day or two at a time,. occupying a room in Cantrell’s residence. C. C. Bush testified: that in September, 1926, he found a still on Mrs. Harrell’s place; that a negro, Willis, who was getting wood close by, ran away; that he (the witness) was at the still site in the afternoon before he destroyed it, and no still was there; that fresh wagon-tracks led from the yard of the Harrell house to the still site, and that he found the wagon that made the tracks; that the still was not in operation, but that scuppernong beer was being-used, and that he found two barrels of it that had fermented; that there was a scuppernong arbor on the place and all the grapes had been gathered. The defendant admitted that he occasionally visited the place in 1926, but denied all knowledge of whisky, still, or mash. C. C. Brrsh testified: that on August 14, 1927, he found, at a distance of about three-quarters of a mile “from the house in which Mr. Harrell lives” and on Mrs. Harrell’s place, a still in operation, with warm whisky in the worm; that a negro ran away from the still, and that the defendant was about ten feet from the still, sitting on a keg containing a gallon of whisky; that he found fifty gallons of alcoholic beer; and that the defendant stated that he was looking for hogs. The defendant denied all knowledge of still, beer, or whisky, and said that he saw smoke, and, knowing that fire had often started from a sawmill on his mother’s place, walked over to where he was found, to see if fire had been started in the woods. He saw two negroes run towards the branch, and was standing looking (not sitting on any keg) when Mr. Bush came up.

In the night of Sunday, August 14, 1927, C.’ C. Bush went to the house of the negro, Willis, in Richland. He testified that he found only two people on the premises, the defendant, sitting on the back steps, and the negro, Willis, in the house; that the defendant, who was drunk, was sitting about ten feet from some whisky found under the eaves of the house, and that a lard-can containing a pint-bottle that had some whisky in it was on the steps by the defendant. In regard to this transaction, the defendant denied being drunk, and stated that he had gone to the negro’s house to get him to pull some fodder.

Counsel for the plaintiff in error cites the following cases: Allen v. State, 25 Ga. App. 331 (103 S. E. 101); Cummings v. State, 25 Ga. App. 427 (103 S. E. 687); Leatherwood v. State, 27 Ga. App. 34 (107 S. E. 422); Harris v. State, 28 Ga. App. 463 (111 S. E. 686); McCarty v. State, 28 Ga. App. 625 (113 S. E. 31); Wilson v. State, 32 Ga. App. 427 (123 S. E. 623); Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Graham v. State, 150 Ga. 411 (104 S. E. 248); Penal Code (1910), § 1010. Most of the foregoing cases are cases of divided responsibility, and the facts of the others differentiate them from the ease at bar. The case chiefly relied on by counsel is Allen v. State, supra. In that case, “all during the day,” people walking and riding in automobiles were going to and from the place where the whisky was found, and the defendant was sitting “on, or in reach of,” a keg of whisky in plain view of the road. Furthermore, the defendant’s statement that he was waiting to buy whisky from Will West was corroborated by the testimony of a witness that he saw the defendant and Will West together, and saw Will come down the hill and engage in conversation with others.

We are confident that the case at bar discloses an accumulation of circumstances that warranted the jury in concluding that the facts were consistent with the hypothesis of guilt, and excluded every other reasonable hypothesis.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., conowr.


author: Bloodwoeth, J.

text:
    18733.
    KENNEDY v. THE STATE.
    Decided April 10, 1928.

      0. 0. Dorsey, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Bloodwoeth, J.

It is undisputed that the judge who presided at the trial of this ease had acted as solicitor-general and had drawn the indictment under which the accused was being tried. It is also undisputed that neither the accused nor his counsel had agreed in writing that this judge might preside and try the case. Section 4642 of the Civil Code of 1910 provides that “No judge or justice of any court . . can sit in any cause or proceeding in which . . he has leen of counsel. . . Provided, that in all cases in which the presiding judge of the superior court may have been employed, as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside.” (Italics ours.) IJnder this provision of the law the judge who presided was disqualified, and upon a direct attack, on this ground, he should have so declared himself. “From whatever source the disqualification to preside in a ease may arise, the effect, when such disqualification exists, is to divest jurisdiction, and the action taken is coram non judiee, and void.” Inasmuch as the presiding judge in the instant case was disqualified, and his disqualification was not waived, the trial went for naught. See Faulkner v. Walker, 36 Ga. App. 637, 638 (137 S. E. 909), and cit.

Judgment reversed.

Broyles, G. J., and Duke, J., concur.


text:
    18734.
    Williamson v. The State.
    Decided April 10, 1928.
   Broyles, C. J.

The defendant’s motion for a eontinnanee, based upon the absence of two material witnesses, measured up (so far as one of the absent witnesses was concerned) to all the requirements of the statute (section 987 of the Penal Code of 1910), and the denial of the motion was error. That error rendered the further proceedings in the case nugatory.

Judgment reversed.

Lulce and Bloodworih, JJ., concur.

S. F. Memory, for plaintiff in error.

8. Thomas Memory, solicitor, contra.


text:
    18740.
    MILLS v. THE STATE.
    Decided April 10, 1928.
    Rehearing denied May 15, 1928.

      E. F. Combs, for plaintiff in error.

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

Having been convicted of disposing of a part of the cotton crop grown by Mm as a half-cropper, without the consent of the landlord and before the landlord had received his part of the crop, and had been paid for advances made by Mm to the cropper for making the crop, Ed. Mills excepted to the overruling of his motion for a new trial, based upon the general grounds and upon seven special grounds.

The first special assignment of error is that the court erred in failing to charge that there was no crime committed unless it was shown that the landlord had failed to get his share of the entire crop and payment in full for all necessary advances made to the cropper for supplies to make the crop during the year in which it was raised. The court charged section 729 of the Penal Code as follows: “Any cropper who shall sell or otherwise dispose of any part of the crop grown by him, without the consent of the landlord, and before the landlord has received his part of the entire crop and 'payment in full for all advances made to the cropper in the year' the crop was raised, to aid in making it, shall be guilty of a misdemeanor.” Furthermore, the court instructed the jury that the burden was upon the State to prove every material allegation of the indictment, which contained every element of the offense charged; and, further, that “To this bill of indictment the defendant has entered his plea of 'not guilty/'and that raises the issue which you gentlemen are empanelled to try.” Olgarly this assignment is without merit, especially in view of the failure to make any request to charge. See Byrd v. State, 28 Ga. App. 244 (2) (110 S. E. 758); Parks v. State, 24 Ga. App. 243 (100 S. E. 724); Faison v. State, 13 Ga. App. 180 (79 S. E. 39).

The second special assignment of error needs no extended comment. It is practically the same as the first special assignment. The court correctly charged the defendant’s contentions, and, without request, further elaboration of them was not required. This assignment indicates no error.

The third special assignment is that the court failed to charge that the burden rested upon the State to show, beyond a reasonable doubt, the defendant’s intention to commit a crime. There was no request so to charge, and the court charged fully upon the burden of proof and the presumption of innocence. The charge indicated was not required, and there was no error in failing to give it."

The fourth special exception is so similar to the first and second exceptions, supra, that it warrants no discussion. For reasons already stated, it is void of merit.

The fifth special ground is that the court erred in admitting in evidence a confession not shown to have been freely and voluntarily made. The evidence in regard to this confession follows: O. M. Bounds testified that he went to defendant’s house, made defendant get in his car, and started to Washington; that there had been stealing going on, and that he had whipped “some of them about it;” that after getting two or three miles up the road he asked defendant what he meant by carrying his cotton off; that upon defendant’s saying he had carried no cotton off, lie called defendant a liar; that defendant still maintained he had not taken any cotton; that some time afterwards defendant asked witness what he was going to do with him, and witness replied that he was going to carry him to jail — that he knew he had gotten away with some of his cotton; that defendant then confessed that he had gotten a basket of cotton; that witness then carried him to jail; and that the confession was freely and voluntarily made. Under these facts, the question as to whether the confession was freely and voluntarily made was for the jury. Dawson v. State, 59 Ga. 333. See also Walton v. State, 31 Ga. App. 158 (120 S. E. 20), and cit.; Smith v. State, 139 Ga. 230 (76 S. E. 1016); Sledge v. State, 24 Ga. App. 698 (102 S. E. 31).

Ground 6 of the amendment to the motion for a new trial is similar to the foregoing ground, and is controlled adversely to the plaintiff in error by the authorities there cited. See Penal Code (1910), § 1032. In this last confession there was clearly no hope of benefit held out to defendant, nor could there have been any fear of injury.

The last special ground, complaining of the court’s failure to charge the law of circumstantial evidence, is without merit, since the case did not depend entirely upon that sort of evidence, and no request to charge was made in this regard.

In view of the defendant’s confessions and the testimony of his landlord, and that of his brother that he saw defendant hauling cotton by his house on the night of the alleged offense, we can not say that the verdict of guilty was not supported by the evidence, and the court did not err in overruling the general grounds of the motion for a new trial.

Judgment affirmed.

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


author: Blood worth, J.

text:
    18741.
    Remson v. The State.
    Decided April 10, 1928.
    Rehearing denied Mat 15, 1928.
   Blood worth, J.

1. In the brief of counsel for the plaintiff in error he did not argue the sole special ground of the motion for a new trial, nor was there any general insistence on all the grounds. Hence this court can not consider the special ground.

2. The evidence was sufficient to support the finding of the jury. The trial judge approved the verdict, and did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.

H. E. Combs, for plaintiff in error.

M. L. Fells, solicitor-general, contra.


text:
    18745.
    Holder v. The State.
    Decided April 10, 1928.
    Rehearing denied May 15, 1928.

      Eli B. Hubbard, for plaintiff in error.

      ■Joseph B. Buhe, solicitor-general, contra.
   Broyles, C. J.

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

Judgment affirmed,

[sake and Bloodworth, JJ., concur.


text:
    18753.
    Akin v. The State.
    Decided April 10, 1928.

      C. B. McGarity, for plaintiff in error.

      B. W. Ragsdale, solicitor-general, contra.
   Luke, J.

The still in active operation on the defendant’s land, the finding of fifteen gallons of liquor in a barrel just above it, the evidence that the defendant carried to the still several buckets of water from a near by branch and two “turns of wood,” his flight on the approach of the officers, and his explanation that his boy induced him to go “over there,” all together abundantly sustain his conviction of manufacturing whisky; and this is true although there was evidence of his good character, and evidence that his son owned the still and was present at .the time. The court properly overruled the motion for a new trial based solely upon the usual general grounds. See Lindsay v. Slate, 32 Ga. App. 74 (122 S. E. 649), and cit.

Judgment affirmed.

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


text:
    18754.
    COHRAN v. THE STATE.
    Decided April 10, 1928.

      J. B. Hutcheson, G. B. McGarity, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, contra.
   Bloodworth, J.

1. The undisputed evidence for the State showed that a gallon and a half of whisky was found in the defendant’s residence and in a room occupied by his mother. The evidence for the defendant and his statement to the jury amply authorized them to find that the whisky was kept there by his mother with his knowledge and consent, and the circumstances were sufficient to exclude every reasonable hypothesis but that of his guilt. That part of the defendant’s statement to the jury in which he declared that he had no control over the room occupied by his mother was contrary to the evidence in the case (the house being his and he being the head of the family), and was evidently disbelieved by the jury.

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

Judgment affirmed.

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


text:
    18755.
    Smith v. The State.
    Decided April 10, 1928.

      J. R. Hutcheson, G. B. McGarity, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial, which was based upon the usual general grounds only.

Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    18758.
    DuBose v. The State.
    Decided April 10, 1928.
   Luke, J.

An essential element of tlie.offense of violating tlie “labor-contract act” (section 715 of the Penal Code), and one which the State must prove, is that the accused, at the time he received the money or other thing of value in consideration of the making of the contract, had formed the deliberate and fraudulent intent to cheat and swindle the other party to the contract. Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022). Under this ruling and the facts of the instant case, the defendant’s conviction was unauthorized, and the refusal to grant him a new trial was error.

Judgment reversed.

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

U. J. Lawrence, for plaintiff in error.

Wade H. Watson, solicitor, contra.


text:
    18759.
    ROWLAND v. THE STATE.
    Decided April 10, 1928.

      J. B. Moore, William B. Kent, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Bloodworth, J.

The judge of the city court of Jesup presided in the city court of Baxley at the trial of the plaintiff in error. Plaintiff in error made a “motion for a disqualification” of the judge of the city court of Jesup, on the ground that the judge of the city court of Baxley “was in open court and not disqualified in any way from the trial of the said case.” This motion was overruled, and in a ground of the motion for a new trial this was alleged to be error. The record does not show that the judge of the city court of Baxley was disqualified or was providentially prevented from trying the case. In fact, the record shows that he; as stenographer, “reported the case and was in open court all through the trial,” and that the judge of the city court of Jesup stated that the judge of the city court of Baxley had engaged him “to hold this term of court to try some disqualified cases and others, this particular case not disqualified, but on the calendar at this term.”

By the section 4828 of the Civil Code (1910), a judge of one city court can preside in another city court only in cases which the judge of the latter court “is disqualified or is providentially prevented from trying.” In Ga., Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276 (61 S. E. 505), it was held: “If the judge of the city court is disqualified, any other city court judge may preside in his stead.” In the headnote of Baldwin v. Ragan, 6 Ga. App. 529 (65 S. E. 335), it was said: “Under the act of 1899 (Acts 1899, p. 48) judges of the city courts are authorized and empowered to preside in the courts of one another interehangably, and while so presiding to try all cases there pending which the judge of the court is disqualified or providentially prevented from trying. Other cases the judge so presiding may, by consent of the parties, try and determine.” In discussing this ease Chief Judge Hill said (pp. 530, 531): “Now the judges of the superior courts of this State are authorized to preside in the courts of one another and perform all the functions of the judge of such superior court when so presiding. The act above quoted seems, in the first part of the act, to give the same right to judges of the city courts of this State, but in the latter part of the act it limits the right of the judge of the outside city court to perform any functions of the judge of the city court in which he may be presiding, except where the judge of the latter court is disqualified or is providentially prevented from trying the case. Construing the entire act, we think that under it the judges of the city courts of this State may exchange courts, and preside for one another, and that they have the right to try all cases in the court in which they are called upon to preside which the judge of the court is disqualified or providentially prevented from trying, and may also, while so presiding, hear such cases as may be submitted to them by consent of the parties, although the judge of the court is not disqualified or providentially prevented from trying them. Of course, parties can not by consent give jurisdiction to a court which has none. Civil Code [of 1895], § 5079.”

In Ga., Fla. & Ala. Ry. Co. v. Sasser, 130 Ga. 397 (60 S. E. 998), Presiding Justice Evans said: “The General Assembly can provide that a city court may be held by a person other than the judge of that court, under given circumstances. Welborne v. State, 114 Ga. 794 (8), 823 (40 S. E. 857). While discharging the specific duties, he sustains to that court the relation of judge. The act of 1899 only undertakes to provide that the judge of one city court may preside in another city court where the judge of the latter is disqualified, or is providentially prevented from trying the ease.” It will thus be seen that unless the judge of one city court is disqualified or providentially prevented from trying a case in his court, the judge of another city court has no lawful authority, to preside therein, and “with such a judge presiding the entire proceeding is a nullity and will be so treated whenever judicially brought in question by the accused.” This quotation is from Wells v. Newton, 101 Ga. 144 (28 S. E. 641), a case in which a judge of a city court established upon the recommendation of a grand jury presided in the superior court. In that case the Supreme Court further said: “There being no judge in that court authorized to preside therein at the time that the alleged trial took place, the case has never been tried according to law, and the whole proceeding was a nullity. No waiver, express or implied, could give to this proceeding the sancity .of a legal investigation; and the fact that this court upon two occasions, when the right of the judge of the city court to preside was not brought in question, passed upon bills of exceptions in the case certified by him, can not be urged in order to give life to that which never had, and never could have, a legal existence ” The 4th headnote in the case of Ivey v. State, 112 Ga. 175 (37 S. E. 398), is as follows: “Neither paragraph 1 of section 5, article 6 of the constitution, . . nor any statute of this State confers upon a judge of the superior court authority to preside in a city court, save only in cases wherein the judge of that court is disqualified to preside. When, therefore, a superior-court judge undertakes to preside in a ease pending in a city court, which the judge thereof is qualified to try, the so-called trial is a nullity and the result of it absolutely void.” In the opinion (pp. 180, 181) Chief Justice Simmons said: “The constitution of this State provides (art. 6, see. 5) that 'In any county within which there is, or hereafter may be, a city court, the judge of said court and of the superior court may preside in the courts of each other in cases where the judge of either court is disqualified to preside. The record of the present case discloses that the city court of Macon and the superior court of Bibb county were in session on the same day; and that the judge of the superior court was disqualified to try a certain case pending in his court, and, under the above recited section of the constitution, called upon the judge of the city court to preside in the superior court and try the disqualified case. The judge of the city court left the bench of his court and went upon the bench of the superior court to try the case; whereupon the judge of the superior court went upon the bench of the city court and called the case of The State v. Ivey. The judge of the city court was not disqualified to try Ivey. The judge of the superior court presiding, Ivey was tried and convicted by a jury in the city court. The trial of the disqualified case in the superior court having been finished, the judge of the city court returned to the city court, and the judge of the superior court returned to his court. Thereupon the judge of the city court proceeded to sentence Ivey, who had, as just stated, been found guilty by the jury while the judge of the superior court was presiding in the city court. When sentence was about to be pronounced, Ivey, through his counsel, objected thereto, on the ground that the judge of the superior court had no power or authority to preside in the trial of -Ivey in the city court, the judge of that court not being disqualified. The judge of the city court overruled the objection and pronounced sentence and judgment upon the verdict of the jury, had while the superior court judge was presiding. To this judgment Ivey excepted and brings the case here for review. We think the exception was well taken. We think that the clause of the constitution above quoted gave the judge of the superior court no power to preside at the trial of Ivey. Under this clause, the judge of either the superior or city court may preside in the court of the other only in cases in which that other is disqualified. If the judge of the city court had been disqualified to try Ivey, the judge of the superior court could have presided at the trial, and the judge of the city court could at the same time have presided in the superior court in the case in which the superior court judge was disqualified. Neither can preside in the other’s court except in a case in which the other is disqualified. This being true, the trial of Ivey was a nullity, the verdict illegal, and there was nothing upon which the judge of the city court could predicate his judgment.”

The foregoing rulings are based upon the proposition that a judge has no legal right to preside in another court than his own, except where the right is given him by express statutory authority or where, in civil cases, the disqualification of the judge is waived. See Shuford v. Shuford, 141 Ga. 408 (9) (81 S. E. 115); Welborne v. State, 114 Ga. 794 (8) (40 S. E. 857); Allen v. State, 102 Ga. 619 (29 S. E. 470); Castleberry v. State, 68 Ga. 49; Bedingfield v. First National Bank, 4 Ga. App. 197 (3) (61 S. E. 30); Garrett v. State, 18 Ga. App. 360 (3) (89 S. E. 380); Little v. McCalla, 20 Ga. App. 324 (4) (93 S. E. 37); Faulkner v. Walker, 36 Ga. App. 638 (137 S. E. 909), and cit.

Judgment reversed.

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


text:
    18760.
    Rowland v. The State.
    Decided April 10, 1928.

      J. B. Moore, William B. Kent, for plaintiff in error.

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

1. A judge of one city court can preside in another city court and try therein all eases which the “home” judge is disqualified to try or providentially prevented from trying. However, the visiting judge has no authority to try a case which the “home” judge is not disqualified to try or providentially prevented from trying, unless both parties to the cause consent to such trial. Civil Code (1910), § 4828; Ga., Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276 (61 S. E. 505); Baldwin v. Ragan, 6 Ga. App. 529 (65 S. E. 335); Rowland v. State, 38 Ga. App. 131 (142 S. E. 917).

2. Under the above-stated ruling and the facts of the instant case, the judge of the city court of Jesup, presiding in the city court of Baxley, had no authority to try the ease, and his refusal to disqualify himself was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18763.
    Crummey v. The State.
    Decided April 10, 1928.

      Vara A. Majette, for plaintiff in error.

      Raymond Pierce, solicitor, W. G. Thomas, contra.
   Luke, J.

The evidence in this case supports the verdict; the charge of the court was not subject to any criticism made of it in the special assignments of error; and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


author: Bloodworti-i, J.

text:
    18764.
    Stone v. The State.
    Decided April 10, 1928.

      Eli B. Hubbard, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Bloodworti-i, J.

There is no merit in any of the special grounds of the motion for a new trial; the evidence supports the verdict, and the judge did not err in refusing to grant a new trial.

Judgment affirmed.

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


text:
    18767.
    Dennis v. The State.
    Decided April 10, 1928.

      G. L. Dickens, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Broyles, C. J.

1. In .view of the notes of the trial judge incorporated in the first, second, and third special grounds of the motion for a new trial, those grounds are without merit.

2. The remaining special ground of the motion for a new trial is not complete and understandable within itself, and therefore can not be considered by this court.

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

Judgment affirmed.

Luke and Bloodtuorth, JJ., concur.


text:
    18768.
    GODBOULT v. THE STATE.
    Decided April 10, 1928.

      J. P. Tomlinson, for plaintiff in error.
   Luke, J.

The defendant was convicted of a simple assault upon a white girl, whose testimony at the trial was substantially as follows: At seven or seven-thirty o’clock, early in the morning of November 11, while she was going to her work, she met the defendant, a negro, in front of the picture show in Adel, Ga. As he came near her, or was passing her, he said: “Hello, honey, you didn’t know I love you, did you?” At the time this remark was made she was not looking at him (nor did she look at him afterwards), and did not know whether he was looking at her. There was a little negro girl going up the street about two hundred feet ahead of her, near Eogers’s drug-store, but the defendant’s remarks were made in an ordinary tone of voice, and he could not have been talking to that girl. Witness did not have to move out of his way, and he did not touch her, or, so far as she knew, try to do so, though she thought he could have touched her if he had tried. She did not call a white man whom she saw about two hundred feet away in front of Lastinger’s Pharmacy.

Defendant stated that he was addressing his remarks solely to a negro girl, and not to the “white lady;” and that he told the officers that he was speaking to Este Baker, but that he got the sisters mixed up and meant Aline Baker. An officer testified that Este said she had not seen the defendant on the day in question. Aline testified that she saw the lady about ten or twelve feet behind her in front of the picture show; that as the defendant left the sidewalk and was crossing the street he said to her, “Hello, I love you with that white coat on;” and that he did not say anything to the prosecutrix.

“An assault is an attempt to commit a violent injury on the person of another.” Penal Code (1910), § 95. “To constitute an assault no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so.” Dorsey v. State, 108 Ga. 479 (34 S. E. 136), citing Thomas v. State, 99 Ga. 38 (26 S. E. 748). “An assault is an active threat against the body, an offer of violence endangering the person, which the law redresses even, in its initial stage, thus protecting the physical person more completely.” Chapman v. W. U. Telegraph Co., 88 Ga. 768 (15 S. E. 902, 17 L. R. A. 430, 30 Am. St. R. 183); Copeland v. Dunehoo, 36 Ga. App. 821 (138 S. E. 269). “In every assault there must be an intent to injure. The test is, was there a present purpose of doing bodily injury ? If so, the acts will amount to an assault, otherwise they will not.” Edwards v. State, 4 Ga. App. 169 (60 S. E. 1034). See also Brown v. State, 95 Ga. 481 (20 S. E. 495).

In this case there was unquestionably an opportunity to commit a violent injury on the person of the prosecutrix, but the facts entirely fail to show any intention on the part of the defendant to do so. Neither does it appear that he made any attempt to injure the young lady. The evidence, therefore, did not support the verdict, and the court erred in overruling the motion for a new trial.

The special grounds of the motion are without merit, and need no discussion.

Judgment reversed.

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


text:
    18769.
    JACKSON v. THE STATE.
    Decided April 10, 1928.

      F. H. Colley, Hugh E. Combs, for plaintiff in error.

      Joseph B. Dulce, solicitor-general, contra.
   Bloodworth, J.

The indictment charges Alex Jackson with the offense of a felony, for that he, “with force and arms, did unlawfully, wrongfully, and feloniously, with malice aforethought, make an assault on and upon L. L. Wyatt, a human being, in the peace of the State, with a certain pistol, the same being a weapon likely to produce death, and did with said weapon attempt to shoot and wound the said L. L. Wyatt, and with the intent the said L. L. Wyatt to kill and murder.” The evidence shows that two county policemen “raided” a distillery. At the time of the raid Alex Jaekson was there, and, upon the approach of the officers, ran, and was pursued by one of the policemen, named Wyatt. Wyatt testified: that he caught Jackson, and, when he did, Jackson “turned around and knocked me down, got on top of me and began to try to take my gun away from me, and I couldn’t get him off me, and I began to shoot, and he was trying to take my gun. I got shot in the hand here myself, and I shot him through the side and through the arm, and I saw he was going to get my gun away from me, and I threw it over the wire fence, and he got up off me and got over the fence, and he was on one side of the fence and I was on the other, and I saw he was going to get hold of the gun and I grabbed him, and he dragged me through the fence and got the gun, and I took it away from him after I got over there. . . After I threw the gun over the fence he got up and went over the fence and got the gun, and I took it away from him just as soon as I could get over there. . . As to whether or not in the scuffle the pistol went off and shot me, both of us had hold of it. He was trying to take it away from me and I tried to hold it. . . I shot him in the arm and he turned the gun loose. He got .over the fence and got the pistol, and gave it back to me when' I got hold of it.” The other policeman swore that after the difficulty Wyatt told him that when he caught Alex “he turned around and grabbed him and threw him down on the ground, and we had a tussle, and he was trying to get the gun away from me, and he got shot and I got shot in the tussle,” and that “he threw the gun over the fence to keep Alex from getting it, and Alex dragged him over the fence, and both of us grabbed the gun about the same time.” In his statement the accused denied that he had made any assault on policeman Wyatt, and stated that after Wyatt had shot him the second time “he was close enough to me for me to grab his pistol by the barrel. I grabbed the barrel and he was still trying to shoot me, and I was trying to keep it away. . . The scuffling came about by his trying to get his pistol, and I tried to hold it, to keep him from killing me.”

Under the indictment in this case no conviction of any offense could be legally sustained unless the offense grew out of the use of the pistol and as alleged in the indictment. The jury returned a verdict of assault. If the evidence showed any assault, it does not show an assault independent of some other crime. If the assault is embraced in any one of the offenses included in the charge of assault with intent to murder, under the pleadings and evidence the defendant could not have been legally convicted of a simple assault. Even if the evidence would support a conviction of a battery, this would not authorize a conviction of a simple assault. An assault is an attempt to commit a violent injury on the person of another; and where the offense attempted was actually perpetrated, the accused could not be convicted of the attempt. Penal Code (1910), § 19. “Where the evidence shows no assault other than one consummated by a completed battery, a verdict of simple assault is not lawful.” Harris v. State, 3 Ga. App. 457 (60 S. E. 127); Kennedy v. State, 10 Ga. App. 794 (74 S. E. 95); Brooking v. State, 33 Ga. App. 49 (125 S. E. 504), and cit.

Judgment reversed.

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


text:
    18772.
    Rivers v. The State.
    Decided April 10, 1928.
   Broyles, O. J.

The evidence connecting the accused with the offense, charged, while circumstantial, was sufficient to authorize the jury to find that it excluded every reasonable hypothesis except that of his guilt. The cases cited in the brief of counsel for the plaintiff in error are differentiated by their particular facts from the instant case. The refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.

E. L. Forrester, E. W. Feeny, for plaintiff in error,

cited: Penal Code (1910), § 1010; 130 Ga. 63; 1 Ga. App. 651; 33 Ga. App. 597-8; 36 Ga. App. 272-3; Id. 677-8; 25 Ga. App. 242; 30 Ga. App. 180, 181 (distinguished).

Jule Felton, solicitor-general, contra.


text:
    17845.
    SAUNDERS v. CITIZENS FIRST NATIONAL BANK OF ALBANY.

      Decided April 10, 1928.

      Milner & Farhas, for plaintiff in error.

      Bennet & Peacock, contra.
   Bloodworth, J.

This court certified to the Supreme Court certain questions which it deemed necessary for a proper decision of this case. The Supreme Court answered in a comprehensive and illuminating decision which will be found in 165 Ga. 558 (142 S. E. 127), the headnotes of which are made the headnotes of this decision. Under the rulings of the Supreme Court as shown by the full opinion of that court and the headnotes thereto, which are adopted by this court, the trial court erred in directing the sheriff to pay to the Citizens First National Bank of Albany (after deducting costs) the entire fund in his hands derived from the sale of the property of P. W. Jones under the execution against him issued from the superior court of Dougherty county, and also erred in failing to direct that the execution of R. B. Saunders be credited with the net proceeds of the $215.55 derived from the sale of certain property under an execution issued from the city court of Albany in favor of the Bank of Leary against P. W. Jones and Edward Stearn. This court therefore directs that the execution of R. B. Saunders be credited with the net amount of $215.55, and that the remainder of the funds in the hands of the sheriff, after all costs are paid, be delivered to R. B. Saunders or his attorneys of record.

Judgment reversed with direction.

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


author: Brovues, O. J.

text:
    18730.
    McGhee v. The State.
    Decided April 11, 1928.
   Brovues, O. J.

The evidence adduced to establish the defendant’s guilt of possessing intoxicating liquor was circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. It follows that the verdict in favor of the State was unauthorized, and the refusal to grant a new trial was error.

Judgment reversed.

Luke cmd Bloodworth, JJ., concur.

Porter & Mebcme, for plaintiff in error.

J. F. Kelly, solicitor-general, M. Neil Andrews, contra.


author: Bell, J.

text:
    16873.
    American Mutual Liability Insurance Co. et al. v. Brock.
    Decided April 14, 1928.
   Bell, J.

The Supreme Court having on certiorari reversed the judgment ' of this court affirming with direction the judgment of the trial court sustaining the employee’s appeal, the former judgment of this court is hereby vacated and the opinion rendered in connection therewith is withdrawn. Under the decision of the Supreme Court herein, the judgment of the trial court sustaining the appeal was erroneous, and is accordingly reversed. See American Mutual Liability Ins. Co. v. Brock, 35 Ga. App. 772 (135 S. E. 103); 165 Ga. 771 (142 S. E. 101).

Judgment reversed.

Jenkins, P. J., mid Stephens, J., concur.

Harry L. Greene, McDaniel & Neely, for plaintiffs in error.

J. G. Collins, contra.


text:
    18417.
    EVANS v. CENTRAL OF GEORGIA RAILWAY CO.
    Decided April 14, 1928.

      R. D. Feagm, for plaintiff.

      Harris, Harris & Popper, for defendant.
   Bell, J.

This was an action for damages against the Central of Georgia Railway Company for personal injuries sustained by the plaintiff while employed by the defendant as a night watchman and ice parceller in its shops in the city of Macon. When the case was here upon a former occasion the judgment of the lower court sustaining a general demurrer to the petition was reversed and the case remanded for trial. The substance of the petition is stated in connection with our former decision and will not be repeated here. See Fvans v. Central of Ga. Ry. Co., 36 Ga. App. 58 (135 S. E. 760). In parcelling and distributing ice, the plaintiff worked at a platform or shelf about thirty-five inches from the ground. On the occasion in question he was leaning against it when a piece-of ice which -he had broken from a larger piece tumbled toward him and struck and injured his male organ. The jury returned a verdict in his favor for twelve cents. He made a motion for a new trial, which the court overruled, and he excepted. The first special ground of the motion for new trial complains that the verdict is so small and trivial as to demand the inference of gross mistake or undue bias against him on the part of the jury. He alleges that the evidence would have authorized a finding in favor of either party, but that since the verdict can not be construed as. a finding in favor of the defendant, it necessarily adjudicates that the defendant was negligent and that the plaintiff was entitled to recover substantial damages. Assuming that the plaintiff succeeded in proving his case as laid, to the extent of showing that the defendant was negligent and that he himself was relieved from assumption of risk, and, further, that he was not guilty of such contributory negligence as would absolutely bar a recovery, there was in the evidence abundant reason for an inference that his own negligence, if not equal to that of the defendant, was less by the narrowest margin. Furthermore, while, according to his testimony, his injury was both great and painful, as well as permanent, there was other evidence from which the jury, irrespective of any question of negligence, could have minimized his claim most materially. Considering this evidence, they would not have been bound to find any very great sum as damages, even if the plaintiff had been entirely faultless in the transaction. The damages claimed were only for the physical injury to his person and the incident pain and suffering, and there was no measure by which to determine the same except the enlightened consciences of impartial jurors. Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 122 Ga. 82 (2) (49 S. E. 818). But the jury were authorized to find not only that the plaintiff’s negligence was almost, if not quite, the sole cause of his injury, and that his injury was not as serious as claimed, but also that he failed to exercise the proper care to obtain a cure, as it was his duty to do .for the purpose of lessening the damages. Civil Code (1910), § 4398. So, irrespective of the comparative-negligence rule, the verdict in the plaintiff’s favor need not have been large. Sewell v. Atkinson, 14 Ga. App. 386 (2) (80 S. E. 862); Williams v. Hines, 26 Ga. App. 381 (2) (107 S. E. 265); Stalvey v. Statenville Ry. Co., 27 Ga. App. 174 (107 S. E. 780).

There being in. the evidence a basis for legitimate reasoning by them, the jury were equally unrestrained in comparing the negligence of the respective parties. If the plaintiff’s' injury was caused by the concurrent negligence of himself and the defendant, and his own negligence did not amount to a total lack of ordinary care and was. in some degree less than the negligence of the defendant, the damages which might otherwise have been recoverd should have been reduced according to the default attributable to him. But can it be said, in any such ease, that where substantial damages ought otherwise to be awarded, the jury might properly reason so minutely as to reduce the verdict as here to the insignificant sum of twelve cents ? We think so. In Vickers v. Atlanta & W. Point R. Co., 64 Ga. 306, Judge Bleckley, in speaking against a nonsuit in a case of negligence, said: “Where there is any doubt another method is to be used — a method involving a sort of mental chemistry ; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.” The well-settled rule, that the plaintiff can not recover where his own negligence is equal to or exceeds that of the defendant, necessarily implies both the capacity and the authority of the jury to exercise the utmost precision in ascertaining the degree of fault attributable respectively to each party. They may weigh the evidence with the scales of the apothecary or examine it with the microscope of the scientist. Or, to again change the figure, they are supposed by their verdict to point as unerringly to the truth as the needle to the pole.

It is true, this theory may be founded upon a legal fiction, but fictions, constructed for the purpose of supplying standards, are not unknown to the law. Ours being a system of trial by jury, some definite standard is needed for the purpose of determining the boundary between the province of the jury and that of the court, and a certain and well-defined criterion based even upon a fiction is better than none at all. It being the law that the jury shall consider and compare the negligence of the parties in a case like the present, by what right may the courts set aside a verdict merely because, to sustain it, we must assume that the jury had reasoned with extreme nicety and fineness P It is safer to leave the matter of comparing the negligence of the parties as a disputed issue of fact absolutely and entirely to the jury, rather than to seek for some intermediate point at which the jurors must step aside and surrender the case to the judges. It would be inconsistent to say that this was a case for a jury and then not to let them try it.

In Flanders v. Meath, 27 Ga. 358, the defendant had excepted to the judgment of the trial court granting a new trial “on account of the smallness of the damages,” the injuries being serious and the verdict being for only $50. The Supreme Court, in discussing the propriety of the small amount awarded, said: “It is said that the verdict in this case can not be justified on legal principles, and so the presiding judge seemed to think; that if the jury found for the plaintiff, they were bound to find a larger sum. Is this so ? There was a principle referred to in the case of the Wynn girl against the Macon and Western Railroad Co., decided at the July term, 1858, of this court, at this place, which we hold to be sound law — although we did not think it applied to the facts of that case; where both parties are in fault, but the defendant most so, the fault of the plaintiff may go in mitigation of damages. Suppose, the jury in this ease came to the conclusion that both parties were in fault, but the defendant slightly more so, so as to give the plaintiff a cause of action; in such case but small damages would be awarded. This obvious rule seems to have been overlooked by Lord Campbell, in a recent trial in England, if the newspaper report of it be reliable, who, because a jury returned a verdict of one farthing damages and adhered to it, reminded them of the ancient privilege of the court to keep them confined till the end of the term, and then cart them to the boundary line of the county and have them tumbled into a ditch.” So we think in this case, in view of all the evidence, the verdict should not be set. aside by this court on the ground of inadequacy. Counsel for the plaintiff in error cites and relies upon the ease of Anglin v. City of Columbus, 128 Ga. 469 (57 S. E. 780), in which it was held that a verdict in favor of the plaintiff for $100 was so small as to necessitate a new trial. But in that case, as expressly pointed out by the Supreme Court, there was no evidence upon which the jury could have found that the plaintiff was guilty of contributory negligence.

We have carefully examined every ground of the motion for a new trial and are of the opinion that each of them is without merit. The complaint that the court erred in excluding evidence tending to show that since the injury the defendant had remedied the defect in the place of work is controlled adversely to the plaintiff by the decision of the Supreme Court in Ga. So. & Fla. Ry. Co. v. Cartledge, 116 Ga. 164 (42 S. E. 405, 59 L. R. A. 118). None of the excerpts from the court’s charge contain reversible error when the charge is considered in its entirety. The court refused to give certain requested instructions. So far as these were correct and applicable, the principles stated therein were sufficiently covered by the charge given.

As indicated at tlie outset, we have merely assumed that the evidence would have authorized the inference that the plaintiff was relieved from the assumption of risk, and also that under the evidence the plaintiff’s injury should not have been attributed, as a matter of law, to his own negligence. It is questionable, however, whether, under the evidence, the plaintiff did not fail altogether to prove the case as laid in his petition and as considered by this court on the former hearing, especially as to his nonassumption of risk. Of course, if as a matter of law he was not entitled to recover at all, he could not complain of the amount of the verdict nor of any of the charges or omissions to charge. Flanders v. Meath, supra. However, without determining that question, we think it clear that no material error was committed and that the court did not err in refusing a new trial.

Judgment aiffirmed.

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