text:
    18459.
    BLOOMBERG-MICHAEL FURNITURE CO. v. URQUHART.

      Decided June 16, 1928.

      Lawrence & Abrahams, Andrew J. Ryan Jr., for plaintiff.

      Lawton & Cunningham, for defendant.
   Bell, J.

(After stating the foregoing facts.)

1. One of the grounds of the motion for a new trial was that the court erred in instructing the jury that the defendant was charged with the exercise of ordinary care, the contention being that the defendant, by his own testimony, was a common carrier under the laws of Georgia and therefore bound to use extraordinary care. The court did not err in giving the charge complained of. In the first place, the petition failed to allege that the defendant was a common carrier, but proceeded upon the theory that he was a private carrier only, and, under section 2711 of the Civil Code (1910), any person undertaking to transport goods as a private carrier is bound only to ordinary diligence. Furthermore, even- if the suit could be construed as charging the defendant as a common, carrier, there was evidence from which the jury could have inferred that the defendant was not at the time of the transaction with the plaintiff engaged in the business of a common carrier, and had neither dealt with nor become obligated to it as such. The defendant testified: “We did not hold ourselves out to take anybody’s freight offered to us. We would make a specific engagement for each piece of freight.” F. M. Helmly, who represented the defendant in arranging for the shipment, testified as follows: “No, it is not a fact that Mr. Urquhart took any shipments that anybody offered him of anything. We would not take any shipment of anything. Before shipment Mr. Urquhart would have to make a special contract with you. We reserved the right to take the shipments we wanted and decline what we didn’t want. For instance, if a man came to us with a carload of lumber . . we would not accept it unless we wanted it or could carry it to advantage. We reserved the perfect right to decline. As a matter of fact we declined a great many shipments. A great many people tried to ship by our barge and we would not let them. We only took what we wanted.” Section 2712 of the code provides as follows: “One who pursues the business constantly or continuously for any period of time, or any distance of transportation, is a common carrier, and as such is bound to use extraordinary diligence. In cases of loss the presumption of law is against him, and no excuse avails him unless it was occasioned by the act of God or the public enemies of the State.” In Fish v. Chapman, 2 Ga. 349 (2) (46 Am. D. 393), it was held that “To make a person a common carrier, he must exercise it as a common employment; he must undertake to carry the goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice.” See also Central of Ga. Ry. Co. v. Lippman, 110 Ga. 665 (36 S. E. 202, 50 L. R. A. 673). There is no contention that the judge erred in not submitting to the jury, as an issue of fact, the question of whether the defendant was a common carrier. The assignment is that the charge of the court was error because as a matter of law the defendant was such a carrier. Under the above evidence this assignment can not be sustained.

2. Several grounds of the motion for a new trial complain that the court erred in submitting to the jury the above-quoted provisions of the instrument issued by the defendant on the loading of the goods, and said by him to constitute a bill of lading, but claimed by the plaintiff to be a mere receipt for the cargo, without any sort of force as a contract of carriage. The court in several charges made reference to the stipulations providing to the carrier the right to use lighters, and requiring that, in case of loss, damage, or delay, certain notice should be given by the shipper as a condition precedent to recovery. The contention of the plaintiff in error is in effect that the court erred in treating the instrument as a bill of lading, determinative of the rights and Habilites of the parties, and in not holding to the contrary, as a matter of law, that the stipulations contained therein were in nowise binding or enfoxceable as a contract. The position of the plaintiff in error is that since the document was signed only by the agent of the defendant and was not expressly assented to in writing or otherwise by the plaintiff, the provisions thereof should not have been considered.

It is true that the defendant as carrier was the only signatory party. It is further true that the plaintiff was without knowledge of the contents of this paper, unless through Yellow Cab Company, until after it was issued and the transportation begun, and for the purposes of this case we will assume that the Yellow Cab Company had no authority to make a special contract containing such provisions as those referred to.

The bill of lading was evidently forwarded to the plaintiff by its agent, in due course; for on April 23, 1926, the plaintiff wrote to the defendant a letter seeking a settlement of the damages and containing the following statement: “We enclose you B/L covering shipment of January 12th, 1926, which you made for our account to Yellow Cab Company, Savannah, Ga., to us to Miami, Florida, freight prepaid.” It also appears that the plaintiff had previously placed the bill of lading in the hands of M. C. Praig, its agent to receive the shipment in Miami. Praig testified: “On arrival of the goods at destination there was a man there supposed to do the checking, and he asked me if I had a bill of lading for the goods. I showed him the bill of lading. He said, Go ahead and handle yours.’ ”

So, even though the cab company may not have been empowered as the plaintiff’s agent to enter into an agreement embodying the stipulations which the plaintiff now claims it never assented to, there was in the evidence ample ground for inferring that the plaintiff ratified the act of that company in so doing. In the absence of anything to the contrary, the plaintiff presumably acquainted itself with the several provisions of the agreement before adopting the same as its own act, and there is nothing to show any effort at repudiation until the instrument was raised against it after litigation begun. Pilcher v. Smith, 31 Ga. App. 606 (121 S. E. 701); Thompson v. Neely, 32 Ga. App. 131 (123 S. E. 171); Hall v. Vann, 32 Ga. App. 281 (2) (123 S. E. 172).

Counsel for the plaintiff in error argue that as to the question now' under consideration the case is governed by section 2726 of the Civil Code (1910), and that on application of the principles

therein expressed the special provisions of the bill of lading relied on by the defendant can hot be regarded as a part of the contract. That section provides as follows: “A common carrier can not limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract, and will then be governed thereby.” Even under this section a shipper may be bound by the terms of the bill of lading without signing it where it is duly executed by the carrier and assented to by the shipper. In Kavanaugh v. So. Ry. Co., 120 Ga. 62, 66 (47 S. E. 526), the Supreme Court said that if the contract had been executed in Georgia, it would not be binding unless it was signed by the shipper; but in So. Express Co. v. Hanaw, 134 Ga. 445, 449 (67 S. E. 944, 137 Am. St. R. 227), this expression in the Kavancmgh case was regarded as “an inadvertence, meaning that there must be an express agreement by the-shipper, the most ordinary method of showing such agreement being by signing.” Compare Robinson v. Belcher, 37 Ga. App. 412 (140 S. E. 412); 36 Cyc. 213. But assuming that the contention of the plaintiff should be sustained as the correct and proper view if the defendant should be dealt with as a common carrier, the argument can not stand except upon that hypothesis; whereas, under the evidence, the jury Were authorized if not required to find that the defendant was a private carrier only; and the provisions of section 2726 have nothing to do with private carriers. We are unable in any view to find place for the application of the Georgia rule as above expressed. The rule is not only inapplicable in case of private carriers, but could not be invoked in the present case even if the defendant were a common carrier; for, to treat the case as a controversy between a shipper and a carrier of that class, the transportation was by sea and was of such a character as to be governed by the acts of Congress, the bill of lading and the principles of the common and maritime laws as accepted and enforced by the Federal courts, Congress having by the passage of various acts so manifested its intention to take possession of the subject of the liability of carriers in such cases and to supersede all State regulations regarding the same as to invalidate the provisions of any State law upon the subject. It is sufficient to mention only the Act of March 3, 1851, known as the limited liability act (Lord v. Goodall &c. S. Co., 102 U. S. 541 (26 L. ed. 224); Headrick v. Va. & Tenn. Air Line Ry. Co., 48 Ga. 545), and the act of February 3, 1893, commonly called the Harter act (27 Stat. 445, c. 105, U. S. Comp. St. 1901, p. 2946), as to the applicability of which to a shipment of this sort, see The Silvia, 171 U. S. 462 (43 L. ed. 241); The Chattahoochee, 173 U. S. 540 (19 Sup. Ct. 491, 43 L. ed. 801, 806); Knott v. Botany Mills, 179 U. S. 69 (21 Sup. Ct. 30, 45 L. ed. 90); Levy’s Son & Co. v. Gibson Line, 130 Ga. 581 (61 S. E. 484). In Butler v. Boston &c. S. Co., 130 U. S. 527 (9 Sup. Ct. 612, 32 L. ed. 1017), the Federal Supreme Court said: “As the constitution extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature, and not in the State legislatures.” See also Norwich & N. Y. Trans. Co. v. Wright, 80 U. S. (13 Wall.) 104 (20 L. ed. 585); and compare Southern Express Co. v. Byers, 240 U. S. 612, 614 (36 Sup. Ct. 410, 60 L. ed. 825, L. R. A. 1917A, 197); Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. (N. S.) 257); Chicago &c. R. Co. v. Miller, 226 U. S. 513 (33 Sup. Ct. 155, 57 L. ed. 323).

This, of course, does not mean that a case of this character may not be cognizable in a State court. 1 C. J. 1253, and cit. The point here is, that where the principles of the maritime law are applicable, the rights of the parties should be determined thereunder whether the proceeding be instituted in an admiralty court or in a common-law court. Carlisle Packing Co. v. Sandanger, 259 U. S. 255 (42 Sup. Ct. 475, 66 L. ed. 927); Robins Dry Dock Co. v. Dahl, 266 U. S. 449 (45 Sup. Ct. 157, 69 L. ed. 372). Having seen that if the defendant was a common carrier, all questions as to the rights of the parties are to be adjudicated according to principles that would govern in Federal jurisdictions, we think it plain that the plaintiff, on that hypothesis, should be held to the stipulations relied on by the defendant and submitted by the judge in his charge as effective terms of the contract of affreightment. In N. Y. Central &c. R. Co. v. Beaham, 242 U. S. 148 (37 Sup. Ct. 43, 61 L. ed. 210), it was held that a stipulation limiting a carrier’s liability for baggage, printed on the face of the ticket and accepted by the passenger, was presumed to have been assented to although the passenger did not read it; and in American Ry. Express Co. v. Lindenberg, 260 U. S. 584, 591 (43 Sup. Ct. 206, 67 L. ed. 415), it was said that a shipper, by receiving and acting upon an express receipt for an interstate shipment, signed only by the carrier, assénts to its terms, and it thereby becomes the written agreement of the parties. Section 4 of the Harter Act makes it the duty of the owner of the vessel or its agent to issue to shippers a bill of lading; and in negotiating for transportation to which the act would be applicable, the shipper would supposedly contemplate that a bill of lading would be issued to him on the loading of the cargo.

In what we have just said we have assumed that the Federal laws referred to in that connection, like the provisions of section 2726 of the Georgia code, are applicable only to common carriers, the plaintiff, who is here the plaintiff in error, contending that the defendant was a carrier of that class. If the principles are inapplicable because the defendant was a private carrier, we are still of the opinion that the bill of lading in this ease could not have been ignored. Under the ordinary canons of construction, taken with the doctrine of ratification, the plaintiff, by the acceptance of the bill of lading, presumably assented to its terms. Robinson v. Belcher, 37 Ga. App. 412 (140 S. E. 412), supra. The contention of the plaintiff that the contract of carriage was wholly a parol one can not be sustained. In the absence of fraud, accident, or mistake, oral negotiations eventuating in an unambiguous written contract are to be regarded as merged in or extinguished by it and the writing is to be treated as the exclusive medium of ascertaining the agreement to which the contracting parties became bound. Logan v. Bond, 13 Ga. 192 (3); Capps v. Edwards, 130 Ga. 146 (3) (60 S. E. 455); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954). Thus, in the present case the writing brought forward by the defendant as the bill of lading stands in the way of any consideration of what'the plaintiff claims was a mere oral agreement for the transportation. The rights and obligations of the parties can not be determined by the alleged oral agreement, because the writing stands as an impassable barrier between the court and any agreement of that character.

Stipulations like those considered in this case are not unreasonable, and, when assented to upon proper consideration, are valid and enforceable. St. Louis & I. M. R. Co. v. Starbird, 243 U. S. 592 (37 Sup. Ct. 462, 61 L. ed. 917); Queen of the Pacific, 180 U. S. 49 (21 Sup. Ct. 278, 45 L. ed. 419); So. Ry. Co. v. Adams, 115 Ga. 705 (42 S. E. 35); So. Ry. Co. v. Tollerson, 129 Ga. 647 (59 S. E. 799). There was no merit in any of the exceptions to the charge of the court having reference to the terms and conditions of the bill of lading.

3. But it is said that the verdict was contrary to the evidence and to the law as given in charge, because it appeared without dispute that three articlés of furniture included in the cargo and of the aggregate value of $44.75 were never delivered at the port of Miami and were unaccounted for. As shown in the above statement, the bill of lading provided that in case of failure to make delivery the shipper should give notice of the loss within 30 days after the goods should have been delivered, and that the giving of such notice was a condition precedent to the liability of the carrier for such cause. The evidence authorized the inference that the bill of lading was not complied with in this respect. We can not say that the verdict was unsupported, nor that any error of law was committed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18550.
    DEARISO v. MOBLEY, superintendent of banks, et al.

      Decided June 16, 1928.

      Perry & Tipton, for plaintiff in error.

      0. A. Parle, O. N. Davie, G. 8. Reid, Passmore, Forehand & Ford, contra.
   Bell, J.

On July 15, 1926, T. R. Bennett, superintendent of banks, took possession of the Farmers & Merchants Bank of Sylvester, Georgia, for liquidation under the banking act of August 16, 1919 (Ga. L. 1919, p. 135). On October 7, 1926, an execution was issued by the superintendent, by W. J. Davis, general agent, against Mrs. Mollie Deariso, one of the stockholders, for the purpose of enforcing her statutory liability as such, in pursuance of an assessment made against the stockholders for the benefit of the depositors. To a levy of this execution upon her property Mrs. Deariso filed an affidavit of illegality, and, the issues formed thereby having been submitted for trial in the superior court upon an agreed statement of facts, before the presiding judge without a jury, and the trial having resulted in favor of the plaintiff in fi. fa., Mrs. Deariso, the defendant in fi. fa., excepted. Some time after the execution was issued, Mr. Bennett resigned as superintendent of Banks and was succeeded by A. B. Mobley, who has since prosecuted the ease as plaintiff in fi. fa. and is made a defendant in error in the bill of exceptions. The execution was issued upon the theory that Mrs. Deariso was the owner of six shares of stock, and proceeded for a recovery of $600, the full amount which could be assessed against the holder of that number of shares. In one ground of the affidavit of illegality Mrs. Deariso pleaded that at the time the bank failed she was the owner of only three shares of stock, and thus in no event could be held responsible for more than $300 on her statutory liability as a stockholder. Another ground of the affidavit raised the questions whether the superintendent may confer authority upon an agent to issue such an execution; and, if so, whether the appointment under which the agent purported to act in the particular instance was effectual for that purpose, and also whether the execution was in proper form as to the manner- in which it was signed and issued. It will be observed that we have four questions for decision, and the facts in relation to each question will be noted in the opinion.

The first question is whether Mrs. Deariso owned six shares of stock or only three shares at the time the bank failed on July 15, 1926. The bank’s original capital stock was $2-5,000. By a first amendment to its charter, this amount was increased to $50,-000. Only $17,000 of the additional stock, however, was actually paid in, and on January 13, 1926, the bank was operating on a paid-in capital of $4-2,000. At a meeting of the stockholders held on that date a resolution was adopted reciting the fact that the capital stock had become impaired more than 10 per cent., and that it was necessary to assess the various stockholders in an amount sufficient to raise the value of the stock to par. This resolution provided that the assessment upon the stock should be made by diminishing the holdings of each shareholder by 50 per cent., each shareholder to surrender the certificates representing the stock then owned by him, and to receive new certificates in one half the amount. By this plan, the then outstanding capital stock would be reduced from $42,000 to $21,000. The resolution proposed also an application for a second amendment to the charter, reducing the capital stock to $25,000, and provided for the sale of 40 shares of new stock at the par value of $100 per share, “to bring the new capital up to $25,000.” An application for the amendment was duly filed with the secretary of State, and, after it was referred by that officer to the superintendent of banks, who certified his approval in terms of the statute, the application was granted by the secretary of State on May 12, 1926, as evidenced by his certificate to the effect that the “State of Georgia hereby amends the charter of the said ‘Farmers & Merchants Bank’ by changing its capital stock from fifty thousand ($50,000) dollars to twenty-five thousand ($25,000) dollars.” It is only with this, the second amendment, that we are concerned in this case.

The copy of the application was advertised once a week for four weeks prior to its filing, as required by law. Before this publication had been completed, and thus before the application for the amendment had been acted upon and granted by the secretary of State, all the stockholders surrendered their certificates to the cashier, in pursuance of the resolution of the stockholders adopted on January 13, 1926, and in the expectation that new stock would be issued to them in the amount of 50 per cent, of that surrendered as provided by the resolution. And, to quote from the agreed statement, “before receiving the certificate of amendment the officers of said bank had obtained an agreement with parties to sell them the 40 shares of new stock in said bank at the par value of $100 per share; and checks were issued to said bank by certain of said parties agreeing to buy same, aggregating $3900, and were delivered to said bank with the understanding with these subscribers that when checks had been obtained for the full amount of $4000 that all of said checks be cashed and certificates of stock be issued to each purchaser of said stock according to his subscription. The one share of $100 shortage in the $4000 of the checks is explained as follows: G. L. Warren, the cashier of this bank at the time, who handled the matter of selling this stock, agreed to take and pay for this share, but accepted a position at Waycross and moved there a month before the bank closed, and never put up his check or paid his subscription. At the time the bank closed, the cheeks, aggregating $3900 on this stock, were in hand by said bank. Said checks were never cashed by said bank or in any way used by it as an asset. No new certificates of stock were ever issued in consideration of said checks. At the time the bank closed, all of said checks were good except two or three, in which cases the parties placing these checks did not have deposits sufficient to pay their cheeks. In one or two instances these subscribers had made notes to said bank and these notes had been discounted and placed to their credit in order to make their cheeks for said stock good. The old certificates of stock that had been surrendered for the purposes of the proposed reduction were never cancelled, and no new certificates of stock were ever issued in lieu of them, but, on the contrary, said bank continued its business under these conditions for about forty days and until it was forced to close its doors on the 15th of July, 1926. Business was continued in the same manner, the general ledger showing of the capital stock $42,000 outstanding, as it had done ever since the amendment to charter increasing the capital stock from $25,000 to $50,000 and this sale of $17,000 of this increase. There was never any meeting of the stockholders after said amendment to charter of date May 12th, 1926, was granted, the meeting held by said stockholders on January 13, 1926, being the last meeting held by them before the bank closed on July 15, 1926.”

The six shares of stock owned by Mrs. Deariso were evidenced by certificate number 218, and this, like the certificates of all the other stockholders, wa's surrendered to the officers of the bank in accordance with the resolution of January 13, 1926, and remained of file with the cashier until the bank was closed on July 15 following. I-Ier name continued upon the books as one of the stockholders, and there was no entry of any sort purporting to cancel her stock or the certificate thereof, nor was any new certificate ever issued to her as was contemplated by the resolution referred to.

In discussing the matter of the number of shares owned by Mrs. Deariso at the time the bank failed, that is, of whether the plan for the reduction of the amount of stock owned by each of the shareholders had become effective, the counsel have given considerable attention in their briefs to the question of whether the amendment to the charter, as granted by the secretary of State on May 12, 1926, had become operative. It is contended by counsel for the plaintiff in error that in view of what had been done previous^, the number of shares owned by each of the stockholders was cut in half instantly on the granting of this amendment, and that no acceptance of the amendment by the stockholders or the corporation was necessary for the accomplishment of that end. On the other hand, it is insisted by counsel for the defendant in error that the amendment to the charter did not become effective in the absence of acceptance, either express or implied, on the part of the corporation or its stockholders, after the order allowing the amendment had been promulgated.

It seems to be the general rule that in order for a material amendment to the charter of a corporation to become effective, it must be accepted formally by the stockholders, or else must be acted upon by the doing of the things which it contemplates or the transaction of business thereunder. Chattanooga &c. R. Co. v. Warthen, 98 Ga. 599 (7) (25 S. E. 988); 14 C. J. 184. But irrespective of what may ordinarily be necessary to put into effect an amendment to the charter of a bank, we think, in the particular case, that it was never contemplated that the amendment should become effective until the bank was recapitalized in the sum of $25,000. It may be true that, in view of the fact that all of the old stock had been surrendered with the intention on the part of the individual stockholders and of the bank that new stock would be issued in half the amounts, the issuance of certificates for the new stock might not have been necessary in effectuating the change in the amount to be owned by each shareholder; but, from all the facts appearing, construed in the light of the law, we are of the opinion that until some person or persons became the owners of the full amount of the new stock to be issued, the original status was not altered. All that was done toward procuring an amendment to the charter preceded the certificate issued by the secretary of State; nothing whatsoever was done afterwards. The bank continued to operate as upon a capital of $42,000, and never at any time acted upon the subscriptions for the new stock. Unless ownership of the new stock by some person or persons other than the bank had become effectuated, the amount of the stock of Mrs. Deariso and of others in like situation could not have been diminished as contended without reducing the entire capital stock to an amount materially less than that prescribed in the amendment and below the minimum required by law for such an institution. We are therefore of the opinion that the principal question for determination is whether the proposed new stock had been disposed of in such manner that the subscribers became stockholders, and were thus subject to assessment on the basis of such stock for the benefit of depositors as contemplated by law. While it may not havetbeen necessary that certificates of stock should have been issued to such subscribers, a more offer to purchase stock, as by an unaccepted subscription, is not enough to create the relation of stockholder. A person ordinarily becomes a stockholder by means of a contract between himself and the corporation, and an offer to subscribe for or purchase stock must be accepted expressly or impliedly by the corporation, and the fact of such acceptance must be communicated to the other party or manifested by some act equivalent to communication or notice thereof. The mutual assent of the parties is a requisite to the establishment of legal relations, just as in other contracts; and where in special instances conditions precedent exist, they must be complied with. .14 C. J. 515, 838.

Checks are not payment until they themselves are paid, and no acceptance of the subscriptions or of the checks appears to have been made in this case. By the very terms of the subscriptions here involved, there could be no effective acceptance “until checks had been obtained for the full amount of $4000.” This provision was a condition precedent in the subscriptions and was never complied with, the aggregate of all checks posted amounting to only $3900. So we think there were never, in fact, any effective contracts for the purchase of the new stock. Furthermore, it is our opinion that the particular charter amendment contemplated that the new stock should not only be contracted for, but actually paid for, before the old stock could be considered as having been reduced.

We advance two propositions: (1) that the sale of the new stock for cash was a condition precedent to the reduction of the old stock; and (2) that no such sale was ever consummated. In the further discussion we will examine certain provisions of the banking act which we deem to be relevant in the support of each of these- conclusions. A capital stock of $25,000 was not only exacted by the amendment to the charter, but the banking act, in article 8, section 1, subsection 3 (Ga. L. 1919, p. 164), requires a capital not less than this amount for any bank organized in a city, town, or village of a population of more than 1,000, according to the last preceding Federal census; and for the purposes of this case this court will take judicial cognizance of the fact that the city of Sylvester, by the census of 1920, had a population of more than 1,000. Fidelity & Deposit Co. v. Smith, 35 Ga. App. 744 (134 S. E. 801); 23 C. J. 161. We further know, without proof, that the original charter of the Farmers & Merchants Bank was granted on August 19, 1911, and fixed the capital stock at $35,000. Sheppard v. Ga. Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868). This was the minimum capital permitted by law at that time. Civil Code (1910), § 3369. In any view, it would have been unlawful for this bank ever to have operated on a lesser amount of subscribed capital. While the superintendent of banks issued his approval of the amendment to the charter in question, he must have done so on condition that the law in regard thereto was or would be complied with. This condition was necessarily implied, in view of section 5 of article 9 of the act referred to. That section provides, among other things, that whenever an application for amendment to the charter of a bank shall have been referred to the superintendent (as required by section 4), he shall by investigation satisfy himself that the amendment is proper and has been duly authorized by corporate action, “and in case said application is for the increase of the capital stock, that the amount of such additional capital has been paid in, in cash, except where surplus is capitalized, and in case said application is for the reduction of the capital stock, that the method by which such reduction is accomplished is proper and fair to all the stockholders, and that the capital stock is not reduced below the amount required by law for such bank, and that all the requirements of law have been fulfilled.” If the superintendent is satisfied as to all matters as to which he is required to make investigation, he shall within thirty days issue a certificate approving the amendment and transmit a copy of such certificate to the secretary of State, who shall enter the same of record in his office. The superintendent’s approval and the amendment itself must both be construed in the light of the provisions above referred to, and when so construed they can not be taken as permitting the reduction of the capital stock to a sum less than $35,000.

The amendment must also be construed in view of the application, the basis of which was the resolution of the stockholders of January 13,. 1936. If there were no enforceable contracts for the sale of the new stock, it would be unnecessary to determine whether the resolution contemplated that the same should be paid for in cash as a condition precedent to the effectuation of such amendment and the reduction of the old stock. But even assuming the existence of valid and binding contracts with regard to the new stock as between the subscribers and the corporation, this, in our view, would not have been sufficient to alter the status as between the corporation and the old stockholders. Payment for the new stock in cash seems to have been contemplated by everybody. The resolution hereinbefore so often referred to mentioned no other terms. The subscribers themselves, except one, posted checks for the amount of their subscriptions, even though some of the checks were not good at the time. The general rule is that where in a sale of property there is no agreement or custom concerning the time of payment, the presumption is that the price is to be paid on delivery. McCarthy v. Nixon Grocery Co., 126 Ga. 762 (56 S. E. 72). Under section 7 of article 8 of the banking act, a bank may be authorized to commence business upon the payment of only 60 per cent, per share of the capital stock, but the remainder of the capital stock “shall be paid in within one year, in such installments as may be approved by the superintendent of banks, and the payment of each installment shall be certified to the superintendent of banks under oath by the president or cashier of the bankand sections 5 and 9 of article 9 clearly require that in all instances of the issuance of new stock upon any terms other than cash, the conditions of payment must be made known to the superintendent and have his approval. Under section 2 of article 9, a certified abstract from the minutes of the stockholders must accompany the application for the amendment. In none of the proceedings filed was there any statement or suggestion as to the sale of the stock except for cash, and the superintendent was not called upon to approve or disapprove any arrangement for installment or deferred payments. We thus conclude that it was one of the conditions of the amendment that the new stock should be actually paid for in cash before the amendment would become effective, and that in the meantime the old stock was not reduced. See Fulgam v. Macon & Brunswick R. Co., 44 Ga. 597; 7 C. J. 494. As to the amount for which the execution was issued, the execution proceeded properly upon the theory that Mrs. Deariso was the owner of six shares; and the ground of the affidavit in which she alleged that she was the owner of only three shares was without merit.

We come next to the question of whether the execution could be issued only by the superintendent of banks, that is, of whether this officer could delegate his authority to issue the execution by the appointment of some other person as agent to do so. The superintendent may be regarded as the State’s agent to execute the banking laws, and those whom he shall designate to serve for different purposes as agents under him may be classed as subagents. No agent may delegate his authority unless he is specially empowered to do so (Civil Code (1910), § 3571), and, for reasons that are entirely obvious, this rule is usually given a very strict, if not a literal, application' in case of public officers. “The discretionary powers conferred upon public agents are in the nature of a trust and unless authorized so to do the persons chosen can not delegate them.” 1 Am. & Eng. Enc. Law (2d ed.) 974. It has been said that even the ministerial duties of a public officer may not be discharged by another where they are expressly required by law to be performed by the officer in question. Tietjen v. Merchants Nat. Bank, 117 Ga. 501 (2) (43 S. E. 730). Even a subpoena commanding the presence of a person in court as a witness must be signed by the clerk, or his deputy, in order to be legal. Horton v. State, 112 Ga. 27 (37 S. E. 100). As to the power of the clerk to delegate certain other duties, the Supreme Court, in Williams v. Batten, 156 Ga. 620 (119 S. E. 709), said: “The provisions of the Civil Code (1910), § 5557, with reference to service upon nonresidents, by publication, being in derogation of the common law, must be strictly and literally construed. The requirement of that section that the notice therein referred to shall' be mailed by the clerk does not permit the delegation of that duty to any person other than a lawful deputy clerk; and from failure of the clerk or deputy clerk to personally perform this duty failure of service by publication results. Such service is void; and where there is no service there can be no valid judgment or decree.”

The proper discharge of the duties of the office of superintendent of banks requires ripe experience and extraordinary skill and judgment in the business of banking, and the law creating the office necessarily contemplates that any one appointed to this high position should be possessed of these qualifications. Considering the responsible duties which are placed by the law upon this officer, and the capacity and wisdom requisite in a person holding such position, we think there is great reason in the present case for adhering rigidly to the general rule that an agent may not delegate his authority unless he is specially empowered by his principal (here the State) to do so, and thus for construing strictly any statutory provisions permitting such delegation. And yet it is entirely permissible for any principal to allow his agent to appoint other agents, and to grant to them such authority as the principal may prescribe. So, in the absence of constitutional limitation, the legislature, as the law-making power of the State, may confer upon the superintendent of banks whatever authority that body may deem to be proper, including the power to delegate such authority to other persons. The rule that the power of an agent or of a public officer can not be delegated seems to be everywhere subject to the exception that it may be delegated on express authority from the principal. Both in the decided cases and in the text-books the'statement of the rule usually carries with it a statement of the exception. To determine, therefore, whether the superintendent of banks may appoint an agent with authority to issue executions like the one in question, it is necessary to consider the statutes having reference to the functions and powers of this officer. Section 10 of article 2 of the banking act provides that he may appoint an assistant superintendent, who shall take the same oath as the superintendent and shall give bond in a named sum, with the same conditions as those prescribed for the bond of the superintendent. But in the present case we are not concerned with any question of the power of an assistant superintendent. The appointment which we have under consideration was the appointment, not of an assistant superintendent, but of an agent. As will be shown later, it purports upon its face to have been made under sections 9 and 10 of article 7, neither of which contains any reference to an assistant superintendent. In the first mentioned of these sections it is provided: “The superintendent may, under his hand and official seal, appoint an agent to assist him in taking possession of, liquidating and distributing the assets of any bank under the provisions hereof, the certificate of appointment to be filed in the office of the superintendent, and a certified copy thereof delivered to such agent. Such agent shall receive a salary, to be fixed as hereinafter provided, for the time he is actually engaged in assisting in liquidating the affairs of the bank. The superintendent may authorize such agent to perform such duties connected with such liquidation and distribution as the superintendent himself could in person do and perform.” It is thus expressly provided that whatever may be done in the liquidation and distribution of the assets of a bank by the superintendent may be done by an agent duly' and properly appointed by him, where he deems it proper to confer, and does confer, such extensive powers upon another.

“Liquidation,” in its general sense, means the act or operation of winding up the affairs of a firm or company by getting in the assets, settling with its debtors and creditors, and appropriating the amount of profit or loss. 5 Words & Phrases, 4180; 3 Words & Phrases (2d series), 153. The word is used in a very comprehensive sense in the banking act of this State, as a reading of that statute will readily demonstrate. Section 7 of article 7 is in part as follows.: “TTpon taking possession of the assets and business of any bank, the superintendent is authorized to collect all moneys due to such bank, and to do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided.” “Assets” would ordinarily mean the property owned by the bank as a corporate entity, and would not include the statutory liability of stockholders (Runner v. Dwiggens, 147 Ind. 238, 46 N. E. 580, 36 L. R. A. 645; Minn. Mfg. Co. v. Langdon, 44 Minn. 37, 46 N. W. 310); and while the word appears to have been used with this meaning in several places in the banking act, it is nevertheless given a larger signification in section 7 of article 18, for it is there provided that the individual liability of stockholders shall be an asset of the bank to be enforced only by and through the superintendent.

There was a similar provision in a prior statute (Ga. L. 1894, p. 76; Civil Code (1910), § 2249), with reference to which the Supreme Court, in the case of Moore v. Ripley, 106 Ga. 556 (2) (32 S. E. 647), said: “Further, by the act of 1894 (Civil Code, § 1890), which is above cited, this liability of stockholders is placed among the assets of the insolvent corporation, and it is declared that the receiver is the proper person to sue and enforce the liability, thus making that officer the statutory plaintiff. We know of no reason why there should be any other defendant than those liable under the provisions of the statute. The receiver represents all the parties at interest; he represents the bank as well as all the creditors,” See also Wheatley v. Glover, 125 Ga. 710 (13) (54 S. E. 626). “When the superintendent of banks takes possession of an insolvent bank for the purpose of liquidating its affairs, he acts in the capacity of a statutory receiver. Carey v. Giles, 9 Ga. 253; Bennett v. Wheatley, 154 Ga. 591 (115 S. E. 83).” Bennett v. Green, 156 Ga. 572 (3) (119 S. E. 620). The enforcement of the statutory liability of stockholders by assessment and execution is one of the duties enjoined upon the superintendent where the other assets are insufficient to pay the depositors in full. See article 7, section 20.

If the assets must be taken to include the liability of the stockholders, and if the issuing of executions for the enforcement of such liability, where necessary, and the payment of the resulting fund to depositors, are a part of the liquidation and distribution of the assets of the bank, and if, as expressly provided in the banking act, the superintendent may authorize an agent “to perform such duties connected with such liquidation and distribution as the superintendent himself could in person do and perform,” it seems to follow, as a necessary conclusion, that he may empower such agent to issue the executions. Whether he might also confer authority upon an agent to make the assessment against the stockholders on the basis of their stock is a question not made in this case and that question is not decided. See in re Giles, 21 Fed. (2d) 536. Among other powers conferred upon the superintendent is the authority to bring suit, and this is in addition to his duty in regard to the issuing of executions against the stockholders. See article 7, section 7 of the banking act, and also Ga. L. 1922, p. 65. It could hardly be doubted by any one that the “getting in” of the assets, including the making of collections on any liability, would be a matter which the superintendent could entrust to an agent. In fact, when we consider what may be the multitude of his duties, the necessity of acting through others in such matters would appear to be absolute. A general authority to collect will, in the absence of an agreement to the contrary, usually include the power to bring suit to enforce payment, provided the agent may resort to only the ordinary and legitimate processes for that purpose. Strong v. West, 110 Ga. 382 (35 S. E. 693); 2 C. J. 633. The execution which was issued in this case was only a mode of suit, and by the special provisions of the banking act is made the usual and common method, if not the only method, of proceeding against stockholders where they fail to respond to the notice of assessment. Bennett v. Wheatley, 154 Ga. 591 (3), 604 (115 S. E. 83). Where there has been assessment and notice and' refusal or neglect to pay, an execution must issue. How then can it be of such great importance to the stockholder as to who shall issue it? Of course, it can be issued only by one legally authorized, but the point is, there are other things which would seem to involve larger responsibility, the doing of which the superintendent could unquestionably entrust to another. We believe the main mental difficulty in assenting to the legality of an execution issued by an agent is the novelty of it; but its novelty is, of course, not a reason for condemning it if the law has provided for it. It is our opinion that the superintendent may confer upon an agent authority to issue such an execution.

The question next arises, was the appointment under which Mr. Davis purported to act in issuing the particular execution effectual as empowering him to issue it ? The power of attorney or commission under which he acted and the only authority claimed for him was as follows: “Georgia, Fulton County: Under and by virtue of the power and authority granted in sections 9 and 10 of article seven of the banking act, and amendments thereto, originally approved August 16, 1919, I hereby appoint W. J. Davis, General Agent to supervise the liquidation of all banks now or which hereafter may be placed in liquidation, and to make distribution of their assets as is provided by law, and until and unless this power and appointment be revoked. He is authorized to do and perform such duties in connection therewith as I may and could in person do or perform. This power shall specifically include and bestow upon the said W. J. Davis right to execute and deliver in the name of any bank in liquidation any and all conveyances, bills of sale, transfers or assignments of real and personal property, or choses in action, as fully and as completely as said bank or the undersigned on behalf of the said bank could or might do in its or his own name. And shall also include the right to collect all funds due said banks, convert their assets into cash,'and to deposit all funds and check out the same. This appointment to be effective upon the giving of a bond in the full penal sum of fifty thousand dollars, conditioned upon the faithful performance of his duties as such agent. This 23rd day of July, 1926. T. B. Bennett, Superintendent of Banks (seal). Executed in the presence of Luther Roberts, J. F. Kemp, N. P. Ga., State at large.”

Sections 9 and 10, as mentioned in this document, and section 1 of article 7 are the only provisions of the banking act which could be construed as warrant for the appointment of any agent with power to issue executions for the enforcement of the liability of stockholders. The section last referred to merely provides that under certain circumstances a bank which has become subject to his administration may be taken possession of “by the superintendent himself or by a duly authorized agent.” From what we have said in the second division of this opinion, we think it would be improper to enlarge the meaning of these provisions by a liberal construction; and it"is perhaps true, as contended by the plaintiff in error, that the agent whose appointment is provided for in section 9 is not a general agent to assist in the liquidation of such banks, in general, as may be taken over by the superintendent, but is an agent who is expected to have part in the liquidation of a particular bank and whose appointment should be made for that specific purpose. It would seem also to be the law that until a bank has failed and its assets are subject to sequestration by the superintendent, there is no occasion for the appointment of an agent under any of the provisions referred to, and that in the meantime the authority of the superintendent to appoint such an agent is in abeyance. It is not necessary, however, to decide these questions in the present ease, and we make no adjudication regarding them. The Farmers & Merchants Bank had failed and had been placed in the hands of the superintendent prior to the date of the appointment now under consideration. The power of attorney made reference to “all banks now . . in liquidation,” and this was to include the Farmers & Merchants Bank of Sylvester, since the facts, as they existed at the time, were such as to bring that bank within such general description. There were special' facts in existence authorizing the superintendent to appoint an agent, and while the agent so appointed was designated as a general agent, and while the power of attorney attempted to confer a general authority for which the statute may have made no provision, the act of the agent which is attacked in this case was not a general act relating to “all banks now or which hereafter may be placed in liquidation,” but was a special act relating to a particular bank shown to have been in the superintendent’s possession for the purpose of liquidation at the time of the making of such appointment. Even though the power of attorney may have sought to confer greater authority than the superintendent could have conferred under the law, we think it is nevertheless valid so far as it included authority which the superintendent was authorized by law to delegate. Anything else may be rejected as surplusage. Furthermore, even assuming that it was necessary that the particular bank, should be designated under the hand and official seal of the superintendent, the description of the subject-matter in the particular instrument was sufficient to furnish a key to the identification of the bank as to which the agent acted in issuing the execution. Boyd v. Sanders, 148 Ga. 839 (98 S. E. 490). It is immaterial that the agent may have been called a general agent and may have signed the execution as such, if his act in issuing it was not otherwise invalid.

If the person who issued the execution in this case was authorized to issue it at all, it was proper for him to do so in the name of the superintendent by himself as agent. Where an officer is authorized by law to appoint a deputy, it is generally the case that the deputy, .on receiving the appointment, derives his authority from the law and not from the officer appointing him; and, therefore, acts requiring official signature, when done by a deputy, should be executed in his own official right and not in the name of the principal officer. Ballard v. Orr, 105 Ga. 191 (31 S. E. 554); Biggers v. Winkles, 124 Ga. 990 (53 S. E. 397). A different form of execution, however, would seem to be proper where the act is performed through an agent. In that case the power exercised is derived from the person or official from whom the agent received his appointment, and the accepted form of signature is that which was adopted in issuing the instant fi. fa. See Ballard v. Orr, supra; 2 C. J. 671. Under the agreed statement of facts, the trial court was right in rendering judgment in favor of the plaintiff in fi. fa. on each ground of the affidavit of illegality.

Judgment affirmed.

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


author: Luke, J.

text:
    18862.
    LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE v. BURKETT.

      Decided July 10, 1928.

      Porter & Mebane, for plaintiff in error.-

      Maddox, Maddox & Mitchell, W. M. Sapp, contra.
   Luke, J.

Carl Burkett sued the Life and Casualty Insurance Company of Tennessee on a policy issued by that company on the life of James Bobert Burkett, in which plaintiff was beneñciary. The jury found for the plaintiff, the court overruled the defendant’s motion for a new trial, and the movant excepted.

There was a special demurrer to the petition, upon the ground that copies of material parts of said policy, to wit, the application for insurance and the answers of the insured to the medical examiner, were not attached to the petition. The policy provides that'“This policy and the application therefor shall constitute the entire contract,” and that “This policy is subject to the conditions and provisions stated on this and the following pages hereof, which form a part of this contract as fully as if recited at length over the signatures hereto affixed.” The Civil Code (1910), § 5541, provides as follows: “In suits to recover money on an insurance policy it shall not be necessary to attach a copy of what may be written or printed upon the policy, except what appears upon the face or in the body of the policy.” It is deducible from the language of the court in the case of Southern Mutual Insurance Co. v. Turnley, 100 Ga. 296, 300 (27 S. E. 975), that a copy of only such stipulations as are “embraced in that part of the policy which precedes the signatures of the officers by whom it is executed” need be attached to the petition as an exhibit. In this case a copy of what appears upon the face of the policy over the signature of the president of the company is attached to the petition. Therefore the above-stated ground of the demurrer was not good, and the court correctly so held. The overruling of the ground of the demurrer which attacks parts of the notice to produce, as failing to describe with sufficient definiteness the receipts and other papers connected with the policy, was not reversible error. It was insisted that the court erred in overruling the motion to strike the notice to produce, because the notice was contained in the plaintiff’s petition. In the law as to. notice to produce papers we see nothing that inhibits the giving of such notice in the petition. See Civil Code (1910), § 5837 et seq.

There are two special grounds in the motion for a new trial. The first of these is, that, after ruling that Mrs. Hester Burkett, widow of the insured, should produce the family Bible purporting to show his age, under a subpoena duces tecum issued at the instance of the insurance company, the court erred in holding that counsel had the right to examine Mrs. Burkett only in regard to the said Bible. After Mrs. Burkett identified the said Bible, and testified that it appeared therefrom that her husband was born January 9, 1862, the court refused to permit the insurance company to prove by her that her husband had been afflicted with various serious diseases, and had been attended by doctors. “A female witness, though residing in the. county, is not obliged, as a general rule, to attend court in order to testify. The statute makes provision for the examination of such witness by interrogatories. Such a witness, however, may be compelled to attend by order of the court, for sufficient reasons assigned.” Bennett v. Patten, 148 Ga. 66 (95 S. E. 690), citing Powell v. Augusta &c. R. Co., 77 Ga. 192, 198 (3 S. E. 757); Augusta &c. R. Co. v. Randall, 85 Ga. 297 (5), 315 (11 S. E. 706). “While the statute permitting the interrogatories of such witnesses to be taken does not exempt them from attendance upon court, its provisions should be followed, unless it be shown to the court that it is necessary to have their personal attendance.” Augusta &c. R. Co. y. Randall, supra, cited in Estill v. Citizens &c. Bank, 153 Ga. 630 (113 S. E. 552). The court’s ruling was in effect that it was necessary for the witness to produce the family Bible in court and testify in regard to it, but that she should not be compelled to testify as to other matters. We see no error in this ruling. It does not appear that any attempt had been made to get the testimony of the witness by interrogatories. In short, we do not see how, within the meaning of the law, the failure of the insurance company to exercise its right to get the testimony of the witness in the usual manner designated by the statute can create a necessity for compelling her to come into court and testify at length. The judge had the right to limit the testimony of the witness as he did, and this ground of the motion is without merit. The only other ground in the amendment to the motion for a new trial is controlled adversely to the plaintiff in error by what has been said in regard to the first special ground.

As stated in the brief of counsel for the plaintiff in error, “The main contention of the defendant company in this case is that the evidence shows, without contradiction, that the insured, James Burkett, was guilty of fraud and material misrepresentations in obtaining the policy sued on, and that the misrepresentations were material to the risk, and that the verdict in the case is contrary to the law and contrary to the evidence.”

The first alleged false representation appears in the application for insurance in these words: “My name is James Robert Burkett. I was born in Tennessee, Sept. 1, 1867. My age nearest birth date is sixty.” It is alleged that on June 26, 1926, the date on which the insured signed the application containing this statement, ho was sixty-four years, eight months, and twenty-five days of age; that the type of policy issued was not written by the company on the life of any person over sixty years of age; and that the policy would never have been issued but for the said false representation.

According to the Bible introduced in evidence, the insured was born January 9, 1862. It also appeared that the insured had represented his age in applications to other insurance companies in such wise as to make him over sixty years old when he applied for the policy in the instant case. His wife testified that the record in the said Bible had been “traced from the old family Bible of his mother into our Testament, and from that Testament into this Bible;” that she did not know whether it was correctly transcribed; that the Bible in evidence had been in the insured’s possession for about fifteen years, and that he had said it was correct. Dr. W. M. Painter, the examining physician for the insurance company, testified: “I think Mr. Burkett told me at that time his age was fifty-nine or sixty, that he did not remember which; that it had been changed in some way, and that he was either fifty-nine or sixty was the best of his recollection. . . As well as I remember, he said he was either fifty-nine or sixty. . . I don’t think he knew about the date of his birth. . . He said he thought he was either fifty-nine or sixty. . . He told me he was uncertain about the year he was born.” Prank Haire testified: “My son was agent for the Life and Casualty Company. He had his desk on the east side, and I had my desk on the west side of the same office. My son, Henry, Dr. Painter, and Carl Burkett and Jim Burkett were present in my office. In that presence Jim Burkett said with reference to his age, when he got to answering these questions, “I can’t tell you whether I am nearer fifty-nine or sixty;” and he turned to me and said, “It was an old Bible and transcribed.” . . There in the office where my son, the agent of the company, was present, he said he did not know whether he was nearer fifty-nine or sixty; and I said, “You ought to be as positive as you can about it, for this is going down on paper;” and he says, “I don’t know. . . I will tell you why. . . The ages were put down .in the Bible by my daughter, and Mrs. McCurdy transcribed it from another book, and it was on the fiy leaf of the Testament, and it got worn, and my daughter took it ofi: of that and put it on the family Bible.”

From the evidence the jury had the right to conclude that both the agent who solicited the insurance and the medical examiner who examined the insured knew, at the time the alleged false representation was made, that, for stated reasons, the insured did not know what his age actually was. Notice to these agents was notice to the company, and the company is estopped from asserting that the insured made fraudulent representations as to his age. Mutual Life Ins. Co. v. Brown, 34 Ga. App. 301 (129 S. E. 307); Johnson v. Ætna Ins. Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92); Blackstock v. Jefferson Ins. Agency, 23 Ga. App. 642 (99 S. E. 142); Rome Ins. Co. v. Thomas, 11 Ga. App. 539 (3) (75 S. E. 894); Atlas Assurance Co. v. Kettles, 144 Ga. 306 (87 S. E. 1).

It is next contended that the insured, in his application for insurance, falsely stated that he had submitted no application for medical examination for life insurance upon which he had not been notified of the action thereon of the insurer. From the evidence it appears that when the application in the instant case was signed by the insured, he had then pending an application for industrial insurance in the Southern Insurance Company of Nashville, from which he had not heard, or rather on which a policy was not to be issued until later. We think that under all the evidence in this case the materiality of the representations made in the application raised an issue of fact for the jury. See Mass. Life Asso. v. Robinson, 104 Ga. 256, 287 (30 S. E. 918, 42 L. R. A. 261); Phenix Ins. Co. v. Fulton, 80 Ga. 224 (4 S. E. 866).

It was next contended that the insured falsely stated in his application for insurance that no application of his for life insurance had been declined or postponed, and that no contract, other than the one applied for, had ever been issued to him. It appears that an industrial policy in the Metropolitan Life Insurance Company for $75 had been applied for, issued and canceled. The materiality of these representations was for the jury. See authorities cited above. A similar defense to the two foregoing is that the insured stated in his application for insurance that he was not applying for other insurance, whereas he had pending, with the Southern Insurance Company of Nashville, Tennessee, his application for insurance with that company. As indicated above, we are of the opinion that the materiality of this representation was for the jury.

It is alleged that the insured falsely stated in his application for insurance that he had had no disease and had received no medical or surgical attention within the past five years; it being averred that within that time he was treated for typhoid fever by Dr. Eollins, and also that he was afflicted with a severe case of influenza and grippe in February, 1926. From Dr. Eollins’s testimony it appears that the insured was dangerously ill with typhoid fever in 1921, and that.the doctor “visited him every day, sometimes twice a day, from September 5, 1921, to September 19, 1921, inclusive;” also that “in his typhoid fever the last visit was on the 21st day of June, 1921.” In this state of the record it is impossible for this court to say whether or not the insured had typhoid fever within five years from his application for insurance bearing date of June 26, 1926. We find no evidence in the record that the insured had influenza and grippe in February, 1926.

It is insisted that the insured falsely stated in his application for insurance that.since childhood he had not had grippe, influenza, or pneumonia, or any disease of the heart. The plea alleges that four years prior to that statement he had pneumonia for a period of one hundred days, and was attended by Dr. Rollins; that he had grippe and influenza in February, 1926; and that at the time of making the alleged false statement, and for a long period of years, he had a disease of the heart. The record fails to sustain the defense that he had pneumonia as alleged. In his application for industrial insurance in the Southern Insurance Company of Nashville, Tennessee, he stated that he was last sick in March, 1920, and that his sickness was grippe. The record does not show that he had grippe and influenza in February, 1926. In view of the other evidence in the case, the materiality of the representation as to not having grippe was a jury question. The question as to heart disease was certainly a jury question, especially in the light of the testimony of the medical examiner for the insurance company that he made a thorough examination of the applicant and found nothing wrong with applicant’s heart or heart action. Jerry Burch testified that the insured had pneumonia “about a year after he had typhoid fever, . . along there.” Frank Haire testified that the insured had pneumonia in October before he died in January. This witness further swore: “I knew when he was sick with typhoid fever, when Dr. Rollins waited on him. He was never sick any more to my knowledge. I was living within two miles of him. I saw him frequently two or three times a week. Prior to his illness before he died in January, I was constantly associated with him.” It appears that the jury had the right to conclude that the insured had pneumonia after the date of his application, which was June, 1926. Again, in view of the perfectly clean bill of health given the insured by the company’s medical examiner, we think that even if the jury concluded that there had been a misrepresentation as to the insured’s having pneumonia, they yet had the right to say whether or not such misrepresentation was material.

It is contended that the insured falsely stated in his application for insurance that he was in good health, for the reason that lie then had dropsy and heart disease. Eegardless of any other testimony in the case, the jury had the right to conclude, under the following testimony of Dr. Painter, the company’s medical examiner, that the insured was in good health at the date of his application : “I found nothing wrong with his heart, heart action; neither did I find any dropsical condition or anything of that sort in this man.”

It is contended that the insured made a false and material misrepresentation in stating in his application that he did not have dropsy, and had not had it since childhood. Dr. Ault, who examined the insured for another insurance company on April 24, 1926, testified that his heart condition indicated dropsy. He further swore, however, that he did not see the insured when he had dropsy, and would not swear he had it. The testimony of Dr. Painter, referring to June 26, 1926, and quoted above, sustains the jury’s view of this matter.

It is contended that the answer of the insured to a question propounded by the company’s medical examiner, that he had not had any disease or injury requiring a physician or surgeon, other than as above stated, was false, fraudulent and material; it being alleged that the insured had had typhoid fever and pneumonia. The question as to pneumonia has already been discussed above in the sixth division of this opinion. Since the undisputed evidence of Dr. Eollins is that the insured had a very severe and protracted ease of typhoid fever in 1921, which nearly resulted in his death, and since this illness is especially stressed by the plaintiff in error, we shall briefly discuss this feature of the case. Dr. Eollins testified: “He recovered from the typhoid; got well apparently; got to where he could work and go out. I never saw anything to indicate there had not been a complete recovery: He was recovering when I dismissed him. I thought at the time-of my last visit he was going to get well, that all he needed was proper nourishment and attention. I saw him át intervals after that. I never saw any indications of any effects' of typhoid' fever.” Dr. Painter, who examined the insured for the company, testified: “When I examined this man for insurance I did it conscientiously. Nothing was the matter with him that I found. I did not see any evidence of any chronic disease, or drosy, or anything of that kind. I took a specimen of his urine and sent it to the company for analysis. . . I found nothing wrong with his heart, heart action; neither did I find any dropsical condition, or anything of that sort in this man. I thought he was a good risk. . . I made a thorough physical examination of him, heart- soundings, and blood pressure, and everything.”

We can not say that the jury did not have the right to conclude from the testimony of Dr. Eollins that the insured entirely recovered from typhoid fever; and from the testimony of Dr. Painter the jury had the right to believe that the insured was a good risk when examined by him. It appears from the record that Dr. Eollins found that the insured had a bad heart and dropsy “one, two, or three months prior to his death;” that this was during his last illness; and that he died of dropsy. In this connection Dr. Eollins testified: “That sort of condition might set up within a few weeks sometimes, and for several months prior to that he might not have known or anticipated any such trouble as that. Two or three months prior to that he might not have developed any symptoms that could have been attributed to this cause at all. From June 31, 1931, up to that date, I know of no trouble that he had.” It is uncontradicted that the insured stated in his application for insurance that he had not been attended by physicians, when, as a matter of fact, more than one had attended him. These representations, as well as the representations as to the insured’s health which were false, are governed by the rule that the materiality of false representations, when not indisputably established by the evidence, is a matter for determination by a jury. Brown v. Mutual Ins. Co., 29 Ga. App. 794 (1), and citations. We are aware that the officers of the plaintiff in error testified that each alleged false representation was material; yet since the materiality of these representations was a conclusion and a question for the jury, the jury were not bound to accept this testimony. See Brown case, supra, 795 (5). In those cases in which the court has held misrepresentations material as a matter of law, the materiality of the misrepresentations was unquestioned. The following cases which were relied upon by tbe plaintiff in error belong to that class: Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga. App. 704 (141 S. E. 498); Metropolitan Life Ins. Co. v. James, 37 Ga. App. 678 (141 S. E. 500); Sovereign Camp of Woodmen of the World v. Parker, 36 Ga. App. 695 (138 S. E. 86); Metropolitan Life Ins. Co. v. Shaw, 30 Ga. App. 97 (117 S. E. 106).

Very briefly stated, our view is that there was some evidence to support the verdict, and that for no reason assigned should the judgment be reversed.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    18883.
    CITY OF MANCHESTER v. BEAVERS.
    Decided July 10, 1928.

      W. B. Smith, J. F. Hatchett, for plaintiff in error.

      N. F. Culpepper, G. G. Thompson, contra.
   Bloodworth, J.

O. J. Beavers sued the City of Manchester, alleging in part that on December 26, 1924, about eight o’clock at night he fell into a hole which was located partly in Main street and partly in the sidewalk adjacent thereto, which hole was about 10 or 12 feet long, 4 or 5 feet wide, and 2 or 3 feet deep; that he was in the exercise of due care and diligence and without fault, but that the city had failed to exercise ordinary care to keep the said street and sidewalk in a reasonably safe condition for travel, and that the said hole had been in existence at the time of his injury for at least seven days or a longer period, and the city well knew of the existence of the hole and the defective condition of the street and sidewalk. He alleged that his back was sprained and wrenched, that his hands were bruised and cut, and that he was permanently injured and suffered on account of said injuries great physical and mental pain, and continues to suffer the same. He alleged that his artificial foot and leg, which he was wearing, was broken and crushed, that his clothing was torn and ruined, and that all of his injuries resulted in his damage in the sum of $2500. At the first term the defendant filed a plea. At the second term the plaintiff amended his petition and the defendant interposed oral demurrers, which were overruled, and it excepted pendente lite. The trial of the case resulted in a verdict for the plaintiff, for $1000, and the defendant filed a motion for a new trial, which was overruled, and it filed a bill of exceptions, assigning error on the rulings stated.

The petition was filed to the April term, 1927, of the city court of Greenville. An answer was filed to the first term. At the October term the petition was amended, but the amendment made no material change in the cause of action. Therefore these amendments did not open the petition to demurrer. Kelly v. Strouse, 116 Ga. 872 (1b) (43 S. E. 280). At the October term the defendant orally demurred to the petition as amended. These demurrers were properly overruled. “All exceptions to petitions and pleas shall be taken at the first term.” Austin v. Ferst’s Sons Co., 2 Ga. App. 91 (58 S. E. 318). See Brown v. C. & N. Ry. Co., 119 Ga. 88 (46 S. E. 71); Kelly v. Strouse, supra; Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714); Civil Code (1910), §§ 5628, 5630.

In a ground of the motion for a new trial which complains of the admission of testimony it must appear how the testimony which was admitted over objection was material, and how its admission could have been hurtful to the movant. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523). “Objections to the admission of testimony are insufficient where no specific ground of .objection is stated. An objection on the ground that the testimony is 'not competent or is inadmissible is not sufficient.” Parker v. State, 28 Ga. App. 673 (112 S. E. 908). See Citizens Banking Co. v. Jones, 34 Ga. App. 427 (129 S. E. 910), and cit. Under the rulings in the foregoing cases there is no merit in special grounds 1, 2, 3, 4, and 9 of the motion for a new trial, each of which alleges that evidence was admitted over objection and that it was “immaterial and irrelevant.” “Such objection is too general. The attention of the court must be called to the specific ground of objection at the time the evidence is offered; and unless this is done no question is raised for decision by this court. Andrews v. State, 118 Ga. 1 (43 S. E. 852); McDonald v. State, 21 Ga. App. 125 (6) (94 S. E. 262); Kelley v. Kelley, 142 Ga. 861 (83 S. E. 856).” Legg v. Legg, 165 Ga. 314 (140 S. E. 868). Moreover, in order to ascertain how or in what manner, or whether or not, this evidence illustrates any issue in the case, it would be necessary to look to other portions of the record, and, under repeated rulings of the appellate courts of this State, this ground will not be considered by the reviewing court. Tice Co. v. Evans, 32 Ga. App. 385 (16), 387 (123 S. E. 742), and cit.

The 5th ground of the amendment to the motion for a new trial alleges that the court erred in admitting, over objection, the following evidence: “I lost 18 days from my business on account of these injuries, 17 or 18 days on account of the injuries.” This ground shows no cause for the grant of a new trial. “A special ground of a motion for a new trial must be complete within itself, and this court will not consider a ground which complains of the admitting of specified evidence the materiality of which can not be determined without an examination of the brief of evidence or of some other part of the record.” Mayor &c. of Gainesville v. White, 27 Ga. App. 16 (107 S. E. 571); Veal v. State, 27 Ga. App. 300 (3) (108 S. E. 244); Cœsar v. State, 22 Ga. App. 796 (97 S. E. 255); Tice Co. v. Evans, supra; Wellborn v. State, 32 Ga. App. 55 (2) (122 S. E. 648); Veal v. Montgomery, 31 Ga. App. 20 (3) (120 S. E. 26).

“Rulings upon the sufficiency of pleadings are not proper subject-matter for a motion for a new trial.” Coulson v. State, 13 Ga. App. 148 (2), 150 (78 S. E. 1108), and cit.; Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E. 623), and cit.

The court is alleged to have erred in ruling out evidence of certain experiments made by one W. E. Smith. In DeLoach Mill Mfg. Co. v. Tutweiler, 2 Ga. App. 493 (3) (58 S. E. 790), it was held: “The admission of evidence of experiments is largely in the discretion of the trial court; and this discretion, unless manifestly abused, will not be controlled. Eor evidence of experiments to be admissible, there must be substantial similarity as to the essential and material fact affecting the comparison; -if the comparison be predicated upon substantially different facts, the evidence will not only be irrelevant but will tend to confuse the jury.” Eor evidence of experiments made out of court to be admissible they must be made under similar conditions to those they are sought to illustrate. Hicks v. State, 146 Ga. 221 (3) (91 S. E. 57). It is clear that the experiments as to which it was sought to submit evidence to the jury in this case could not have been made under the same conditions as the original transaction; hence they are not admissible. Moreover, we can not say that the trial judge abused his discretion in rejecting this evidence.

The court in charging the jury used the words “reasonable care and diligence” instead of th.e words “ordinary care and diligence,” and error is assigned thereon in the motion for a new trial. This is not such error as will require the grant of a new trial. In Goodwyn v. Central of Ga. Ry. Co., 2 Ga. App. 470 (4) (58 S. E. 688), this court held: “The words ‘ordinary care’ embody the same degree of diligence as the words ‘ ordinary and reasonable care and diligence,’ and have substantially the same significance. The words ‘ordinary’ and ‘reasonable,’ descriptive of diligence, are synonymous, and are used interchangeably in statutes and by the courts.” See also Atlanta, K. & N. Ry. Co. v. Tilson, 131 Ga. 395, 403 (62 S. E. 281); Central of Ga. Ry. Co. v. Mote, 131 Ga. 166 (5) (62 S. E. 164).

Under the petition and the facts developed on the trial, and in the light of the entire charge, the court did not err in either of the following excerpts from the charge of which complaint is made : “He seeks to recover for damages to his clothing were torn and ruined. Well, that is an element of damage for which he could recover, if the defendant is liable, if he has shown by evidence the amount of damage to his clothing.” “He also claims damage for his alleged permanent diminution of his ability to labor. That is also a matter for you to determine. Has his ability to labor been diminished ? Will it continue in the future ? If so, how long and to what extent does the evidence show his ability to labor has been diminished or impaired?” In Atlanta & West Point R. Co. v. Haralson, 133 Ga. 231, 235 (65 S. E. 437), Justice Lumpkin said: “If a plaintiff seeks to recover for pecuniary losses resulting from lost time or permanent diminution of capacity to labor and earn money, he should introduce evidence on which to predicate such a recovery. But it has been held in this State that permanent diminution of capacity to labor is an element of damages for the consideration of the jury, in determining the amount of such recovery, along with evidence as to pain, suffering, disfigurement or the like, although no pecuniary value is proved by the evidence. It has been said that the loss of capacity to work is in the nature of pain, though no pecuniary loss be shown;” citing Powell v. Augusta & Summerville R. Co., 77 Ga. 192, 200 (3 S. E. 757); Atlanta Street R. Co. v. Jacobs, 88 Ga. 647 (2), 648 (15 S. E. 825); Brush Electric Light & Power Co. v. Simonshon, 107 Ga. 73 (32 S. E. 904); Metropolitan Street R. Co. v. Johnson, 90 Ga. 500, 508 (16 S. E. 49). It is true that in the case of Atlanta & West Point R. Co. v. Haralson, supra, the judge charged, “If you find from the evidence that the plaintiff was injured, and that on. account of such injuries the plaintiff’s capacity to labor has been permanently lessened, then the plaintiff could recover therefor,” and that he refused a request to charge: “Before the plaintiff can recover anything as damages on account of lessened ability to labor, he must show by the evidence that his capacity to labor has been lessened, and the pecuniary value thereof.” The request to charge was too broad, and was erroneous because “the loss of capacity to work is in the nature of pain, though no pecuniary loss be shown.” The foregoing excerpt from the charge in that ease was held not erroneous, because the jury were “distinctly instructed that a right to recover on account of permanent impairment of capacity to labor, in the absence of proof as to earning capacity, did not authorize the recovery of anything on the latter ground, or for loss of time, that the plaintiff could recover nothing on these grounds, and that in arriving at their verdict they would allow nothing for loss of power or diminished capacity to make money or for loss of time, there being no evidence to authorize it. While the judge did not distinctly classify impairment of capacity to labor as being pain and suffering, under the ruling of Atlanta Street R. Co. v. Jacobs, supra, we can not say that his charge on the subject was such as to require a new trial.” Under the facts in the case of City of Augusta v. Owens, 111 Ga. 464, 479 (36 S. E. 830), the charge that “He would also be entitled to recover for his decreased capacity to work if you find from the evidence that the injury received is permanent” was sustained, the court saying in the opinion: “This charge we do not think authorizes the jury to have any reference to his diminished earnings, but it has reference only to his diminished ability to labor. But there is authority for the position that such permanent diminution of one’s power to labor constitutes an element of damages where it is the result of an injury sustained, though there be no evidence that it had any effect upon the earnings of the injured party. See Powell v. Aug. R. Co., 77 Ga. 200, where the principle is laid down that one who has to live long in pain is more damaged than one who has to endure suffering but for a brief term. With reference to damages from pain, we quote the following from the opinion in that case: ‘Tt may be thought that the loss of ability to labor is not pain, but this is a mistake. There is no greater blessing of life than ability to labor, even though the proceeds may belong to another. It is better for happiness, as well as for virtue, to work for nothing than be idle. A physical injury that destroys the power of a human being to labor is one of the most serious injuries that it is possible to inflict.’ ” Where a recovery is allowed for permanent diminution of one’s power to labor, and there is no evidence of diminished earning capacity, the recovery must be solely for mental pain caused by knowledge of such condition, and, as hereinbefore stated, the amount of such recovery must be measured by the enlightened conscience of impartial jurors. And so the judge charged in the case under consideration. See So. Ry. Co. v. Hill, 125 Ga. 354, 357 (54 S. E. 113).

When the entire charge is considered, the refusal of the court to give certain requested instructions, as set out in the 14th special ground of the motion, was not error. Moreover, this ground of the. motion 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).

There was ample evidence to support the finding of the jury.

Judgment affirmed.

Broyles, G. J., and Hulee, J., concur.


author: Broyles, C. J.

text:
    18891.
    Brown v. Western Union Telegraph Co.
    Decided July 10, 1928.

      Porter & Mebane, for plaintiff.

      Graham Wright, Howell, Heyman & Bolding, for defendant.
   Broyles, C. J.

This was a suit for nominal damages. A verdict for the plaintiff was demanded by the evidence, and the jury returned a verdict in his favor for $250. A motion for a new trial was made by the defendant, and, before it was heard, the plaintiff voluntarily, and without suggestion from the court, wrote off from the verdict and judgment the sum of $75, making the verdict and judgment $175. A new trial was granted upon the sole ground that in the opinion of the court the verdict was excessive as a matter of law. Held: “The trial judge has the discretion of granting a new trial on the ground that the verdict is excessive, when his mind and conscience disapprove the verdict as rendered, though the verdict is not so large in amount as to cany conviction of bias and prejudice on the part of the jury, and though the ease is one in which the only measure of damages is the enlightened conscience of the jury.” Smith v. Maddox-Rucker Banking Co., 8 Ga. App. 288 (68 S. E. 1092). See also Parks v. Stevens, 27 Ga. App. 180 (94 S. E. 60), and cit.; Brooks v. Jackins, 38 Ga. App. 57 (142 S. E. 574). Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18953.
    18954.
    Godwin v. The State. Moore v. The State.
    Decided July 10, 1928.

      J. P. Tomlinson, for plaintiffs in error.

      H. C. Morgan, solicitor-general, contra.
   Broyles, C. J.

In each of these cases the motion for a new trial was dismissed by the judge, and the only assignment of error in the bill of exceptions in each case is upon that judgment. In neither case, however, is such assignment of error argued or referred to in the brief of counsel for the plaintiff in error. In each case, therefore, the assignment of error is treated as abandoned.

Judgments affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18956, 18957.
    BUSH et al. v. STAHLE, administratrix (two cases).
    Decided July 10, 1928.

      J. D. Hughes, for plaintiffs in error. 8. ~W. Hatcher, contra.
   Luke, J.

Mrs. M. C. Stahle, as administratrix, instituted in the city court of Macon two separate suits, one against C. R. Bush, and the other against W. E. Jones, and in each suit alleged that her intestate and 0. R. Bush and W. E. Jones each indorsed the promissory note of W. R. Roberts, payable to the W. T. Rawleigh Company, of Freeport, 111., and that, the note having long since matured and remaining unpaid, and Roberts, the principal, having been adjudicated a bankrupt and having received his discharge in bankruptcy from said debt, and the note being in the hands of an attorney for collection from the indorsers thereon, she as such 'administratrix paid it in order to avoid judgment being entered up against the estate of her intestate, and because of such payment she prayed judgment against each defendant for one third of the amount paid. The defendants in each case demurred to the petition generally and specially, and the demurrers were overruled. Upon the trial the note, with the transfer thereon to the plaintiff, was introduced in evidence; also the schedule in bankruptcy in the matter of Roberts, bankrupt, as well as the testimony of Roberts that the defendants, along with plaintiff’s intestate, had signed the note as indorsers for him. The defendants introduced no evidence. In each case the court directed a verdict against the defendant. The rulings upon the admissibility of evidence which are complained of in each bill of exceptions were not erroneous for any reason assigned. The verdict in each case was demanded, and in each ease the court properly directed the jury to find for the plaintiff.

Judgment in each case affirmed.

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


text:
    18959.
    McNair v. Home Accident Insurance Co. et al.

    Decided July 10, 1928.

      Victor Dmidson, George H. Carswell, for plaintiff.

      Brock, Sparks & Russell, for defendants.
   Broyles, C. J.

Under the Supreme Court’s construction of sections 30, 31, and 32 of the workmen’s compensation act (Ga. L. 1920, p. 167) in Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 721), and the amendment to section 32 of the act (Ga. L. 1923, p. 95), the judgment of the superior court excepted to in the instant case was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18961.
    Chapman v. The State.
    Decided July 10, 1928.

      Rufus V. Jones, for plaintiff in error.

      John G. Mitchell, solicitor-general, contra.
   Broyles, C. J.

1. The defendant was convicted of manufacturing whisky. The undisputed evidence showed that he and another man were at a distillery which was in operation and running out whisky, and that both fled and escaped from the raiding officers. The defendant lived about a mile and a half away. No other persons were at the distillery. In his statement to the jury the defendant attempted to explain his presence at the distillery. Whether that explanation “was reasonable and satisfactory was a question for the jury; and the jury having rejected it as unsatisfactory to them, and their finding having been approved by the trial judge, this court has no authority to interfere.” See Flint v. State, 29 Ga. App. 222 (114 S. E. 585); Yonce v. State, 29 Ga. App. 173 (114 S. E. 584).

2. None of the special grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Luke and Bloodxoorth, JJ., concur.


text:
    18964.
    UNITED STATES FIDELITY AND GUARANTY COMPANY et al. v. PRICE.
    Decided July 10, 1928.
    Rehearing denied July 31, 1928.

      Bryan & Middlebrooles, 0. W. Russell, for plaintiffs in error.

      R. V. Harris and Phillips & Abbot, contra.
   Bloodworth, J.

Mrs. Ricey Price, on a'ccount of the death of her husband, filed a claim for compensation against the Middle Georgia Lumber Company and the United States Fidelity and Guaranty Company, alleging that her husband was in the emplojrment of the Middle Georgia Lumber Company when he was killed, and that the United States Fidelity and Guaranty Company was the insurance carrier. The ease was submitted to R. C. Norman, a member of the Industrial Commission of Georgia, and he decided that under the evidence the deceased was not employed by the lumber company, but that he was an independent contractor. The claimant asked that the award by Commissioner Norman be reviewed by the 'full commission; and upon such review the full commission reversed the ruling of Commissioner Norman and granted compensation to the claimant. The case then went to the superior court by appeal, and that court sustained the finding of the full commission. Upon each hearing the only question submitted was whether or not, at the time of his death, the husband of claimant was an employee of the Middle Georgia Lumber Company,— whether at that time the relation of employer and employee existed between the lumber company and the deceased. This was a question of fact which the full commission decided in favor of the claimant. There is some evidence to support their finding; their award was affirmed by the judge of the superior court; and where this is so, “under the law as laid down in United States Fidelity &c. Co. v. Christian, 35 Ga. App. 326 (3) (133 S. E. 639), this court is without authority to reverse the judgment of the superior court affirming the finding of the industrial commission.” Mary land Casualty Co. v. Miller, 36 Ga. App. 631 (137 S. E. 788). See also Jackson v. Lumberman’s Mutual Casualty Co., 33 Ga. App. 35, 36 (125 S. E. 515); Ocean Accident & Guaranty Corporation v. Council, 35 Ga. App. 632 (2) (134 S. E. 331), and cit.

Judgment affirmed.

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


text:
    18965.
    THOMPSON v. THE STATE.
    Decided July 10, 1928.

      Meriwether F. Adams, for plaintiff in error.

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

In the instructions given the jury, of which complaint is made in the petition for certiorari, there is no error requiring the grant of a new trial.

In the county court of Putnam county the plaintiff in error was convicted of possessing intoxicating liquor. By certiorari the ease was carried to the superior court. The record shows that the accused, when alone in a shed in a lumber yard, was arrested, with a jar containing whisky in his hands. An officer swore that “the defendant had gotten the jar down from where it was in the shed, and that he [defendant] had the jar in -his hands when he grabbed him.” The accused claimed that he had seen a negro hide the whisky and later went down to the shed to get a drink of it, and, as he reached for the liquor, the officer grabbed him and told him to give him the liquor. He stated that he then “took it down and handed it to him. It was not my liquor. I was going to take a drink.” The court submitted to the jury the question of whether or not the accused “took the container in his hand for the purpose of taking a drink only; in that event he would not be guilty.” This defense having been submitted to the jury, and the jury having rejected it and rendered a verdict of guilty, and the judge of the superior court having approved the finding of the jury and overruled the petition for certiorari, this court will not interfere.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    18968.
    Lawrence et al. v. Chattooga County.
    Decided July 10, 1928.

      E. 8. Taylor, Graham Wright, for plaintiffs.

      J. M. Bellah, Maddox, Matthews & Owens, for defendants.
   Broyles, O. J.

Under the pleadings and the evidence the verdict in favor

of the county was amply authorized, if not demanded; and neither of the two special grounds of the motion for a new trial shows cause for a reversal of the judgment.

Judgment affirmed.

Luke <md Bloodworth, JJ., concur.


text:
    18970.
    Whitley v. Postal Telegraph Cable Co.
    Decided July 10, 1928.

      L. B. Wyatt, for plaintiff in error.

      Robert L. Coioart, E. T. Moon, contra.
   Bloodworth, J.

The motion for a new trial in this case contains no special grounds. The jury determined the issue of fact in favor of the plaintiff; their verdict was approved by the judge who tried the case, and this court can not interfere.

Judgment affirmed.

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


text:
    18971.
    GOBER v. THE STATE.
    Decided July 10, 1928.

      E. 8. Griffith, for plaintiff in error.

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

Gober was convicted of simple larceny, upon proof of his possession of a stolen battery. When it was found in his possession-he explained his possession by telling where and from whom he bought it-. He introduced a witness who swore positively as to the purchase of the battery by the defendant; and the testimony of this witness was in accord and harmony with the explanation given by the defendant in his statement at the time it was found in his possession and upon the trial. This testimony was unimpeached, and, unless arbitrarily disregarded, fully explained the possession of the battery by the defendant. The defendant may be guilty, but, under the rules of law, the testimony of a witness who is unimpeached and uncontradicted, and which perfectly and reasonably explains his possession of the stolen property, can not be disregarded by the jury. Under all the facts of the case, the court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Broyx.es, C. J.

text:
    18974.
    Modern Brotherhood of America v. Seamans.
    Decided July 10, 1928.

      Sam Sparrow, Little, Powell, Smith & Goldstein, for plaintiff in error.

      George B. Rush, contra.
   Broyx.es, C. J.

Tlie overruling of the certiorari was not error for any reason assigned. The eases cited in the brief of counsel for the plaintiff in error are distinguished by their particular facts from this case.

Judgment affirmed.

Luke and Bloodworfh, JJ., concur.


text:
    18975.
    RELIANCE LIFE INSURANCE COMPANY v. CAPITAL NATIONAL BANK.
    Decided July 10, 1928.

      I-Iowell, Heymam, & Bolding, for plaintiff in error.

      Dorsey, Shelton & Dorsey, Ralph II. Farr, contra.
   Luke, J.

Capital National Bank brought suit in the superior court of Fulton county, upon an insurance policy issued upon the life of one Davis, now deceased. Under the terms of the policy the beneficiary was to be paid in 120 equal monthly installments of $1000 each, The suit was to recover the first two installments. The beneficiary is a resident of the State of Georgia, and the insurance company is not a resident of this State. Upon the ground of diverse citizenship the insurance companjq by proper petition in the superior court, sets up the diverse citizenship of the parties, and alleges that, “while the present action is to recover only the first two installments, aggregating only $2000, the actual matter in dispute is the right to recover $120,000, in 120 equal monthly installments of $1000 each.” The insurance company further ■contends, in its petition to remove the case, that if the plaintiff can recover the first two installments it could, by virtue of the recovery in the present action, recover each and every one of the future or subsequent installments, as the judgment in the present action would be res adjudicata as to all suits brought on subsequent installments; and that for these reasons the value of the rights involved, exclusive of interest and costs, exceeds the sum of $3000. The judge of the superior court denied the petition to remove the cause, upon the ground that the case was not by law removable, and retained the case in Fulton superior court for trial.

The court did not err in denying the motion to remove the case. It is the amount sued for in the petition which controls, and not the amount which may be subsequently sued for under the terms of the contract. Upon the petition to remove, the court can only consider the suit as filed, in order to determine whether the amount for which a judgment is prayed exceeds, exclusive of interest and costs, the sum of $3000. See, in this connection, Wright v. Mutual Life Ins. Co., 19 Fed. (2d), 117; Mutual Life Ins. Co. v. Wright, advance opinions of the Supreme Court of U. S., April 16, 1928. Judgment affirmed. Broyles, C. J., and Bloodworth, J., concur.


text:
    18977.
    Attaway et al. v. Odom.
    Decided July 10, 1928.
    Rehearing denied July 31, 1928.

      John Rogers, for plaintiffs in error.

      Oliver & Oliver, L. A. Heath, contra.
   Broyles, C. J.

1. The court did not err in overruling the demurrer.

2. “A large part of the evidence incorporated in the brief of evidence is made up of numerous lengthy documents which are set out in full in the record, no attempt being made to abbreviate or brief them as required by law. This being true, this court, as it has frequently ruled, will not undertake to pass upon the assignments of error requiring a consideration of the evidence. It will be presumed that there was sufficient evidence to authorize the verdict.” Henslee v. Harper, 148 Ga. 621 (2) (97 S. E. 667), and cit. Under this ruling and the state of the record in the instant case, this court “will not undertake to pass upon the assignments of error requiring a consideration of the evidence,” and “it will be presumed that there was sufficient evidence to authorize the verdict.”

3. The special grounds of the motion for a new trial (many of winch are too incomplete to be considered by this court) show no cause for a reversal of the judgment.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.