text:
    17054.
    CITY OF ELBERTON v. JONES.
    1. “The general rule is that sureties are liable only for a breach of official duty committed by their principal during the term of office for which the bond was given” (28 Cyc. 474, d) ; but under the Georgia statute all officers of this State must “discharge the duties of their office until their successors are commissioned and qualified.” Civil Code (1910), § 261. The effect of this statute is to extend the term of office under the original appointment until a successor has been qualified, with the further effect that liability on such a bond continues where an official elected for a fixed period thereafter holds over, after its expiration, until his successor is appointed. Mayor éc. of OutKbert v. Brooks, 49 Ga. 179 (3). McDonald v. Bradshaw, 2 Ga. 248 (46 Am. D. 385).
    2. In the instant case, however, the judge did not err in sustaining the general demurrer to the petition, which was a suit on the official bond of a city treasurer, it appearing from the petition that the bond sued on was given to cover his official conduct for a named year, and that the alleged defalcation occurred more than two years after the expiration of the term of office covered by the bond, and after the official had been twice re-elected to the office. And this is true although the petition alleged that no new bond was given under the successive subsequent elections, it not further appearing from the petition that he had not successfully qualified under his subsequent elections, by taking the oath of office; nor is there any allegation that upon thus successively qualifying by virtue of such subsequent elections, the city council required, as it was empowered to do, the giving of a bond for the faithful performance of the duties of his office during such subsequent term. Moreover, had a subsequent failure to take the oath of office been alleged, as well as the requirement to give bond and his failure to do so, such failure would amount to a mere irregularity, and under the facts stated the performance of the duties of'the office during the period of defalcation must be construed as falling within the last of the subsequent terms of office. Rowe v. Tuck, 149 Ga. 88 (99 S. E. 303, 5 A. L. R. 113).

      Municipal Corporations, 28 Cyc. p. 474, n. 98, 99, 2.

      Decided June 16, 1926.
    Complaint on bond; from city court of Elberton—Judge W. L. Hodges presiding. November 27, 1925.

      J. T. Sisk, for plaintiff.

      Gaudier, Thomson & Hirsch, Tutt & Brown, W. B. Gody, for defendants.
   Jenkins, P. J.

This was a suit by the City of Elberton against W. E. Jones, its former clerk and treasurer, as principal, and his sureties, on the official bond attached to the petition, which was dated March 3, 1931, and which recited and provided as follows: “William E. Jones having been elected by the city council city clerk and treasurer of the City of Elberton on the 17th day of January, 1931, to serve till the first Monday after the second Wednesday in January, 1933, now should the said William E. Jones, city clerk and treasurer aforesaid, well and faithfully perform the duties of said office in accordance with the ordinances of the City of Elberton, and at the termination of his term of office turn over to his successor all bonds and mortgages, moneys, books, and all other property of said city pertaining to the said office of city clerk and treasurer, then this bond to be void, else of full force and effect.” The charter of the City of Elberton provides that “all subordinate officers or such as are elected or appointed by the council shall hold their office at the will of the council and receive such salary as may be fixed by the council, each of whom shall take an appropriate oath before entering upon the discharge of their respective duties, and shall give bonds as the council may require,” Ga. L. 1898, pp. 179-80, sec. 1- Thus, while the petition alleges that the treasurer had failed to give any subsequent -bond, it fails to allege that he had not successively qualified under his subsequent elections, by taking the oath of office, nor is there any allegation to the effect that upon thus successively qualifying by virtue of such subsequent elections, the city council required, as it was empowered to do, the giving of a bond for the faithful performance of the duties of his office during such subsequent term. It appearing from the face of the petition that the alleged defalcation took place long subsequent to the original term of office to which the obligation of the bond was expressly limited, and that such alleged defalcation occurred during terms of office to which the official was subsequently elected, the petition was dismissed on general demurrer, the learned trial judge embodying in his judgment a statement of the legal principles governing his decision.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16736.
    WESTERN & ATLANTIC RAILROAD v. REED.
    1. The evidence authorized the verdict.
    2. Under the facts of this case the court did not err in instructing the jury, as a matter of law, that the negligence of the driver of the vehicle was not imputable to the person for whose homicide the action was brought.
    3. While it is true that the court submitted to the jury an allegation of negligence which had been stricken from the original petition, substantially the same allegation reappeared in a second count which was added to the petition by amendment. It was, therefore, not error for the court to refer to such allegation in stating the plaintiff’s contentions. “It was not incumbent on the court, in its charge to the jury, to deal separately with the two counts in the petition,” both counts having reference to the same transaction.
    4. Tor the several reasons set forth in division 4 of the opinion the court did not err in failing to charge the jury as follows: “It shall be unlawful for any person under the age of sixteen years at the time, unless such minor shall have previously had twelve months’ experience in the operation of automobiles and is accompanied by the owner of the machine at the time, to propel or operate a machine on any of the highways described in this article, of this State.”

      Evidence, 22 C. J. p. 918, n. 72.
    Negligence, 29 Cyc. p. 549, n. 50.'
    New Trial, 29 Cyc. p. 791, n. 15.
    Railroads, 33 Cyc. p. 1093, n. 63; p. 1138, n. 28.
    Trial, 38 Cyc. p. 1610, n. 95; p. 1681, n. 12.

      5. Where the presiding judge fully charged the jury that if the defendant was not guilty of negligence causing the homicide, the plaintiff could not recover, an omission to charge, without request, that no recovery could be had if the decedent’s death was the result of the negligence of the person driving the automobile was not such a failure to charge in regard to a distinct defense as to require a new trial.
    6. Where the court adequately instructed the jury upon the doctrine of comparative negligence, it was not reversible error to fail to repeat the rule in connection with, or following, a further instruction that, if the plaintiff was entitled to recover, the measure of damages would be the full value of the life of the deceased son.
    7. The court did not err in admitting in evidence, over the objections urged, the enlarged photographs of the decedent and his brother, both of whom were killed in the collision in question. There was no error in refusing a new trial.
    Decided June 18, 1926.
    Damages; from Cobb superior court—Judge Blair. July 11, 1925.
    Application lor certiorari was made to the Supreme Court.

      Tye, Peeples & Tye, Morris, Hawlcins & Wallace, for plaintiff in error.

      Reuben R. & Lowry Arnold, Mozley & Gann, contra.
   Bell, J.

Mrs. Nora Reed brought suit against the Western & Atlantic Railroad to recover for the homicide of her son Ralph. After a verdict in favor of the plaintiff, the defendant made a motion for a new trial, which was overruled, and the movant excepted. This is the second appearance of the case in this court. In 33 Ga. App. 396 (126 S. E. 393), we held that the petition set forth a cause of action and was not subject to the special demurrers interposed. We are to now determine whether there was any evidence to authorize the verdict, and whether the trial was free from prejudicial error. The allegations of the petition need not be repeated in detail, as they are shown in the previous report.

The first contention of the plaintiff in error is that the evidence failed to show any negligence by the railway company. The homicide was not at a public crossing, but was at one which, according to the petition, “had been established over the defendant’s right of way with the defendant’s consent,” was “recognized” by it, and was “well traveled.” We held in the former decision that it should be left to the jury to determine whether the acts and omissions complained of constituted negligence. The ruling then made is the law of the case, and, whether right or wrong, is now binding, if the allegations were proved as laid. But the further study and deliberation which we have been able to give the case under the present writ of error has not led us to doubt the soundness of the former ruling. It finds support in the following authorities, in addition to those previously cited: Atkinson v. Fountain, 10 Ga. App. 307 (3) (73 S. E. 534); Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39); A. C. L. R. Co. v. Taylor, 125 Ga. 454 (54 S. E. 622); Shaw v. Georgia Railroad, 127 Ga. 8 (1), 12 (55 S. E. 960). And it is deemed not to be in conflict with any of the cases relied on by the plaintiff in error, including: So. Ry. Co. v. Eubanks, 117 Ga. 217 (43 S. E. 487); So. Ry. Co. v. Flynt, 2 Ga. App. 162 (58 S. E. 374); W. U. Tel. Co. v. Spencer, 24 Ga. App. 471 (5) (101 S. E. 198); Kelly v. Hines, 25 Ga. App. 186 (102 S. E. 921); Moore v. S. A. L. Ry. Co., 30 Ga. App. 466 (118 S. E. 471). It is well settled, of course, that the statutes requiring certain things' to be done by railroad companies at public road crossings can have no application in a case like the present, in which the crossing was not one of that character (see McCoy v. Central of Ga. Ry. Co., 131 Ga. 378, 62 S. E. 297), but a railroad company may be negligent as a matter of fact where it is not so as a matter of law. That is to say, an act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring. The fact that the law says that the company shall do certain things at a public road crossing does not mean that the dictates of ordinary prudence might not require the doing of the same or similar things at other crossings used by the public with the knowledge and consent of the company. The petition in this case did not charge the violation of any statute, but simply alleged the omission, in certain particulars, of ordinary care, the duty of such care sufficiently appearing. We have carefully considered the evidence, and can not say that it fails to show that the defendant was negligent in one or more of the ways alleged.

The next question is, does it appear that the decedent, Balph Eeed, was so negligent himself as to bar a recovery? He was a little over ten years of age, and was at the time riding in an automobile belonging to his father and driven by his fifteen-year-old brother Eiley. The fatal occurrence was in the daytime. As the train approached from the north, it was clearly yisible from the crossing for a distance of 1600 to 2000 feet. The boys were approaching the crossing from the northeast, with the railroad track to their right. The track could have been plainly seen by them from any point on the road on which they were traveling and more than 40 or 50 feet of the crossing. There was a depression in the road 40 or 50 feet from the crossing, and between this and the track was certain vegetation, and by reason of these circumstances the view might have been obstructed for a short distance. The decedent’s father testified with reference to the vegetation; the depression was shown by surveys and blue prints; and Byrd Park testified: “Sitting on my porch over there and looking at that automobile as it came around that low place, I couldn’t see anything but the top of it; I could just barely see the top of it; it was most out of view in that low place, but the other part, I could see it plainly until it got to that low place.” Park testified also that as the train “was coming down to that crossing it was making very little noise.” It was making 35 to 40 miles per hour, while the automobile was moving at the rate of only 10 to 15 miles per hour. The direction of the wind was from the southeast to northwest, or toward the train from the automobile. A street-car on a track parallel with the railroad, and also going south, had passed the crossing when the boys were within about 200 feet of it, and this may have had their attention for some time before and after it crossed. Both boys were killed, and it is .not known why they did not stop in time to avoid the collision. “Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.” Civil Code (1910), § 3474. The want of proper care on the part of the decedent was a matter of defense (Atlantic Coast Line R. Co. v. Wildman, 29 Ga. App. 745 (4), 116 S. E. 858), and, under the facts appearing, this court can not say that the defense was established as a matter of law; and this is true irrespective of whether the rulings by the courts of this State to the effect that it is.not negligence per se for a person not aware of the approach of a train to attempt to cross the track at a public crossing without stopping, looking, and listening, would apply with equal force where the'crossing is not at a public road. It was for the jury to determine whether the decedent should have been on the lookout, or should have warned the driver, or what, if anything, he should have .done in the exercise of proper care under the circumstances; and, with the exception of inconclusive inferences, nobody knows what he did or failed to do. As we shall endeavor to show later, any negligence on the part of Riley Reed was not imputable to Ralph, and even if the jury concluded that Riley altogether failed to exercise ordinary care, they could not for that reason have found for the defendant, unless they were of the opinion that the negligence on his part was the proximate cause of the collision; and this they were not obliged to do under the evidence. There was ample evidence to support the verdict. See Sarman v. S. A. L. Ry. Co., 33 Ga. App. 315 (125 S. E. 891).

In the fourth special ground of the motion for new trial, it is complained that the court erred in charging the jury as a matter of law that the negligence of Riley was not to be imputed to Ralph. Assuming that the plaintiff mother may have known that the boys were out together in the automobile, and that Riley was driving, she was not, according to the undisputed evidence, responsible for their going, and did no more than to silently acquiesce. Under these circumstances, even if the father had placed the boy Ralph in the custody of Riley, the negligence of the latter would not have been imputable to the former, for the purpose of this action by the mother. But-'it is insisted that the boys had been engaged in the joint enterprise of carrying their sisters to the homes of neighbors and that the enterprise was still in progress at the time of the collision, when they were returning 'to their own home. While in the testimony of the father was the expression, “they left home to carry my. daughters,” and in the testimony of one of the sisters was the statement, “They carried me to the Mc-Ginnis house,” it is conclusive from all the evidence that Riley was the person in control of the automobile and that the younger boy had no concern in the trip except to ride. He was not a party to any enterprise, but was simply riding as the guest of his older brother. The court did not err in giving the charge complained of. See Sarman v. S. A. L. Ry. Co., supra; Civil Code (1910), § 3475. The rulings made in this division will dispose of ground 6 as well as ground 4 of the amendment to the motion for new trial.

A further complaint made in the motion for a new trial is that the court erred in charging the jury that the plaintiff alleged that the engineer and the fireman negligently “failed to discover the automobile with its back toward the train approaching down said parallel McGinnis road towards said crossing, and ordinary care required that said engineer and fireman should keep a lookout ahead of said engine in order to discover any one who might go upon said crossing,” when, as claimed by the defendant, this allegation had been stricken. It is true that the averment was stricken from the petition as originally drawn. Subsequently, however, a second count was added by amendment in which it was alleged that “the said engineer and fireman were both further negligent, in that, when the said decedent and the automobile in which he was riding were almost upon said crossing, to wit, within twenty or forty feet thereof, and with his back and side to the engine, that said engineer and fireman, in the exercise of ordinary care, in looking ahead towards said grade-crossing over the railroad, should and could have discovered said automobile and its peril before it actually got upon said crossing, and in the exercise of such ordinary care could and should have given a signal of said engine by whistle or otherwise, to warn the decedent and the driver of the automobile of the approach of the train, and said warning signal would have notified the driver and the decedent of the approach of the train, and they would not have gone upon said crossing.” It will be seen that the allegation submitted in the excerpt complained of was substantially made in the second count, although it had been stricken from the petition as originally framed. The judge further charged as follows: “I haven’t read the entire petition, you will have the entire pleadings out with you, and you can refer to them as often as you find necessary in the consideration of the ease.” He did not undertake to instruct the jury separately upon the allegations of each count, but this was not required. Gainesville & Dahlonega Ry. Co. v. Austin, 127 Ga. 120 (4) (56 S. E. 254); and see also Atkinson v. Swords, 11 Ga. App. 167 (74 S. E. 1093). There was no error in charging the jury as above stated.

Defendant contends that the court erred in failing to instruct the jury as follows: “It shall be unlawful for any person under the age of sixteen years at the time, unless such minor shall have previously had twelve months’ experience in the operation of automobiles and is accompanied by the owner of the machine at the time, to propel or operate a machine on any of the highways described in this article, of this State.” For several reasons we think there is no merit in this contention. In the first place, the charge which it is claimed the court should have given appears to have been patterned from the act of 1910 (see Ga. L. 1910, p. 93, § 9), while the law in reference to the operation of motor-vehicles which was in force at the time of the transaction in question is to be found in the act of August 15, 1921 (Ga. L. 1921, p. 255, sec. 6). By the provisions of this act it is unlawful for a minor under sixteen years of age to operate a motor-vehicle upon the highways of this State, whether he is accompanied by the owner of the machine or not, and regardless of experience. In the second place, it is not unlawful for a person under sixteen years of age to operate a motor-vehicle upon a road which is not a public street or highway; and the McGinnis road on which the automobile was being operated was not a public street or a public highway. Third, the act of driving an automobile while under lawful age could not be accounted as negligence within itself, although it might perhaps be corroborative of a contention that the vehicle was improperly handled. It would be entirely irrelevant if the automobile was otherwise operated with proper care. The proposition quoted could in no view have had more than a collateral bearing on the case, and in such instances a request to charge is necessary. Hughes v. Atlanta Steel Co., 136 Ga. 511 (71 S. E. 728, 36 L. R. A. (N. S.) 547, Ann. Cas. 1912C, 394); Central of Ga. Ry. Co. v. Moore, 149 Ga. 581 (101 S. E. 668); Freeborn v. Holt, 100 Okla. 50 (227 Pac. 136); Moyer v. Shaw Livery Co., 205 Ill. App. 273; White v. Kline, 119 Wash. 45 (204 Pac. 796) ; Scorsoni v. Pittsburg etc. Co., 272 Pa. 253 (116 Atl. 154).

The defendant excepted to the failure of the court to instruct the jury as follows: “If you find that the driver of the automobile, Riley Reed, was negligent, and that his negligence was the sole proximate cause of the death of the plaintiff’s deceased son, then the plaintiff would not be entitled to recover.” The judge fully charged the jury that unless the defendant was negligent in one or more of the particulars alleged in the petition and unless such negligence contributed to or caused the death of the decedent, there could be no recovery. He charged also that the plaintiff could not recover if the decedent was guilty of negligence equal to or exceeding the negligence of the defendant. To find that the homicide resulted from the negligence of the driver of the automobile would include a finding that it was not caused by the negligence of the defendant. On the other hand, if the defendant was not negligent, or if its negligence was not the responsible cause, it was immaterial what else might have caused the decedent’s death. In view of the general charge on the question of proximate cause, we do not think there was any error in the failure to give the further charge, the omission of which is complained of. Such charge would have amounted only to an elaboration of the proposition that the defendant was not liable if its own negligence was not the cause of the homicide, and did not involve such a distinct defense as to make it error to fail to give it, in the absence of request. This point seems to be controlled in principle by the decision of the Supreme Court in Savannah Electric Co. v. Jackson, 132 Ga. 559 (4) (64 S. E. 680). See also Howard v. Ga. Ry. &c. Co., 35 Ga. App. 273 (3) (133 S. E. 57).

The defendant did not plead a diminution of damages because of negligence on the part of the person for whose homicide the action was brought, but all the facts pleaded were set up as a complete bar or absolute defense. See Savannah Electric Co. v. Thomas, 30 Ga. App. 405 (12) (118 S. E. 481). The judge, however, as he was authorized to do under the evidence, instructed the jury upon the principle of comparative negligence, to the effect that if the decedent was negligent, but less so than the defendant, and the plaintiff was otherwise entitled to recover, the jury should find for the plaintiff, but that the damages should be diminished in proportion to the negligence attributable to the decedent. Later on the court charged the jury as follows: “If you reach the conclusion that the plaintiff is entitled to recover, then it becomes your province to determine the amount she is entitled to recover. A mother may recover for the homicide of a child minor or sui juris upon whom she is dependent, and who contributes to her support. And said mother shall be entitled to recover the full value of the life of said child. This is the measure of damage if the plaintiff is entitled to recover; it is the full value of the life of the deceased son, Ralph Reed, and it becomes your province to ascertain as best you can what the value of that life would have been.” It is seen that in this excerpt there was no reference to the rule of comparative negligence and it was only in the portion of the charge preceding this excerpt that the rule was anywhere stated. The defendant complained in one of the grounds of the motion for a new trial that the court committed error in charging the jury unqualifiedly, as in the extract last quoted, that if the plaintiff was entitled tó recover, the measure of damages would be the full value of the life of the deceased. The contention is that such charge was contradictory of the previous charge on the subject of comparative negligence and deprived the defendant of the benefit of such former charge, and was confusing to the jury in that it left them uncertain as to which of the instructions should be followed.

We can not agree with counsel for the plaintiff in error that a new trial ought to have been granted upon the exceptions now under consideration. If the defendant was liable and there was no reason to reduce the damages, the plaintiff, under the code, was entitled to recover the value of the decedent’s life. Civil Code (1910), § 4424. If the defendant was liable, but if there were facts making it proper that the plaintiff’s damages be reduced, it was still necessary for the jury to have some basis from which to make the deduction; and this basis was, of course, the full value of the life. Without being instructed as to this as a normal measure of recovery, they would have been unable to determine what amount to arrive at upon an application of the doctrine of comparative negligence. Even “though a particular instruction taken alone may be open to the criticism that it required a given qualification, yet where it plainly appears that elsewhere in the charge this’ very qualification of the doctrine laid down in such instruction was so distinctly and clearly stated as that the jury were not misled as to the true law, the giving of the instruction will not require the granting of a new trial.” City Council of Augusta v. Tharpe, 113 Ga. 152 (2) (38 S. E. 389); Wilson v. Small, 28 Ga. App. 587, 592 (113 S. E. 238, 240); Davis v. Whitcomb, 30 Ga. App. 497 (15) (118 S. E. 488). Since the court had already instructed the jury fully upon the doctrine of comparative negligence, it was unnecessary to repeat this principle, either in connection with or following the further charge on the measure of damages. The excerpts set forth in the assignment of error were not contradictory, nor were they so given as to be likely to confuse the jury. The charge of the court should be considered as a whole, and when so considered each part of it will ordinarily modify every other part. In this case the jury must have understood that the charge to the effect that the plaintiff’s measure of damages was the full value of the life was subject to and qualified by the previous instruction of comparative negligence, declaring the defendant’s right to have the damages reduced according to the negligence, if any, of the decedent. This conclusion is not in conflict with anything decided in the following cases: So. Ry. Co. v. Williams, 139 Ga. 339 (3) (77 S. E. 168); Ga. So. & Fla. Ry. Co. v. Overstreet, 17 Ga. App. 629 (5 d) (87 S. E. 909); Ga. So. & Fla. Ry. Co. v. Shiver, 31 Ga. App. 716 (121 S. E. 696). Examination of the original record on file in each of these cases discloses that in each of them the facts were different from those in the case now under review. In the Williams case the court omitted altogether to charge the jury upon the plaintiff’s duty to use ordinary care to lessen the damage from the defendant’s negligence, although the jury were authorized to find that the plaintiff, in the exercise of such care, after notice of the rejection of the lumber, might have disposed of a major part of it at its value, and have thus materially lessened the damage. A similar situation was presented in the Overstreet case, the court having failed to instruct the jury at all on the subject of diminution of damages, and having even refused a request to do so. In the Shiver case the rule on this subject was given in charge, and, as in the instant case, all the instructions in reference thereto preceded the charge on the measure of damages; but in that case the court prefaced the charge in regard to such rule by the following statement: “I will give you in charge another proposition of law, which is called the doctrine of comparative negligence. You will consider it in connection with what I have already charged you. It should not be confused with the other principles of law charged.” The implication was that the rule was to be considered only in connection with instructions previously given, and that it should not be considered in conjunction with those later given, which contained the only charge on the measure of damages. This court, in reviewing the case, therefore, held: “Where the evidence presented the issue of comparative negligence, and the judge instructed the jury the rule in reference thereto, but thereafter charged them in such a way as to deprive the defendant of the benefit of that rule, the latter charge was error.” In the present case there was no such limitation of the right of the jury to consider such rule in connection with the court’s charge on the measure of damages, and the particular question now before us seems to be controlled by Davis v. Whitcomb, supra. The charge did not tell the jury that in the event they found the defendant liable, the amount of the verdict should be the full value of the life. The defendant might with equal reason have excepted to the charge upon the ground that it did not include an instruction to reduce the value of the life to its present cash value; and, obviously, a contention of that sort could not have been sustained, in view of the whole charge.

In another ground of the motion for a new trial the defendant complains of a certain charge of the court in reference to the use to be made by the jury of the mortality table, and to their duty to ascertain the present value of whatever amount the decedent would have earned throughout his life, in the event they found that the plaintiff was entitled to recover. We have examined the charge in the light of the criticism made of it, and do not think it fairly subject to the exceptions taken.

The plaintiff tendered in evidence “two large bust pictures, oval in shape, framed, and approximately two feet long and eighteen inches wide in the center, which were identified by the witness J. 0. Reed as being enlarged pictures respectively of. the deceased Ralph Reed, and of his brother Riley Reed.” It was shown by the evidence that after the boys had died these pictures were enlarged from original photographs taken four to six weeks before their death. Mr. Reed, the father, testified that “they were correct likenesses of the two boys at the time of their death.” Defendant’s counsel objected “to these photographs being exhibited in evidence, on the ground that they were photographs taken from others; they are enlarged from other photographs;” and upon the further grounds that they were irrevelant and immaterial, “shedding no light on the issues involved,” and were “things they are trying to put into the record that it is impossible to make a record of.” Counsel for the defendant also suggested that it would be possible for an artist to make an enlarged photograph altogether different in appearance from the original. The court overruled all the objections and admitted the “pictures” in evidence. While it is true that an enlarged photograph might, from design of the artist or other reason, be entirely different in appearance from the original of which it is a purported reproduction, the evidence shows that this was not so as to the particular photographs. On the other hand, “they were correct likenesses of the two boys at the time of their death.” It was not a good ground of objection that the photographs could not be put into the record, or that no record of the same could be made. It frequently happens in the trial of cases that clothing, weapons, and even liquors, are introduced in evidence although no adequate record can be made of them. Both photographs were not irrelevant and immaterial, for, if they were correct likenesses, the one of Balph might have aided the jury in determining his capacity to exercise care and diligence on the occasion of his death. The jury also had for their consideration the question of the capacity of the boy Balph to labor and contribute to his mother’s support, and the photograph of him might have enlightened the jury in some degree upon this issue. There was no separate objection to the photograph of Biley; and if the other photograph was admissible, the objection to both was properly overruled. As to the mere fact that the photographs were enlarged, “It is no objection to the admissibility of a photograph that it is enlarged, showing the subject or object magnified, where it does not have a tendency to mislead.” 22 C. J. 918, § 1121. There was no objection that for any reason the photographs were prejudicial or that they tended to mislead the jury. We see no error in the court’s ruling. The above disposes of all grounds of the motion for new trial which it is necessary to notice in detail. The court did not err in overruling the motion.

Judgment affirmed.

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


text:
    16881.
    McElroy, executor, for use, etc., v. McElroy.
    Appeal and Error, 4 C. J. p. 1068, n. 22.
    Decided June 18, 1926.
    Complaint; from Madison superior court—Judge W. L. Hodges. September 8, 1925.

      Pierce Martin, John J. Strickland, Rupert A. Brown, R. Howard Gordon, for plaintiff.

      Erwin, Erwin & Nix, Berry T. Moseley, for defendant.
   Bell, J.

1. As to the exceptions to the judgment of nonsuit, this case is controlled in principle by the decision rendered by this court in the recent case of Williams v. McElroy, 35 Ga. App. 420 (133 S. E. 297). The court erred in granting the nonsuit.

2. The bill of exceptions contains exceptions to the rejection of certain evidence, but the brief of counsel for plaintiff in error says nothing in reference thereto except that they “are sufficiently technical to invoke a ruling by this court as to the propriety of the same,” and that “they are sufficiently technical, regardless, to invoke such a ruling.” This amounts to nothing more than a contention that the exceptions are in proper form. It constitutes no. sort of insistence that they ought to be sustained, and they will be treated as abandoned.

Judgment reversed.

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


text:
    16926.
    Colt Company v. Hiland.
    Agency, 2 0. J. p. 439, n. 4; p. 833, n. 35.
    Contracts, 13 C. J. p. 304, n. 61; p. 705, n. 4; p. 713, n. 53.
    Sales, 35 Cyc. p. 41, n. 79; p. 540, n. 65; p. 542, n. 83; p. 615, n. 15.
   Bell, J.

1. “Where the seller of a lighting plant, which must be set up and installed in the house of the purchaser before it can serve the use intended, procures another person to contract with the purchaser to set up and install the plant, to which contract the seller is not a party, the person thus procured by the seller to install the plant is, when installing it, performing services beneficial to the seller, in that the performance of such services enables the seller to do business with and contract with the purchaser. The installer, therefore, when performing such services, although he does so under his contract with the purchaser, and is paid by him, may nevertheless be also acting as an agent for the seller.” Colt Co. v. Pickron, 32 Ga. App. 715 (3) (124 S. E. 550). Furthermore, “The rule seems to be general, that under appropriate pleading, where a contract in writing not under seal, and other than a negotiable instrument, is made in another name than that of the real principal, the real principal can sue and be sued. Beckham v. Drake, 11 Mees. & Wei. 315. It may possibly require some subtlety and refinement of reasoning to take this principle out of the operation of the rule that a written instrument can not be added to, varied, or explained by parol. However, the distinction is firmly established in our jurisprudence, and is in the interest of fair dealing, that the real party to the contract, though his name may not appear therein, in the adjustment of disputes arising out of that contract between the contracting parties, should'be allowed both to sue and be sued. Metcalf v. Williams, 104 U. S. 93, 96.” Burkhalter v. Perry, 127 Ga. 438, 442 ( 56 S. E. 631, 119 Am. St. R. 343). The evidence in this ease authorized the inference that the plaintiff vendor was a real party to the “installation contract” and was bound by the terms thereof, though its name did not appear therein and the agreement was signed only by the vendee and another as the “installer.”

2. It is not essential that a written contract be contained in a single paper. Where a sales agent of the vendor of an apparatus made and designed to be used as a lighting plant solicited an order from another as vendee, which was to become an agreement of sale and purchase when accepted by an officer or credit manager of the vendor at its home office, and where the sales agent simultaneously procured the execution by the vendee of a separate writing between the vendee and an “installer” unnamed, for the installation of the apparatus for a sum specified, which was to “become a contract when accepted by the installer,” both of which writings were delivered to the sales agent and were thereafter duly accepted, the one by the vendor’s credit manager and the other by an installer procured solely by the vendor, the inference was authorized that the two writings constituted a single contract between the vendor and the vendee, obligating the vendor to deliver the apparatus at the contract price, and also to install it in further consideration of the vendee’s paying for the services of the vendor’s agents or employees making the installation. Horne v. Evans, 31 Ga. App. 370 (120 S. E. 787) ; Dolan v. Lifsey, 19 Ga. App. 518 (91 S. E. 913).

3. While under the facts of this ease the vendor’s agreement to sell and deliver and what the jury could have found was its obligation to install were independent and severable undertakings (see Civil Code of 1910, § 4228), and while the property appears to have been delivered according to contract, and there may have been no breach of warranty as to the property itself, yet where the vendor agreed to install the apparatus, it was its implied duty to do so with reasonable skill and ability (compare Block v. Happ, 144 Ga. 146 (2), 86 S. E. 316) ; and if the installation was executed improperly and defectively, the vendor would be liable to the vendee as for a breach of contract, for such 'damages as arose naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach. See Civil Code (1910), §§ 4390, 4395. If the installation was done so improperly and defectively as to destroy the value of the apparatus and render it worthless, as could have been inferred from the evidence, the vendee was entitled to plead and prove these facts in defense to the action for the purchase-price. Trustees v. Broadfield, 30 Ga. 1 (1, 2) j Candler Investment Co. v. Cow, 4 Ga. App. 763 (2) (62 S. E. 479); Albany Phosphate Co. v. Hugger, 4 Ga. App. 771 (3) (62 S. E. 533) ; Chappell v. Western Ry., 8 Ga. App. 787 (3) (70 S. E. 208) ; Dornblatt v. Carlton, 10 Ga. App. 741 (73 S. E. 1085) ; Colt Co. v. Mallory, 35 Ga. App. 288 (133 S. E. 55).

Decided June 18, 1926.

Complaint; from Jackson superior court—Judge J. B. Jones presiding. October 3, 1925.

J. M. McClure, for plaintiff. Pemberton Cooley, for defendant.

(a) The rulings made in this paragraph would be the same whether the agreement of the vendor to sell and deliver and its obligation to install were contained in a single contract or in separate contracts. Civil Code (1910), §§ 4339, 4340; Fla. Cen. R. Co. v. Cherokee Sawmill Co., 11 Ga. App. 278 (75 S. E. 164) ; Pickett v. Andrews, 135 Ga. 299 (69 S. E. 478).

4. In the nature of the defense asserted it, was not necessary for the defendant vendee to offer a restoration of the property, as would have been the case had he sought to avoid the contract on the ground of fraud.

5. The evidence did not demand a finding that the defendant knew or ought to have discovered the defensive facts relied on, before the execution of the note. Mound City Roofing Tile Co. v. Walker, 33 Ga. App. 207 (2) (125 S. E. 863).

6. Under the above rulings, the court did not err in allowing the amendment to the defendant’s answer, nor in the admission of evidence, nor in any of the charges to the jury. The evidence authorized the verdict. The court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    16929.
    Jones v. Clemons et al.

    Trial, 38 Cyc. p. 1578, n. 39.
    Vendor and Purchaser, 39 Cye. p. 1388, n. 15; p. 1653, n. 42; p. 1997, n. 94, 96; p. 2013, n. 90; p. 2097, n. 3.
   Bell, J.

1. Where an owner sells land and executes a bond to make title on payment of the purchase-money, and thereafter conveys the land to a third person to secure his own debt and without stipulating or providing that the conveyance is subject to his prior bond for title, he commits a breach of the bond. Gibson v. Carreker, 91 Ga. 617 (17 S. E. 965) ; Cumming v. McDade, 118 Ga. 612, 614 (45 S. E. 479) ; Peterson v. Harper, 13 Ga. App. 112 (2) (78 S. E. 942).

2. In such a ease the vendee may elect either to sue the vendor for damages or to treat the contract as rescinded and sue for such sum as will restore the status. Buck v. Duvall, 9 Ga. App. 656 (72 S. E. 44) ; s. c.. 11 Ga. App. 853 (76 S. E. 1053). In the present case the vendee elected to treat the contract as rescinded.

3. Although the vendee, being in possession, could have stood his ground and defeated the claim of the holder of the security deed (see Civil Code (1910), § 4528; Burr v. Toomer, 103 Ga. 159 (29 S. E. 692) ; Ga. State Bldg. & Loan Asso. v. Faison, 114 Ga. 655 (40 S. E. 760); Gholston v. N. E. Banking Co., 158 Ga. 291 (123 S. E. Ill, 35 A. L. R. 23) ), he was not compelled to do so, since the act of his vendor amounted to a repudiation of the contract and operated to cast a cloud upon the vendee’s interest in the property. Adams v. Bridges, 141 Ga. 418 (c) (81 S. E. 203) ; Hinton v. McBride, 147 Ga. 603 (2) (95 S. E. 1) ; Thompson v. Etowah Iron Co., 91 Ga. 538 (17 S. E. 663).

Decided June 18, 1926.

Action for breach of bond; from Walker superior court—Judge Wright. August 21, 1925.

Julius Rink, R. M. W. Glenn, and Rosser & Shaw, for plaintiff.

McClure & McClure, M. Neil Andrews, for defendants.

4. Under the pleadings and the evidence a substantial recovery by the plaintiff would have been authorized. It follows that the court erred in directing a verdict for the defendants.

Judgment reversed.

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


text:
    16964, 17030.
    CITIZENS NATIONAL BANK OF WASHINGTON v. JENNINGS; and vice versa.

    1. Where a partnership has the same name as one of its members, a note signed in that name by that member is, in the absence of anything to the contrary, prima facie his individual undertaking.
    (a) A note so executed after the dissolution of the partnership is presumptively the undertaking of the person signing it, where nothing else appears except that it was given in renewal of unpaid debts incurred by the partnership prior to its dissolution.
    (&) “An action is not maintainable against a partnership upon the individual contract of a member thereof.”
    (c) Applying the foregoing rulings to the evidence in this ease, a verdict for the plaintiff would not have been authorized.
    2. Furthermore, the notes sued on were sealed instruments, and, under the evidence, if the person signing them was acting as agent of the partnership, his principal was undisclosed; and an undisclosed principal can not be held liable on a sealed instrument signed by another.

      (a) Since a verdict for the plaintiff would not have been authorized, the plaintiff was not harmed by any errors in the charge of the court or in refusals to charge.
    (5) The court did not err in refusing a new trial.
    Agency, 2 C. J. p. 843, n. 82.
    Appeal and Error, 4 O. J. p. 1042, n. 34.
    Partnership, 30 Cye. p. 484, n. 69; p. 486, n. 78.
    Decided June 18, 1926.
    Complaint; from Fulton superior court—Judge E. D. Thomas. October 23, 1925.

      Colley & Colley, M. L. Felts, Watkins & Asbill, for plaintiff.

      A. W. White, G. B. Sutton, A. E. S. Weaver, for defendant.
   Bell, J.

Citizens National Bank of Washington, Georgia, the payee, brought suit against L. 0. Fortson and A. H. Jennings, as partners, upon two notes bearing this signature: “L. 0. Fortson.” The petition alleged that L. 0. Fortson and A. H. Jennings both signed the notes, and are indebted thereon under the firm name and style of “L. 0. Fortson,” they having composed the firm of “L. 0. Fortson,” and “having done business under said name and style, and' the notes sued on are evidences of a .partnership debt.” Jennings alone defended. The jury trying the case returned a verdict in his favor. The plaintiff made a motion for a new trial, containing the usual general grounds and a number of special grounds. -The special grounds complained only- of alleged errors in the charge of the court and of refusals of requests to charge. The motion was overruled. The following facts appeared without dispute upon the trial: A partnership at one time existed between Fortson and Jennings under the name stated. The partnership was dissolved before the notes now in question were executed. The notes were in renewal of debts incurred by the partnership before its dissolution and which had remained unpaid. The signature was affixed by L. 0. Fortson. Jennings was not present and had no part in the transaction. Nothing was said by Fortson at the time, nor before, as to whether he was affixing the signature of the partnership or of himself, nor as to whom he intended to bind. The transaction was solely between him and the bank’s cashier (who was also its president), who did not know the partnership, or any other than Fortson, in the transaction. Fortson did not testify. Some other issues were developed by the evidence, but, in our view of the case, the above is a full and complete statement of the controlling facts.

The name “L. 0. Fortson” imports an individual, and not a partnership. It is shown, however, to be the name both of an individual and of a partnership. But the signature of a partnership usually carries with it “by” or “per” and the name or initials of the person affixing it. One who signs merely his own name to a note is supposedly acting for himself, although it is known that he is a member of a partnership of the same name. Judged only by their face and the circumstances that they were signed by Fortson, and that he was a member of a partnership having the same name as himself, the notes sued on would appear to be his personal and individual undertakings, and not the obligations of the partnership. Buckner v. Lee, 8 Ga. 285 (3); Wood v. Martin, 115 Ga. 147 (41 S. E. 490). It appearing, without dispute, that the partnership was dissolved prior to the execution of the notes, presumptively Eortson did not sign them in behalf of the partnership, since he would have had no right or authority to' do so. English v. Poole, 31 Ga. App. 582 (4) (121 S. E. 589). After the partnership was dissolved he had no authority, merely by virtue of his prior relation, to bind the partnership or Jennings, even though the notes were in renewal of an indebtedness which the partnership had incurred prior to its dissolution (Bennett v. Watson, 31 Ga. App. 367 (4), 120 S. E. 802); and since prima facie he would not have done that which he ought not to have done, the mere fact that the notes were in renewal of existing debts of the partnership would not, without more, rebut the presumption that they were the individual promises of the person signing them, renewing the debts (for which he was already liable as a partner) as to himself only. Civil Code (1910), § 3188; Chamberlain v. Stone, 24 Ga. 310 (1). With the exception of the insufficient circumstance that the notes were in renewal of old debts of the partnership, there was no evidence as to whether the person signing the notes did so in behalf of the partnership rather than in behalf of himself alone as an individual. The fact that the creditor may have had no sufficient notice of the dissolution of the partnership would not affect the actual right of one of the erstwhile members to contract on behalf of the partnership. Civil Code (1910), §§ 3164, 3188; MacIntyre v. Massey, 11 Ga. App. 458 (75 S. E. 814); Scott v. Atlanta Wood &c. Works, 12 Ga. App. 216 (76 S. E. 1082). It would merely estop the other partner from denying the authority of the person who undertook to bind him. Civil Code (1910), § 3180; Huggins v. Huggins, 117 Ga. 151 (2), 156 (43 S. E. 759); Shapleigh Hardware Co. v. McCoy, 23 Ga. App. 265 (98 S. E. 102). Whether the creditor had notice of the dissolution or not, it could not recover against the partnership without showing that the contracts were made in behalf of the partnership. “An action is not maintainable against a partnership upon the individual contract of a member thereof.” Wood v. Martin, supra; Floyd v. Wallace, 31 Ga. 688 (5). The presumption that the notes were Eortson’s individually never having been overcome, the plaintiff failed to prove that they were partnership contracts. It follows that a verdict for the plaintiff would not have been authorized.

But there is an additional reason why the plaintiff was not entitled to recover. The petition alleged that the notes were partnership contracts signed by both partners. See Buckner v. Lee, 8 Ga. 285 (2); Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (61 S. E. 543, 17 L. R. A. (N S.) 969, 14 Ann. Cas. 546). But the evidence showed that they were signed only by the person whose name had been employed as the name of the partnership, not in the presence of the other partner, and that the plaintiff bank did not know the partnership or the other member in the transaction. The notes were under seal. Therefore, if the person signing them was acting as agent for the partnership, the partnership was undisclosed, and an undisclosed principal can not be held liable under a sealed contract signed by another. Lenney v. Finley, 118 Ga. 718 (45 S. E. 593); Pope v. Jennings, 34 Ga. App. 496 (130 S. E. 348). Our conclusion on the general grounds of the motion for new trial would probably have been different if the name of the partnership had not been the same as that of the .member, and if the notes had purported upon their face to have been made in behalf of the partnership instead of leaving it to extraneous proof as to whether they were intended as partnership or individual contracts. From what has been said, it is unnecessary to deal with the special grounds of the motion. If the judge erred in his charge to the jury, or in refusing the requests to charge, the plaintiff was not hurt. There was no error in refusing a new trial.

Judgment on main hill of exceptions affirmedj cross-hill dismissed.

Jenkins, P. J., concurs. Stephens, J., disqualified.


author: Jenkins, P. J.

text:
    16966.
    WILLIAMS-THOMPSON COMPANY v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    It appearing from tlie facts disclosed by the record that the tenant, on the date when the eviction warrant was issued, was occupying the premises under the terms of an accepted offer of rental, for which the rent was actually paid and accepted, and was not merely holding over under the previously expired contract, the warrant could not legally be maintained.

      Landlord and Tenant, 35 O. J. p. 1031, n. 70; 36 O. J. p. 644, n. 12. Payments, 30 Cyc. p. 1208, n. 99.

      Decided June 18, 1926.
    Rehearing denied July 20, 1926.
    Certiorari; from Fulton superior court—Judge Bell. October 26, 1925.
    Application for certiorari was made to the Supreme Court.

      Hewlett & Dennis, Watkins & Asbill, for plaintiff in error.

      W. 0. Wilson, McDaniel & Neely, contra.
   Jenkins, P. J.

1. It appears from the record that on September 1, 1919, Williams-Thompson Company leased from the Louisville & Nashville Eailroad Company premises known as number 12 Produce Eow, Atlanta, Georgia, for a term which expired on December 31, 1923. At the expiration of the lease, the Williams-Thompson Company refused to vacate the premises in accordance with a notice so to do, and filed a petition in the superior court of Fulton county to enjoin the railroad company from dispossessing it; the prayer for injunction was denied, and the judgment of the superior court was affirmed by the Supreme Court. 159 Qa. 793 (126 S. E. 833). Pending the litigation the Williams-Thompson Company continued to occupy the premises under a supersedeas bond. After the rendition of the judgment of the Supreme Court, and on Friday, March 27, 1925, an agent of the railroad company called upon James T. Williams, President of the Williams-Thompson Company, and demanded possession of the premises, and at the same time presented a bill for all past unpaid accrued rent, and for rent up through March 31, 1925. Williams requested time to make up his mind as to what he would do, and was granted until the following Monday noon, March 30. On the trial of a dispossessory-warrant proceeding in the municipal court of Atlanta, the company’s agent who rendered the bill and made demand for possession testified that, having received no word from the defendant by noon of March 30, a dispossessory warrant was instituted on that day. Williams testified on behalf of the defendant that on Friday, March 27, he mailed a check, which appears to have been actually dated March 26, 1925, for the amount of the biE as rendered, to the agent of the plaintiff railroad company at Augusta, Georgia, the official to whom payment was to be made as indicated by the bill. This check, introduced in evidence, shows the indorsement of the company, and that the check was deposited by it on March 31, 1925, and the bill receipted on that date, and that the check was paid out of the defendant’s funds on April 1, 1925. The counter-affidavit sets up that at the time the dispossessory warrant was issued, the Williams-Thompson Company was not holding over and that no rent was past due. The municipal court decided the issues in favor of the defendant, and a certiorari to this judgment was sustained by the superior court, and to this latter judgment exception was taken.

The record showing that, under a previous holding of the Supreme Court, the defendant was a tenant holding over at the time payment of rent and possession of the premises were demanded on March 27, the burden was upon it to show that at the time the dispossessory warrant was issued, on March 30, it was in possession in accordance with its acceptance of the special offer made by the plaintiff at the time of the demand, by which it might remain in possession for the remainder of the month, including March 31. Checks not being payment until themselves paid (Civil Code of 1910, § 4314), the mailing of a check to the plaintiff’s agent at Augusta on March 27, including rent through March 31, in compliance with the express offer contained in the bill for rent presented by the plaintiff on March 27, would not of itself amount to an acceptance of the offer by noon of March 30, as required by the terms of the offer, and it was the privilege of the plaintiff to refuse the check and, stand on its right to dispossess after the day and hour last mentioned. The plaintiff, however, having on March 31 collected the check and receipted the bill for rent, including March 31, as being a payment made in accordance with the terms of its special offer made on March 27, affirmed the existence of a rent contract between the date of the offer and April 1. Guptill v. Macon Stone Supply Co., 140 Ga. 696, 698. It is true that the acceptance, from a tenant holding over, of rent which has accrued subsequently to the issuing of a dispossessory-warrant proceeding does not estop the landlord from pressing the proceeding to dispossess the tenant (Allen v. Allen, 154 Ga. 581 (6), 115 S. E. 17), but this principle was applied to a tenant holding over, and does not apply where the acceptance of such a payment under the terms of such offer necessarily affirms the contract and fixes the status of the tenant as having been in legal possession of the premises during the period for which the rent was tendered and accepted. It appears from the facts disclosed by the record that the tenant occupied the premises' from March 27 to March 31, inclusive, under the terms of an accepted offer of rental, for which the rent was actually paid and actually accepted, and that it was not merely holding over under ité previously expired contract. It follows, therefore, that the dispossessory warrant taken out within the period of such recognized lease could not legally be maintained. Wadley v. Jones, 55 Ga. 329.

Judgment reversed. Stephens and Bell, JJ., concur.

ON 'MOTION ROE REHEARING.

A motion for rehearing was filed in this case, in which it is set forth that the court appears not to have taken into consideration that the dispossessory warrant is based upon two grounds, not solely upon the ground of the non-payment of rent, but also upon the further ground that the tenant was holding over. We did not overlook the fact that the dispossessory warrant was thus based upon each of these grounds; but, as we understand the case, the plaintiff accepted the rent tendered to the person designated in the bill to whom payment was to be made, for a term including March 31. Therefore, on the date on which the warrant was issued, to wit, March 30, not only was there no default in payment of rent, but the defendant could not be holding over, since the term fixed by the date to which rent had been paid and accepted had not then expired. In other words, as we see it, the acceptance of the rent for the period designated in the bill rendered, including one day subsequent to that on which the warrant was issued, rendered the proceeding invalid upon each of the grounds alike.

Rehearing denied.


text:
    16968.
    Orr v. Dawson Telephone Company et al.

    Negligence, 29 Cyc. p. 487, n. 16; p. 607, n. 88, 89; p. 614, n. 39; p 618, n. 57.
    Pleading, 31 Cyc. p. 702, n. 34; p. 714, n. 53 New.
    Telephones and Telegraphs, 37 Cyc. p. 1644, n. 4 New; p. 1645, n. 12, 21; p. 1647, n. 36.
    Trial, 38 Cyc. p. 1340, n. 98.
   Bell, J.

1. Where a suit against a telephone company and an individual alleged that the defendants operated, controlled and maintained a telephone line of which they were joint owners, and that the plaintiff sustained an injury as the result of the defendants’ negligence in failing to maintain it in a reasonably safe condition, for which injury the plaintiff sought to hold the defendants liable in damages, and where upon the trial the evidence supported the other allegations, there was no fatal variance between the allegations and the proof merely because the evidence may have failed to show that the defendants were joint owners of the line as averred in the petition. If the defendants jointly controlled and maintained the line and breached some duty of diligence which they owed to the plaintiff with respect to the. manner of maintaining it, and if he was injured as a consequence of such breach, the ownership of the line would not be an essential fact in his cause of action. Where a party alleges more than is necessary to entitle him to recoyer, his case does not fail if he proves a sufficiency of the averments to show the defendants liable, although he does not prove every relevant fact alleged. Christian v. Columbus & Rome Ry. Co., 90 Ga. 124 (5) (15 S. E. 701) ; Western Union Tel. Co. v. Owens, 23 Ga. App. 169 (2), 171 (98 S. E. 116).

2. Where, in such case, the petition alleged that the defendants were negligent in allowing the poles upon which the telephone wires were strung and which were set alongside a public road, to become decayed, so that one of them fell and drew the wire into the road, by which wire and one of the po’les the plaintiff was injured while traveling upon the highway, evidence to the effect that soon after the injury the company took up and removed the wire was admissible, not as tending to show negligence on the part of the company in the previous condition and location of the wire, but as illustrating its control thereof at the time of the injury, the matter of such control being relevant and in dispute, and the court erred in excluding such evidence. The fact that evidence may be inadmissible for one purpose does not warrant its exclusion when it is relevant and admissible for another purpose. Peoples National Bank v. Haralson, 1 Ga. App. 311 (57 S. E. 991) ; Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236 (2) (66 S. E. 624) ; Capital City Brick Co. v. Atlantic Ice & Coal Co., 5 Ga. App. 436 (3) (63 S. E. 562) ; Parke v. Foster, 26 Ga. 465 (71 Am. D. 221) ; Fidelity & Deposit Co. v. Nisbet, 119 Ga. 316 (4) (46 S. E. 444) ; Central of Ga. Ry. Co. v. Brown, 138 Ga. 107 (2) (74 S. E. 839).

3. Evidence to the effect that the company rendered telephone service to customers over the line in question and charged some of them for the service rendered, and that its agents and employees had on different occasions within five or six months previous to the injury repaired the line, and had removed it soon after the injury, was sufficient to authorize the inference that the company was a party to the control and maintenance of such line, and to identify the company as one that should be liable for any negligence in the condition and location of the wire and poles upon and along a highway, by which a traveler was injured. 29 Cyc. 607, 618; Cumberland Telephone etc. Co. v. Laird, 161 Ky. 800 (171 S. W. 386).

Decided June 18, 1926.

Action for damages; from city court of Dawson—Judge Harper presiding. October 15, 1925.

W. E. Gurr, M. G. Edwards, for plaintiff.

E. A. Wilkinson, for defendants.

4. Where, in such case, the evidence tended-to show that the individual defendant was in possession of a plantation to which the telephone line extended and at which a telephone was situated, and that the company rendered telephonic service to him over such line and through such telephone, but did not charge him “phone rent” and still did not allow him the service without consideration, and where the evidence tended to show further that the employees of such individual defendant had made repairs upon the line a year or so before the plaintiff’s injury, and that such defendant was present with such employees at the time of such repairs, and there is no evidence tending to explain such conduct on the part of himself and such employees, such evidence, considered in connection with that referred to in the preceding paragraph, was sufficient to authorize the inference that such individual defendant was a party with the telephone company in the control and maintenance of the telephone line, and jointly responsible for any negligence in failing to maintain it in a reasonably safe condition, as a result of which a traveler on the highway was injured. Western Union Tel. Co. v. Owens, supra; Ga. Ry. &c. Co. v. Tompkins, 138 Ga. 596 (2) (75 S. E. 664); North Arkansas Telephone Co. v. Peters, 103 Ark. 564 (148 S. W. 273).

5. The evidence being sufficient to authorize the inference that the telephone line was negligently maintained, and that it was the duty of each and both of the defendants to see that it was kept in a reasonably safe condition, and that the plaintiff was injured as a result of the negligence complained of, the ease should not have been nonsuited as to either defendant. Even though “voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred.” “Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties.” Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (3) (126 S. E. 883).

Judgment reversed.

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


author: Bloodworm*, J.

text:
    16896.
    FORRESTER, administrator, v. FRIZZELL.
    1. There is no merit in either of the grounds of the motion to dismiss the bill of exceptions.
    2. “It may be laid down as a general proposition that where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”
    Appeal and Error, 4 C. J. p. 271, n. 32.
    Estoppel, 21 O. J. p. 1228, n. 69.
    Decided July 13, 1926.
    Illegality of execution; from Walker superior court—Judge Wright. August 18, 1925.

      McClure & McClure, Rosser & Shaw, for plaintiff.

      R. M. W. Glenn, Norman Shatlucle, for defendant.
   Bloodworm*, J.

A motion to dismiss the bill of exceptions was made on two grounds, neither of which has any merit. One of the grounds is: “It aj>peaTing that the judgment excepted to bore date of August 18, 1925, and the bill of exceptions was presented to the clerk on Oct. 16, 1925 (the trial judge being dead), the same being more than thirty days from the date of the judgment, and it not appearing that the same was within thirty days from the judgment complained of, and it not appearing that the court continued in session more than thirty days.” The last clause of this ground is an incorrect statement. In his certificate to the transcript of the record, dated October 21, 1925, evidently overlooked by counsel for defendant in error, the clerk certifies that “the August term of said court, at which said case was tried, has not adjourned.” This being true, plaintiff in error had sixty days from the date of the judgment of which complaint is made, in which to tender his bill of exceptions. Civil Code (1910), § 6152.

Plaintiff in error, a creditor of the bankrupt, 'filed a petition in the bankruptcy court, and prayed that the court “withhold any discharge in bankruptcy from said bankrupt until your petitioner shall have had a reasonable time sufficient to prosecute his said claim in the State courts of Georgia, for the purpose of subjecting said homestead property as aforesaid.” To which said petition a demurrer was filed, and an order was signed by Judge Sibley as follows: “The bankrupt, S. T. Frizzel, having demurred to the petition to withhold the bankrupt’s discharge, and taken the position that the discharge will not operate to stop the proceeding of the execution of the judgment creditor, said demurrer is hereby-sustained, and the petition to withhold the bankrupt’s discharge hereby dismissed for this reason.” In the affidavit of illegality which was afterwards filed in the superior court of Walker county, Georgia, the bankrupt attempted to prevent the enforcement of the execution against him, by alleging that by reason of his discharge in bankruptcy he had been discharged from all debts and claims against his estate made provable by the bankruptcy case. This was in direct conflict with the former position assumed by the bankrupt, as shown by the foregoing order of Judge Sibley. “It may be laid down as a general proposition that where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Waklee, 156 U. S. 689 (15 Sup. Ct. 555, 39 L. ed. 578); Luther v. Clay, 100 Ga. 236 (28 S. E. 46, 39 L. R. A. 95); Vaughn v. Strickland, 108 Ga. 659 (2) (34 S. E. 192); Gentry v. Barron, 109 Ga. 172 (4) (34 S. E. 349); Haber-Blum-Bloch Hat Co. v. Friesleben, 5 Ga. App. 123 (62 S. E. 712), and cit.; Mayor &c. of Savannah v. Monroe, 22 Ga. App. 190 (95 S. E. 731), and cit.; Ellis v. Ellis, 161 Ga. 360 (2) (130 S. E. 681), and cit. Under the above-stated ruling and the facts of the instant case, the defendant in fi. fa. was estopped from setting up that his discharge in bankruptcy was a discharge of his indebtedness to the plaintiff in fi. fa. It follows that the trial court erred in directing a verdict in favor of the illegality.

Judgment reversed.

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


author: Bloodwobth, J.

text:
    17187.
    Commercial Credit Co. Inc. v. S. E. S. Motor Co. et al.

    Appeal and Error, 4 C. J. p. 843, n. 65; p. 846, n. 95; p. 864, n. 34.
    Trial, 38 Oye. p. 1512, n. 25.
   Bloodwobth, J.

1. “Where a new trial is sought on the ground that a member of the jury trying the case was related within the prohibited degree to the prevailing party, and, upon the hearing, affidavits are introduced tending to establish the sufficiency of that ground, and counter-affidavits are introduced to the effect that no relationship existed, the judge passing upon the motion is the trior of the fact in controversy, and this court will not interfere with his decision thereon. Buchanan v. State, 118 Ga. 751 (9) (45 S. E. 607).” Johnston-Crews Co. v. Smith, 33 Ga. App. 25 (125 S. E. 734). The foregoing ruling disposes of the only special ground of the motion for a new trial.

Decided July 13, 1926.

Rehearing denied August 4, 1926.

Complaint; from city court of Metter—Judge Lanier. January 2?, 1926.

Anderson & Trapnell, for plaintiff.

Kirlcland & Kirlcland, for defendant.

2. This court is a court for the correction of errors of law alone. “It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict. This ground in the motion for new trial is addressed to the discretion of the trial judge, upon whom is imposed the duty of being-satisfied with a verdict before he approves it.” Bell v. Aiken, 1 Ga. App. 36 (57 S. E. 1001). On questions of fact the jury is the final arbiter. The trial judge by overruling the motion for a new trial expressed his satisfaction with the verdict, and this court will not interfere.

Judgment affirmed.

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


author: Lube, J.

text:
    17349.
    Truitt v. The State.
    Criminal Law, 17 C. J. p. 256, n. 62.
    Decided July 13, 1926.
    Making intoxicating liquor; from Troup superior court—Judge Loop. February 19, 1926.

      L. B. Wyatt, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, contra.
   Lube, J.

The evidence for the State (no evidence being presented by the

accused) made a positive case against the defendant, and the jury could not have done other than convict him. The special assignment of error that the court did not charge upon the law of confessions is wholly without merit. See, in this connection, Story v. State, 145 Ga. 43 (2) (88 S. E. 548). The court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Luke, J.

text:
    17352.
    MOMAN et al. v. BANKERS HEALTH & LIFE INSURANCE COMPANY.
    1. The conditional acceptance of the past-due premiums after the contract of insurance had lapsed did not have the effect of reinstating the policy.
    2. By reason of its custom of accepting past-due premiums and maintaining the policy of insurance in force after it had lapsed for failure to pay premiums in accordance with the terms of the contract, the insurer waived the right to invoke the forfeiture clause in the policy, and the court erred in overruling the certiorari.
    Insurance, 32 C. J. p. 1348, n. 2.
    Life Insurance, 37 C. J. p. 495, n. 86 New; p. 536, n. 79.
    Decided July 13, 1926.
    Certiorari; from Bibb superior court—Judge M. D. Jones. March 3, 1926.

      J. D. Hughes, for plaintiff. Turpin, & Lane, for defendant.
   Luke, J.

Plaintiffs, who were beneficiaries in a policy of insurance issued to their mother by defendant, by their next friend sued the insurer, in the municipal court of Macon, for a death claim of $50 alleged to be due them under the terms of said policy. A verdict was directed for defendant. The case was carried by certiorari to the superior court, and the judge overruled the certiorari.

The policy, issued August 13, 1923, stipulated for the payment of a weekly premium of twenty-five cents to the defendant “or its authorized representative, on or before each Monday during the continuance of this contract.” The death benefit under the policy was $50, and the weekly sick benefit, $5. The policy contained the following pertinent clauses: “14. All premiums must be paid on Monday of each week, and any one failing to pay for four Mondays forfeits all he or sh.e may have paid the Company.” “16. No revival of policy shall be had except on payment of all back dues, and not then unless the insured is in good health.” The insured was shot in the back on June 15, 1925, and died from the effects of her wound on June 25, 1925. By its terms the policy of insurance lapsed on June 22, 1925, for non-payment of dues. On June 24, 1925, an agent of the insured paid to a Miss Criswell, at the company’s office, $1.50, which was enough to pay up all back dues and reinstate the policy. For said payment the following receipt was given:

“Revival Receipt. The Bankers Health & Life Insurance Company, Home Office: Macon, Ga.

“Received of Susie Moman $1.50, being the arrears on Policy No.........which'the applicant desires the Company to revive. If the Company accepts the revival application, the above account will be credited in the premium receipt book belonging with the above numbered policy; otherwise the money will be returned. Under no circumstances will the Company be liable under said policy, in case of death, unless the policy has been endorsed as having been revived on the books of the Company, and delivered during the lifetime and good health of the insured, and money credited in said Premium Receipt Book. If the policy is not revived the money will be returned. [Signed] E. Criswell, Agent.”

A witness for the plaintiffs testified that at the time she paid said $1.50 to Miss Criswell, “who was in charge of the office of the company,” she explained to her the serious condition of the insured; also that at the same time she presented a “sick claim” (which was in evidence), describing insured’s condition. Defendant’s vice-president swore that Miss Criswell’s duties were to receive premiums on policies at the defendant’s office, and that said $1.50 paid her, and for which said receipt was given, was tendered by witness to the attorney for plaintiffs in error after he had demanded payment of the policy. The evidence adduced as to the conditional accepting of past-due premiums by Miss ’ Criswell did not have.the effect of reinstating the insurance.

The controlling question in this case is whether or not by its conduct in accepting past-due premiums and maintaining the policy in force when by its terms it might have been terminated, the company waived the forfeiture clause of the policy, and estopped itself from claiming the right of forfeiture as against plaintiffs in error. The following appears from the record:

Premium due May 5, 1924, was not paid until June 28, 1924.

Premium due May 12, 1924, was not paid until -June 28, 1924.

Premium due May 19, 1924, was not paid until June 28, 1924.

Premium due May 26, 1924, was not paid until June 28, 1924.

Premium due Nov. 3, 1924, was not paid until Nov. 25, 1924.

Premium due Apr. 6, 1925, was not paid until May 5, 1925.

Without going further into this feature of the evidence, and without giving the many instances when past-due premiums were accepted at times more than “four Mondays” after they were due, suffice it to say that the foregoing is amply sufficient to establish a custom on the part of the defendant of accepting past-due premiums and continuing the policy in force when it could have declared the contract terminated under its express terms. But the able attorney for the defendant in error insists that the acceptance of past-due premiums when the insured was in good health did not warrant her in assuming that the insurer would accept such premiums when she was not in good health. The record being silent as to the condition of the health of the insured when the past-due premiums were accepted, we shall assume that she was in good health at such times. In Bankers Health & Life Ins. Co. v. Givvins, 12 Ga. App. 378 (77 S. E. 203), which is strikingly like the case at bar, the headnote reads: “Where the insurer, by his custom of dealing with the insured, in receiving, without objection, premiums or assessments past due, when he could have insisted upon a forfeiture, has induced the belief on the part of the insured that premiums or assessments can be paid within a reasonable time after they mature, the insurer can not claim a forfeiture because, at the time of the death of the insured, premiums or assessments were due by him which, had he lived, it is reasonable to suppose would have been accepted upon the same terms as those upon which other deferred payments had been received.” In Cotton States Life Ins. Co. v. Lester, 62 Ga. 247 (35 Am. R. 122), the court held, “That the conduct of the company, in its-habit of receiving premiums at other times than on the days fixed in the policy, operated as a waiver of time as of the essence of this contract with the insured; and that payment of the last premium within a reasonable time, according to custom, after due by the policy, was equivalent to payment on the day due by the policy, and that the policy is valid and binding, notwithstanding the sickness of the insured at the date of the last payment, and the insertion of the words in respect to her health by the home agent and secretary in the last receipt.” Applying the law to the facts of this case, we hold that the insurer had by its conduct waived the right to invoke the forfeiture clause in the policy, and that the court erred in overruling the certiorari.

Judgment reversed.

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


text:
    17357.
    Terry v. The State.
    Criminal Law; 17 C. J. p. 364, n. 36.
    Decided July 13, 1926.
    Certiorari; from Fulton superior court—Judge Humphries. March 11, 1926.

      Branch & Howard, B. G. Jaclcson, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Bloodwobth, J.

In the criminal court of Atlanta the plaintiff in error was convicted of possessing and controlling intoxicating liquor. By-writ of certiorari his case was 'carried to the superior court of Eulton county. The only allegation of error in the petition for certiorari is that the verdict is without evidence to support it. The jurors, the final arbiters on questions of fact, said by their verdict that there was evidence to authorize the conviction of the accused. In his order overruling the certiorari, the judge of the superior court said: “Upon a careful consideration of all the evidence in this case, I am of the opinion that it warranted the verdict.” It is well settled that where there is any evidence to support a verdict, and no error of law was committed on the trial, the judgment will not be disturbed. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    17359.
    Carroll et al., administrators, v. Burns & Son.
    Appeal and Error, 3 C. J. p. 978, n. 37.
    Decided July 13, 1926.
   Bloodwobth, J.

1. Grounds 4, 5, and 8 of the amendment to the motion for a new trial are based upon alleged error of the court in allowing in evidence “the books of plaintiff.” Neither the contents of the books nor any particular entries are disclosed in these grounds of the motion. They do not show enough to enable this court to determine the relevancy and pertinency of the evidence to which objection was made, and therefore are not in proper form for consideration. “A ground of a motion for a new trial which assigns error upon the admission of merely designated documentary evidence, without disclosing the contents of the writing admitted, can not be considered.” Yates v. State, 127 Ga. 813 (2) (56 S. E. 1017, 9 Ann. Cas. 620). See Spence v. Morrow, 128 Ga. 722 (3) (58 S. E. 356); McBurnette v. Huff, 154 Ga. 452 (114 S. E. 578), and cit.; McCollum v. Thomason, 32 Ga. App. 160 (8), 163 (122 S. E. 800), and cit.

2. None of the other grounds of the motion show any reason why a new trial should be granted, and the court properly directed a verdict for the plaintiff.

Judgment affirmed.

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

Complaint; from Habersham superior court—Judge J. B. Jones. December 4, 1925.

J. G. & E. E. Edwards, for plaintiffs in error.

I. E. Sutton, contra.


text:
    17362.
    Ward et al. v. Gardner.
    Appeal and Error, 3 C. J. p. 981, n. 74; 4 C. J. p. 864, n. 34.
    Costs, 15 C. J. p. 282, n. 11.
    New Trial, 29 Cyc. p. 951, n. 20 New.
    Decided July 13, 1926.
    Attachment; from city court of Oglethorpe—Judge Greer. March 22, 1926.

      Jere M. Moore, for plaintiffs in error.

      Jule Felton, John M. Greer, contra.
   Bloodwobth, J.

1. The request of the defendant in error, that damages be awarded him against the plaintiff in error for taking up the case for delay only, is denied.

2. The special ground of the motion for a new trial, which complains that the court refused to give to the jury certain instructions requested in writing, is not in proper form for consideration, it not being alleged that the requested instructions were pertinent and applicable to the facts of the case. Hightower v. State, 33 Ga. App. 73 (125 S. E. 511), and eit.

3. There is some evidence to support the verdict; and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732).

Judgment affirmed.

Broyles, G. J., and Lulce, J., eoncur.


text:
    17364.
    Morris v. The State.
    Criminal Law, 17 C. J. p. 264, n. 89; p. 971, n. 41.
    Decided July 13, 1926.
   Luke, J.

Upon conflicting evidence Morris was convicted of violating the prohibition statute. The evidence authorized his conviction; and the trial judge, having approved that verdict, properly overruled his motion for a new trial which was based upon the general grounds only.

Judgment affirmed.

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

Possessing intoxicating liquor; from city court of Floyd county —Judge Bale. March 29, 1926.

F. W. Copeland, J. L. Wallace, R. C. Stanton, for plaintiff in error.

Alec Harris, solicitor, contra.


author: Bloodworth, J.

text:
    17365.
    Bazemore v. The State.
    Criminal Law, 17 C. J. p. 121, n. 81.
    Decided July 13, 1926.
    Transporting intoxicating liquor; from city court of Sylvania— Judge Evans. April 2, 1926.

      David S. Atkinson, Bouhan & Atkins.on, for plaintiff in error.

      J. H. Howard, solicitor, contra.
   Bloodworth, J.

“Until there has been a judgment finally disposing of the case in the trial court, the Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the striking of a plea of former jeopardy, filed by the accused. Fugazzi v. Tomlinson, 119 Ga. 622, and cit.” McElroy v. State, 123 Ga. 546 (51 S. E. 596). See also English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292).

Writ of error dismissed.

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


author: Bloodworth; J.

text:
    17370.
    Johnson v. The State.
    Certiorari, 11 C. J. p. 158, n. 85.
    Decided July 13, 1926.
    Certiorari; from Fulton superior court—Judge Humphries. April 14, 1926.
   Bloodworth; J.

The exceptions are to a judgment of the superior court of Fulton county, refusing to sanction a writ of certiorari. The judgment of which complaint is made is as follows: “Thé court being of the opinion that the evidence warranted the verdict; that the issues of fact were by the court submitted clearly and fairly to the jui-y for their determination; and that the petition for. certiorari does not show harmful error, I decline to sanction the within petition for certiorari.” We think the conclusions reached by the trial judge are correct, and that he properly refused to sanction the writ of certiorari.

Judgment affirmed.

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

Audley McLane, for plaintiff in error.

Boy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.


text:
    17371.
    LONDON GUARANTEE AND ACCIDENT CORPORATION et al. v. WALLACE.
    The evidence in this case being sufficient to sustain the theory that the employee’s disability resulted directly and solely from “an accident arising out of and in the course of employment,-” and not from disease, the court did not err in sustaining the award of the industrial commission.
    Workmen’s Compensation Acts. C. J. p. 115, n. 37; p. 122, n. 40.
    Decided July 13, 1926.
    Appeal; from Eulton superior court—Judge Humphries. March 22, 1926.

      Bryan & Middlebrooks, for plaintiff in error.

      St. Clair Cibbs, contra.
   Luke, J.

This was a proceeding under the Georgia workmen’s compensation law (Ga. L. 1920, p. 167; 9 Park’s Code Supp. 19,22, § 3154(a) et seq.). An award by the Industrial Commission in favor of W. M. Wallace, the employee, and against the Atlanta Table Company, the employer, and the London Guarantee & Accident Corporation, the insurer, was, on appeal to the superior court, affirmed, and the defendants excepted.

W. M. Wallace testified, that while trying to turn a heavy flywheel, on December 28, 1924, he “felt something break,” and shortly after had a pain like a badly sprained ankle, and could hardly stand up; that his injury grew worse and worse until January 12, 1925, when he “dropped to the ground” and was carried home; that a doctor called in by him said that he had broken or strained some ligaments in his hip; that he had been a very strong man, had lost practically no time from his work during the twenty-five years he had been with the Atlanta Table Company, and had not within his recollection had any doctor attend him for sickness; that his trouble was that he could not get up and down, that his hips hurt, and that it was painful to stoop over or get-up, and he had not been back to work since January 12, 1925, and could hardly “hop over the house.” Dr. Eoberts testified, that an examination made by him of Wallace on June 26, 1925, disclosed general stiffness of all muscles of the back, but that “the particular disability seemed to be connected with the left hip, and particularly the left sciatic nerve;” that his diagnosis was “sacroiliac strain and sciatic nerve involvement of the left leg,” and that his opinion rendered as the physician of the Industrial Commission was, “claimant possibly disabled from manual labor; the period of disability can not be determined at this time;” that the employee’s condition could have been caused by lifting a fly-wheel; that he was “a rheumatic patient” and had the cause of his disability in his system before he was injured; that the disease made him susceptible to the injury; that in all probability he -would not have been injured if he had not had the disease, and that “the lift on the fly-wheel was the trigger which precipitated his disability;” that his rheumatic condition might alone have brought about his trouble; that he believed his lifting of the fly-wheel resulted “in the tearing loose •of some minute fibres in and about some inactive focus in and about the nerve, and that that was the actual bona fide cause of the beginning of this trouble;” that he would not say that the disease was the cause of the trouble, but that “the disease so prepared the man that a trivial accident made him disabled.”

The foregoing is not the testimony of all the witnesses, nor all the testimony of the witnesses mentioned, but is sufficient for the purposes of this decision. The Industrial Commission found that “This employee received an accidental injury arising out of and in course of employment, and has a disability resulting therefrom.” There is no question that the injury arose in the course of employment. The evidence supports the findings of fact of the commission, and the controlling question in the case is whether or not the evidence in the record supports the “order or decree complained of.” In this regard counsel for plaintiffs in error say that the employee’s rheumatic condition at the time he was injured, and not his injury, was the cause of his disability, and that his disease did not result “naturally and unavoidably” from his injury. There was evidence in this case sustaining the theory that the lifting of the fly-wheel was the original and only cause of the employee’s disability ; and it is not necessary to determine whether or not, within the meaning of the act, his rheumatism resulted “naturally and unavoidably from the accident.” The court did not, for any reason assigned, commit error in sustaining the award of the Industrial Commission.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    17373.
    Avera v. Marshall.
    Appeal and Error, 3 O. J. p. 967, n. 40 New.
    Evidence, 22 0. J. p. 485, n. 82; 23 0. J. p. 50, n. 64.
    Trial, 38 Cyc. p. 1571, n. 16.
    Decided July 13, 1926.
    Complaint; from Crawford superior court—Judge Malcolm D. Jones. April 16, 1928.
    Application for certiorari was made to the Supreme Court.

      J. J). Hughes, for plaintiff in error.

      K. P. Lowe, Homer Beeland, contra.
   Bloodwokth, J.

1. A ground of the motion for a new trial alleges that “the court erred in the following point and particular: The court asked Mr. Avera if he agreed to let the mules go. The witness answered, Yes, sir, they took the: mules. I could not help myself at the time.” Holding that the statement of the witness, “I could not help myself at the time,” was a conclusion, it was ruled out. This was not error. Moreover, this ground is not complete and understandable within itself. It would be necessary to refer to other parts of the record to ascertain what “mules” were referred to, and who it was that was referred to when the witness said: “They took the mules.” (Italics ours.)

2. The first headnote in Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294), is as follows: “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. & A. R. Co. v. Evans, 96 Ga. 481; Freyermuth v. R. Co., 107 Ga. 32; Ray v. Green, 113 Ga. 920; Farmer v. Davenport, 118 Ga. 289. And he ‘is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.’ Southern Bank v. Goette, 108 Ga. 796.” Under the principle announced in the foregoing quotation and the facts of this case, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    17376.
    McRAE v. THE STATE.
    The evidence did not authorize a conviction of simple larceny.
    Larceny, 36 C. J. p. 903, n. 35.
    Decided July 13, 1926.
    Larceny; from city court of Baxley—Judge Speer'. March 29, 1926.
    Cigars and a tire were stolen by a witness for the prosecution. The evidence tended to show, not that the plaintiff in error participated in the theft, but that the stolen goods or some of them were afterward put into his possession.

      J. B. Moore, for plaintiff in error.

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

McRae was convicted of the offense of simple larceny. The evidence did not authorize his conviction, and for this reason the court erred in overruling his motion for a new trial.

Judgment reversed.

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


text:
    17377.
    Barton v. The State.
    Criminal Law, 16 C. J. p. 1058, n. 29; p. 1218, n. 53 New; p. 1220, n. 97, 97 New; 17 C. J. p. 91, n. 76 New; p. 177, n. 88; p. 271, n. 41,
   Bloodworth, J.

1. Each ground of a motion for a new trial should be complete within itself, and by and of itself should point out error. A ground of the motion which alleges that “the court failed, to charge the contention of the defendant,” without naming any “contention,” is too indefinite to be considered.

2. Before a ground of a motion for a new trial based upon the refusal of the court to give written instructions to the jury can be considered, it must appear from the ground itself that the request “was tendered to the court before the jury retired to consider of their verdict.” Smith v. State, 27 Ga. App. 268 (108 S. E. 67). The ground should show also that “the requested instructions were pertinent and applicable to the facts of the case.” Hightower v. State, 33 Ga. App. 73 (125 S. E. 511).

3. Without a request the trial judge is not required to give in charge to the jury “a contention,” a theory of the defense, Which is raised by the statement of the defendant only. Sanford v. State, 31 Ga. App. 160 (2) (120 S. E. 29); Isom v. State, 32 Ga. App. 75 (2) (122 S. E. 722).

4. This court can not say as a matter of law that the verdict is without evidence to support it; and it having been approved by the trial judge, and no error of law having been committed,-under the uniform rulings of this court and the Supreme Court a reviewing court is powerless to interfere.

Decided July 13, 1926.

Violating liquor law; from city court of Macon—Judge Hall. April 15, 1926.

Application for certiorari was made to the Supreme Court.

Bari W. Butler, for plaintiff in error.

Roy IF. Moore, solicitor, contra.

5. Tlie motion to arrest the judgment was without merit and was properly overlooked.

Judgment affirmed.

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


text:
    17379.
    WILSON v. THE STATE.
    Conviction supported by evidence, and approved by trial judge, not reversed.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided July 13, 1926.
    Aiding escape; from Eulton superior court—Judge Howard. April 3, 1926.

      John 0. Owen, Gharles G. Reynolds, for plaintiff in error.

      John A. Boykin, solicitor-general, J. IF. LeOraw, John H. Hudson, contra.
   Luke, J.

Wilson was indicted and convicted of the offense of assisting a convict to escape from a convict camp. His case is here for review upon the sole contention that the evidence does not authorize his conviction. We can not say that there was not some evidence to authorize the defendant's conviction; and since that conviction has the approval of the trial judge, the judgment overruling the motion for a new trial must be

Affirmed.

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


text:
    17384.
    Martin v. The State.
    Criminal Law, 16 C. J. p. 607, n. .63 New; p. 875, n. 19; 17 C. J. p. 271, n. 41.
   Bloodwobth, J.

1. The refusal of the trial judge to continue the case, when considered in connection with his qualifying note in regard thereto, was no abuse of discretion.

2. For no reason assigned did the court err in allowing to go to the jury the evidence to the admission of which complaint is made in the amendment to the motion for a new trial.

Decided July 13, 1926.

Possessing intoxicating liquor; from city court of Blackshear —Judge Mitchell. April 9, 1926.

Andrew J. Tuten, for plaintiff in error.

8. Thomas Memory, solicitor, contra.

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

(б) In a prosecution for possessing intoxicating liquor it is not error to admit evidence that on other occasions, both before and after the date of the offense charged in the accusation, such liquor was found in the possession of the accused. See Jones v. State, 32 Ga. App. 7 (122 S. E. 738), and cit. This is true even though the evidence shows that liquor was found in the possession of the defendant on the day of the trial.

3. This court will not say that there was no evidence to authorize the jury to reach the conclusion that the defendant was guilty. Their verdict has the approval of the trial judge; and as no error of law is shown to have been committed on the trial, this court can not interfere.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    17386.
    OLIVER v. THE STATE.
    The conviction was authorized by the evidence.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided July 13, 1926.
    Selling intoxicating liquor; from Toombs superior court—Judge Hardeman. March 23, 1926.

      Gorbitt & Pope, for plaintiff in error.

      Walter P. Grey, solicitor-general, G. W. Lankford, contra.
   Luke, J.

Oliver was convicted of violating the prohibition statute, and his case is here upon the ground that the evidence did not authorize his conviction. The evidence amply authorized the defendant’s conviction, which has the approval of the trial judge. The motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Blood wobte:, J.

text:
    17387.
    Brewer v. The State.
    Criminal Lw, 16 C. J. p. 1218, n. 53 New; p. 1219, n. 67; 17 C. J. p. 177, n. 88; p. 233, n. 83.
    Decided July 13, 1926.
    Making intoxicating liquor; from Heard superior court—Judge Boop. April 12, 1926.

      Smith & Millicm, for plaintiff in error.

      W. Y. Athinson, solicitor-general, contra. -
   Blood wobte:, J.

1. No error was committed when the motion to continue was overruled.

2. Each ground of a motion for a new trial should be complete and understandable within itself; should of itself show error. Neither of the grounds of the motion based on the admission of evidence does this. There was no error in refusing a new trial on 'either of the grounds of the motion complaining of the admission of evidence.

3. There is ample evidence to support the verdict.

Judgment affirmed.

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