text:
    16753.
    TRAVELERS INSURANCE CO. v. WILLIAMSON, guardian.
    Under the Georgia workmen’s compensation act a child under eighteen years of age is conclusively presumed to he wholly dependent on the parent, and is therefore entitled to compensation for the homicide of the parent in accordance witli the provisions of the statute. The clause of the act providing that the term “child” as thus uSed shall include “stepchild” and that the term “parent” shall include “step-parents” is to be liberally construed as enlarging the sphere of conclusive dependency in favor of such a child, so as to include a right which would not otherwise conclusively exist. The provision is not to be construed as intended to exclude by unnecessary implication a plainly established claim for the homicide of an actual parent.

      Workmen’s Compensation Acts, C. J. p. 40, n. 95; p. 55, n. 23.

      Decided March 12, 1926.
    Appeal; from Chatham superior court—Judge Meldrim. July 27, 1925.
    Application for certiorari was denied by the Supreme Court.
    The judgment of the commissioner before whom the case was first tried was adverse to the claimant, being based on the theory that although the defendant insurance company had accepted premiums upon the risk assumed on account of the employment of the claimant’s actual parent, the act did not intend to provide double indemnity for the child; and that, since under it the child would be entitled to compensation for the homicide of the stepfather, who became the substituted parent by the terms of the act, he could not claim additional compensation as a dependent of his actual father. This ruling was reversed by the full commission. In the judgment rendered by the full commission it is stated that they can not agree with the theory that when the claimant’s mother remarried, the stepfather took the place of the natural father so far as any rights to compensation to the minor children were concerned. They go on to say: “The commission does not believe that it was the intention of the act to deprive a natural child of the compensation for the death of the father when minor children are conclusively presumed to be dependent upon the deceased parent, even though at the time of the death of the father this natural child was living with a stepfather.” In this judgment they argued their conclusion as follows: “Even though these children were living with and being supported by their stepfather, in no rvay was the relation of the children to their natural father changed. TJnder the common law the father is obligated to support his minor children, even though they may not be living with him, and he could have been required to do so had such been desired. The common-law provisions are in no way changed by the workmen’s compensation act where there is no conflict, and they do not conflict in this case. We think it far-fetched to say that although under the law these children could have been included under compensation as dependents of their stepfather, they can not secure compensation as the result of the death of their natural father.”
    On certiorari the superior court sustained the judgment of the commission, and Judge Meldrim entered a judgment which sufficiently indicates the facts of the case, as follows: “ Carter was the servant, Otto the master, the Travelers Insurance Company the insurer. Carter died from an injury which arose out of and in the course of his employment. Carter left two children of which Mrs. Williamson was the guardian. This action is brought by the guardian against Otto, employer, and the insurance company as insurance carrier. Mrs. Williamson, formerly Carter, had obtained a divorce from Carter and married Williamson. By the divorce decree the custody of the children was given to Mrs. Carter, now Mrs. Williamson, and Carter was decreed to pay $60 per month alimony. Williamson, his wife, and the two children lived together. Carter continued to pay $60 per month for the support of the children. ‘Their father took care of them in their schooling and gave more than $60 a month, sometimes as much as twenty and twenty-five dollars a week/ (Evidence of Mrs. Williamson, p. 2.) The insurance carrier refuses to pay the guardian, on the ground that the children were not dependents on Carter, their lawful father,' but on Williamson, their stepfather. The commission did not sustain this contention, but rendered judgment in favor of the guardian. From that judgment there is an appeal to this court. The insurance carrier received the premiums, and agreed to compensate the widow and children of Carter, either or both, as the case might be. It has escaped compensation to Mrs. Williamson, because she was not the widow of Carter. It now seeks to avoid compensation to his children, on the ground that, their mother having divorced-Carter and married Williamson, they became dependent on their stepfather. This contention is founded on section 39 of the Georgia compensation act, which provides that the term ‘parent’ shall include ‘step-parent.’ The true construction of this statute is that, if a stepchild is dependent on his stepfather, and the stepfather is killed or injured, then, for the purpose of this remedial statute, the stepfather should stand in law as he stood in fact, in place of the lawful parent. In the instant case the children were dependent on Carter, their father, and he was contributing to their support. To sustain the contention of the insurance carrier would be to relieve it from paying compensation to any one, notwithstanding the, fact that there had been no breach of the contract of insurance by either the insured or the beneficiaries. It could not have been the legislative intent to do this absurd thing. To commit this absurdity is to uproot the law of parent and child and to sever the ties of affection and dependence that bind them. The award of the commission is affirmed.”
    The part of section 39 of the workmen’s compensation act relevant to a determination of the question raised in the instant case is: “that the compensation provided for in section 38 shall be payable,, only to dependents and only during dependency. The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: (a) A wife upon a husband whom she had not voluntarily deserted or abandoned at the time of the accident. (&) A husband upon a wife with whom he lived at the time of her accident if he is then incapable of self-support and actually dependent upon her. (c) A boy under the age of eighteen, or a girl under the age of eighteen upon a parent. If a child is over the ages specified above, but physically or mentally incapacitated from earning a livelihood, he or she shall be presumed to be totally dependent. As used in this connection, the term 'boy,’ 'girl,’ or 'child’ shall include stepchild, legally adopted children, posthumous children, acknowledged illegitimate children, but shall not include married children; the term 'parent’ shall include step-parents and parents by adoption.”

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

      Bouhan & Atkinson, D. S. Atkinson, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) The ruling set forth in the syllabus may not be altogether, free from doubt and difficulty. We do not think that a dependent can recover under the workmen’s compensation act except by virtue of rights and remedies therein provided. Section 12 of the act provides that “the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death.” The act does not purport to define dependents, or specifically to fix and determine the persons who, as such, are entitled to the benefits conferred, except as to certain persons who are declared to be conclusively presumed to be such. Among this class are children under eighteen years of age, including stepchildren. As to other persons, whose dependency is not thus fixed and determined as a matter of law, the act provides that “questions of dependency, in whole or in part, shall be determined in accordance with the facts as the facts may be at the time of the accident.” Maryland Casualty Co. v. Campbell, 34 Ga. App. 311 (129 S. E. 447). In cases other than those in which dependency exists per se, and in which the claimant is required to make proof of such condition, it might well be that among the elements that are indicia of a state of dependency, account could properly be taken of a legal obligation to support (see case note, 13 A. L. R. 687), still, in a case in'which we are dealing with the rights of a child under eighteen years of age, it would clearly seem that the question of dependency, including the question as to whom he is dependent upon, is governed entirety by the terms of the act. Consequently, it does not follow, even though it be assumed under the law as it now is that the father in the instant case may have continued to be charged with the legal obligation to support and maintain the claimant child (Brown v. Brown, 132 Ga. 712, 64 S. E. 1092, 131 Am. St. R. 229; Hall v. Hall, 141 Ga. 361, 80 S. E. 992), and even though no such common-law obligation rested upon the stepfather (Marshall v. Macon Sash &c. Co., 103 Ga. 725, 30 S. E. 571, 41 L. R. A. 411, 68 Am. St. R. 140; Melvin v. Melvin, 129 Ga. 42, 58 S. E. 474), that the child must therefore be adjudged a dependent of the father within the meaning of the act, that being a question which is to be determined by the provisions of the statute itself. If, therefore, the statute should be construed to provide that in cases where a stepfather exists, the dependency of the child is shifted from a living father to the stepfather, then and under such a construction the child could not recover compensation on_ account of the homicide of the father. This is true for the reason that the act itself regulates the liability and speeifically declares that compensation of this character “shall be payable only to dependents and only during dependency” (§ 39).

The question, then, as we see it, resolves itself simply into a construction of the statute in order to determine upon whom it is conclusively presumed that the child is wholly dependent. If the true intent and purpose of the statute was to provide that whenever the child had both a living father and a stepfather a conclusive presumption of the entire dependency upon the stepfather should be substituted in lieu of the previous presumption of such dependency upon the real father, the claimants could not recover, and under such a construction the capable commissioner, Mr. Kilburn, would have been correct in holding that “when Mrs. Carter married Williamson and took the children to live with her, he became the stepfather of the children, and under the compensation act he became the ‘parent’ of the children, and also, under the act, they became his dependents. The fact that their natural father might at times have given them money would not establish dependency on him.” The last sentence would be true for the reason that in dealing with a child under eighteen years of age the act, and not the facts, establish dependency. There is some authority tending to sustain the view just stated. The principal case relied upon by counsel for plaintiff in error is Hoover v. Central Iowa Fuel Co., (Iowa) 176 N. W. 945. The syllabus in that case is in part as follows: “In enacting the workmen’s compensation act the legislature could, if it saw fit, provide for double dependency, or could deny compensation to any one for the death of an injured employé, so that the act is to be construed to determine what the legislative intent was. Under Code Supp. 1913, § 3477ml6, providing that a child under 16 years of age is conclusively presumed to be wholly dependent upon a deceased employé and that stepparents shall be regarded in the act as parents, . : a child whose natural father was killed, but who at the time was living with her stepfather, is pot entitled to share in the compensation.” It will be observed, however, that the court, in holding that under the terms of the Iowa statute the stepfather was substituted for the lather as being the one upon whom the child was conclusively presumed to be dependent, based the ruling upon a provision different from that contained in the Georgia statute. The provision in the Georgia statute is that “as used in this section . . the term 'parent5 shall include step-parents.” The Iowa statute provides that “step-parents shall be regarded in the act as parents.” The latter provision could far more reasonably be construed as words of substitution than could the former. If the clause in the Iowa statute had read “step-parents shall be regarded in this act as the parents,55 it would seem to demand such a construction. The Georgia statute, however, contains a very different provision. The Georgia provision is one of inclusion, not of exclusion. There -must be the idea of exclusion, in order to import a substitution. The provision of the Georgia statute is that while such compensation shall be payable only to dependents, a child under the age of eighteen is conclusively presumed to be wholly dependent upon a parent, the term parent to include step-parents. In statutes of other States which did not contain the stepfather clause, the courts have determined that no presumption of dependency upon a stepfather was declared. The manifest purpose of the clause would seem to have been to extend the sphere of conclusive dependency so as to include a step-parent. In order to do so, as the Iowa case itself adjudges, it was not necessary to exclude the real parent. Subsection (c) § 39 of the Georgia statute, itself establishes double dependency upon both the father and the mother. See also Decker v. Mohawk Mining Co., (Pa.) 109 Atl. 275. Our Supreme Court has held that the Georgia workmen’s compensation act is a remedial statute and should be liberally construed. Van Treeck v. Travelers Ins. Co., 157 Ga. 204 (121 S. E. 215). It would seem anything but a liberal construction to read into a phrase of inclusion the merely implied and altogether unnecessary effect of exclusion. There is no possible doubt that the act gives to the child compensation for the homicide of his father. It would seem to be an extremely harsh, rather than a liberal, construction of the statute to nullify unnecessarily by implication a plainly established right in favor of the child, and this by reason of a clause which, in deajjng with his rights and remedies, appears on its face to extend rather than to restrict, to include rather than to exclude. It may possibly be that the legislature in inserting the stepfather clause had in mind what might be the usual and ordinary acceptation of the word, and meant only to deal with the contingency where a widow, having children, remarries. It may possibly be that they did not intend'to deal with a situation created by divorcement, and where the child would be considered to have both a real father and a stepfather; and that all they sought to do was to create a conclusive presumption as relating to a stepfather of an orphaned child. Whether the husband of a woman is really the stepfather of her child whose natural father is living is a question that'need not be determined. It might, perhaps, be suggestive to note that the word “step,” when thus used, is “derived from the Anglo-Saxon steop, orphaned.” Standard Dictionary. But, as stated, we do not pass upon that question, since under a liberal construction of the statute it might well be that a double dependency was intended to be established. What we hold is that the stepfather clause can not reasonably be construed—and especially so under a liberal construction of the act—to exclude by an unnecessary implication a plainly established claim for the homicide of an actual parent, but that it merely enlarges the sphere of conclusive presumption in favor of the child by including a right which would not otherwise conclusively exist. See, generally, McClain v. Kingsport Imp. Corp., 147 Tenn. 130 (345 S. W. 837) ; Evans v. Evans, 125 Tenn. 112 (140 S. W. 745); Industrial Commission v. Drake, 103 Ohio St. 628 (134 N. E. 465); Panther Creek Mines v. Industrial Commission, 296 Ill. 565 (130 N. E. 321).

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16967.
    Norman v. Young.
    Malicious Prosecution, 38 C. J. p. 499, n. 75; p. 501, n. 12; p. 504, n. 25.
   Stephens, J.

1. Where a house in which cotton was stored was found to be open early in the morning just before day, and some of the cotton was missing, and where, leading from the house, were automobile tracks containing a peculiar impression made by the tires and which when followed by the owner of the cotton and several neighbors led to tin-home of a person where was found an automobile the tires of which had markings corresponding to the impressions in the tracks, which automobile this person admitted was his, and where, the evening before the cotton disappeared, the same person went, in an automobile, along the road which passed near the cotton-house, the facts failed to show a want of probable cause for a prosecution against him for larceny. Civil Code (1910), § 4440; Woodruff v. Doss, 20 Ga. App. 639 (93 S. E. 316).

2. In a suit against the owner of the cotton, for malicious prosecution, where the above-reeited facts were established by undisputed testimony, a verdict for the defendant was properly directed.

Decided March 12, 1926.

Action for damages; from Carroll superior court—Judge Eoop. October 6, 1925.

S. H. Dyer, Smith & Taylor, for plaintiff.

Emmett Smith, for defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


author: Luke, J.

text:
    17015.
    Campbell v. Morgan County Bank et al.

    Banks and Banking, 7 C. J. p. 589, n. 28; p. 752, n. 84,
    Decided April 14, 1926.
    Levy and claim; from Morgan superior court—Judge Fortson presiding. September 25, 1925.
    Application for certiorari was denied by the Supreme Court.
   Luke, J.

Where one deposited money in a bank upon an agreement between herself and the bank that the bank should from time to time, as opportunity was presented, lend for her such portion of the deposit as it might deem proper, to responsible persons, upon ample and solvent security, and collect the loans when due and deposit the proceeds in the bank to her credit, and safely keep the same until reloaned as before (the depositor all the while checking on the deposit when and as she chose), and where the bank’s cashier, who was checking out and lending the money as the bank’s representative for the depositor, loaned himself a large portion of the deposit upon inadequate security, and the money so loaned was not repaid, and could not be traced either into the funds of the bank, which had become insolvent, or into the hands of the superintendent of banks, who had taken over the affairs of the bank, held:

1. The bank was the agent of the depositor in lending, collecting, and redepositing the money loaned by it, and as such agent it was bound to exercise ordinary diligence. Morgan County Bank v. Poullain, 32 Ga. App. 10 (123 S. E. 29) ; 157 Ga. 423 (121 S. E. 813, 33 A. L. R. 592).

2. The money loaned to the cashier was not a debt entitled to priority under class 5 of section 19 of the banking act of 1919; as a debt due by the bank as trustee or other fiduciary, or as a claim of like character.

In this connection see discussion of trusts in Ober & Sons Co. v. Cochran, 118 Ga. 396 (45 S. E. 382, 98 Am. St. Rep. 118) ; also Williams v. Bennett, 158 Ga. 488 (123 S. E. 683), the case relied upon by plaintiff in error, and note how widely that case differs from the one sub judice.

Judgment affirmed.

Broyles, C. J., concurs. Blood/worth, J., not participating, on account of illness.

A. G. Foster, Jones, Park & Johnston, for plaintiff.

F. U. George, F. R. Lambert, K. 8. Anderson, Anderson & Wood, Anderson, Rountree & Crenshaw, for defendants.


author: Broyles, C. J.

text:
    17059.
    Freeman v. The State.
    Criminal Law, 16 C. J. p. 791, n. 28; p. 1050, n. 84.
    Decided April 14, 1926.
    Conviction of receiving stolen goods; from Fulton superior court—-Judge .Humphries. December 5, 1925.
    Application for certiorari was denied by the Supreme Court.

      II. A. Allen, Garland M. Watkins, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Broyles, C. J.

1. The indictment contained two counts, tlie first count charging the defendant with stealing an automobile, and the second charging him with receiving the stolen automobile with knowledge that it had been' stolen. After the State had introduced its evidence the defendant moved that the State be required to elect upon which of the two counts it would travel and insist upon, a conviction, the movant alleging that the indictment was duplicitous and inconsistent, as appeared from the State’s evidence. Held: The denial of the motion was not error. See, in this connection, Sutton v. State, 124 Ga. 815 (1) (53 S. E. 381); Williams v. State, 69 Ga. 12 (8); Hoskins v. State, 11 Ga. 92 (1); Lascelles v. State, 90 Ga. 347 (4) (16 S. E. 945, 35 Am. St. R. 216) ; Stewart v. State, 58 Ga. 577 (3) ; 1 Bish. Cr. Pr., § 454, par. 2.

2. The excerpt from the charge complained of, when considered with the remainder of the charge of the court, was not error.

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

Judgment affirmed.

Luke, J., concurs. Bloodioorth, J., not participating, on account of illness.


text:
    17060.
    Jordan v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
   Luke, J.

The special grounds of the motion for a new trial are but amplifications of the general grounds, and there being some evidence to authorize the defendant’s conviction, and .the conviction having the approval of the trial judge, this court will not reverse the judgment denying a new trial.

Decided April 14, 1926.

Conviction of larceny of automobile; from Fulton superior court —Judge Humphries. December 7, 1925.

H. A. Allen, for plaintiff in error.

John A. Boylcin, solicitor-general, J. W. LeCraw, contra.

Judgment affirmed.

Broyles, 0. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17063.
    DONALDSON et al. v. WALKER, Governor, for use, etc.
    The action being for damages because of the alleged breach of the official bond of a former clerk of a city court, and it not appearing from the petition that any actual injury was sustained by the plaintiff by reason of the alleged-breach, the petition did not set out a cause of action.
    Clerks of Courts, 11 C. J. p. 895, n. 50.
    Decided April 14, 1926.
    Complaint on bond; from Laurens superior court—Judge Oamp. November 21, 1925.
    Application for certiorari was denied by the Supreme Court.
    This was an action for damages for an alleged breach of the official bond of Joseph N. Donaldson, former clerk of the city court of Dublin. The following facts were shown by the petition: Donaldson became clerk on January 1, 1921, and so remained until his term expired on December 31, 1924. His compensation was a salary of $200 a month paid by the County of Laurens. During his tenure of office, as was his legal duty, he required nonresident plaintiffs, filing suits in the court, to deposit with him as clerk sufficient money to cover the costs of the suits. When Sidney F. Brown, the new clerk, went into office on January 1, 1925, there was in the possession of Donaldson the sum of $1,799.75 deposited for costs and belonging to the clerk’s office, and which Brown as clerk was entitled to possess. Donaldson, however, failed and refused to turn over the amount to Brown, after a demand therefor was made upon him by Brown. The petition alleged that by reason of such refusal a breach of Donaldson’s official bond occurred, and that Donaldson and his surety on the bond thereby became indebted to the plaintiff, for the use of Brown as clerk of said court, in the sum of $1,839. An itemized statement, showing the advanced costs deposited with Donaldson during his term of office, was attached to the petition. The defendant demurred to the petition, the demurrer was overruled, and exceptions pendente lite were taken.
    Two grounds of the demurrer were as follows:
    “6. The defendants demur generally to said petition and say that the petition fails to show what items, if any, of the advance cost due to the county of Laurens or any other person has become due or that has been demanded of the defendant, J. N. Donaldson, and that he has failed to account for when so due and demanded, and fails to show ownership in the county, or any other person, or injury sustained by said county or other person, by any of the conduct of the said J. N. Donaldson, in his official capacity, or otherwise, where these defendants, or either of them, would in any way be liable on said bond sued on.
    “7. Defendants, further demurring specially to the 7th paragraph of said petition, say that the allegations therein are too vague and indefinite, and do not show any reason why said moneys should be in the possession of Sidney F. Brown, as clerk or otherwise; and that the itemized statement attached to said petition does not show what items of said cost deposited have become due and payable to the county of Laurens, or other person, by reason of the termination of the litigation for which said cost was so deposited as advance cost; that, so far as said statement shows, all of said suits are still pending in the city court of Dublin, and no part of said items are due to the county or any officer of said court, and said paragraph fails to show that any legal demand has been made upon the said J. N. Donaldson for any of said items due said county or any officer of said court which he has failed and refused to pay.”

      Hardwick & Adams, for plaintiffs in error.

      Burch & Daley, contra.
   Broyles, C. J.

(After stating the foregoing facts.) Under the law of this State the measure of damages upon all official bonds, for the misconduct of the officer (unless otherwise specially enacted), is the amount of injury actually sustained, including the-reasonable expense of the suit to the plaintiff, besides the costs of court. Civil Code (1910), § 299. In the instant case it is impossible to tell from the petition and the itemized account attached thereto what was the amount of injury, if there was any, actually sustained by the plaintiff. In fact the petition fails to show any actual injury sustained by the plaintiff by reason of the alleged breach of the bond. The petition, therefore, did not set out a cause of action, and the court erred in overruling the demurrer.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17064.
    HOBBS v. K. & S. SALES COMPANY
    Whether the operation of a gambling scheme or device was intended when the plaintiff shipped to the defendant the “punch-board” with the articles of merchandise, for the price of which the plaintiff sued in this action, and whether there was an actual purchase of the goods by the defendant, were issues which, under the evidence, should have been submitted to the jury, to be determined by them; and the court erred in directing a verdict for the plaintiff.
    Gaming, 27 O. J. p. 1104, n. 7.
    Decided April 14, 1926.
    Complaint; from city court of Soperton—Judge Blount presiding. November 20, 1925.

      Saffold & Sharpe, Dallam B. Jackson, for plaintiff in error.

      M. B. Calhoun, contra.
   Luke, J.

The K. & S. Sales Company sued P. 0. Hobbs on an

open account for $146.13 and interest thereon. Attached to the petition was a sworn itemized statement of the account as follows:

11-19-24 5-5021 No. 24376 ........$150.00

2-20-25 Cash on account......... 3.87

$146.13

1/12 Doz. Elgin watch $ 40.00

1/6 “ Gents sets . . 15.50

1/6 “ Smoker sets 15.00

1/6 Bedmanol pipes 22.00

1/6 « Manicure sets . 30.00

1/12 “ Opera glasses . 25.00

1/12 “ Kodak . . 25.00

1/12 « Pearl necklace 15.00’

1/6 “ Bracelets.......... 10.00

1/6 “ Stick pins...........10.00

1/6 “ Belt buckles......... 20.00

1/6 “ Watch charms........ 10.00

1/3 “ Bill folds ......... 4.50

"Velvet display pad, ribbon and wire

$250.00

Less 40%..............100.00

$150.00

Defendant filed an answer denying all indebtedness, and an amendment to his answer as follows: “Defendant says that the articles shown in itemized account attached to plaintiff’s petition came attached to a punch-board and was a part and parcel of the same; that any person who played on said board for 5 cents a punch would receive nothing whatever for his money, or would receive one of the articles attached thereto and the same articles set out in plaintiff’s petition; that when all of said punches were sold and punched out, the amount received from said punches would be $250.00, and of this amount plaintiff received 60%, and that said punch-board sold under .said conditions is a gambling device, and for this reason the contract is-void, and that it was the intention of plaintiff that same was to be handled in this way, and said sale and contract is therefore null, void, and illegal.” The plaintiff introduced the interrogatories of its man in charge of the shipment of merchandise, who swore that he shipped the goods to the defendant in accordance with an order which was attached to his interrogatories. He testified: “The assortment or shipment I shipped to him was billed and sold as a job lot, at a stipulated price for the lot itself, the K. & S. Sales Company to determine what articles would comprise this particular job lot.” In his cross-interrogatories he swore: “I do not recall if a punch-board was shipped with this particular order, but [if?] it was, there was no charge made for it, and its use is optional on the part of the purchaser of the goods. The goods were sold on open account.” The alleged order attached to the interrogatories was in substance a letter asking the defendant if a sales board, “sometimes called punch-board,” could be sent to him on approval, and at the bottom-of the letter was the following: “Your discount 40%—express charges paid. Shipment strictly on approval. Unsalable merchandise returnable.” The defendant, by his signature to this letter from the plaintiff, agreed for the goods to be sent on approval.

The defendant testified: “I received a punch-board and assortment of premiums on approval. I was to keep the goods and punch-board 45 days and see how many punches I could sell or get rid of during this 45 days, and at the end of this time I was to return all goods not taken off as premiums or disposed of, and if at the end of 45 days I wanted to keep the goods I could do so, and if for any reason I did not want to accept the goods I was to return the entire business at the expiration of 45 days. I never did purchase the goods or accept them as my property, but was just taking them on approval. I had never accepted the goods, nor had I agreed to buy or pay for them. It was not even necessary for me to agree to do this until the expiration of the 45 days. The assortment of goods were never itemized to me, and the itemized list offered in evidence here to-day is the first one I have ever seen from this company. They were just sent out as an assortment for which they were to charge me $150 in case I accepted them. In case I did not accept them I was to send them 60% of all monies collected by me for punches. I was to collect 5 cents for each punch and remit 60% or 3 cents for each punch and retain 40% or 2 cents for each punch. The merchandise shipped out to me was stolen from my store and I have never recovered any of it. I was in no way responsible for the loss of the goods. I spent quite a bit of money and time trying to capture the man that stole the goods, as well as to recover the merchandise. I used every effort and did all I could, and all that could be done to get the goods back and to catch the thief. I used more than ordinary diligence and care in protecting and keeping these goods in good condition, as I was going to< return them to the K. & S. Company before the 45 days had expired. The company had already sent me an agreement to be signed by me, allowing me to keep the goods for a longer period of time strictly on approval, but I did not intend keeping them longer, nor did I intend signing this agreement. There was 129 punches punched off this board when same was stolen, for which I received the sum of $6.45 or 5 cents each, and of this amount I remitted $3.87 or 60% to the K. & S. Sales Company, retaining the balance, or 40%, for myself, as per our agreement and contract. There had never been anything taken off this board on which the merchandise was attached when same was stolen on January 2, 1925. Under the contract and agreement, fully understood by the company, I could not take anything off this assortment or deliver anything on the assortment to any person, only the person who punched the number from the punch-board that called for this premium or article of merchandise. At the time this merchandise was stolen there had never been a single number punched off this board that entitled the party punching same to any article of merchandise on the board to which the assortment was attached. I could not sell any article on this assortment to any one at any price, and this was fully understood by the company and agreed to by them, and this was the condition on which this merchandise was shipped to me. I could, under the contract under which this merchandise was shipped to me, deliver the various articles of this assortment only when a number was punched off the punch-board that entitled the party punching same to a premium, all of which was determined by a hidden number. The goods of this assortment under the contract were worth nothing to me, and I could not under the agreement sell any of this merchandise to any person at any price. They were never billed out to me at any price whatever, and I never in any way agreed to purchase them or keep them at any price. The time I had to decide if I wished to keep these goods had not expired. I wired the company the next day after this board was stolen together with every article of merchandise. The person who stole these goods came to my store and asked for some small article which I delivered to him. This did not require me to go any distance from him. He then asked for some shoe polish, and, as I had to go to the back of my store to get this, he snatched the assortment of merchandise, together with the board on which it was attached, and jumped in a car and drove off as fast as he could. I am a cripple man and could not get back to the front of the store until he was some distance up the road and too far for me to stop him. I did, however, wire to all the sheriffs and police around in the direction he was going, and the sheriff at Mount Vernon got after this man and finally forced him to abandon his car. He left this board on which all the goods were attached in the car, but had stripped off every article therefrom. I did not get back one cent of the merchandise. There was $14.00 in United States money on the board. This I notice is not charged to me on the itemized statement offered by the company. I am sure no company would give away this amount of money, nor would any company allow me 40% of each dollar to sell them for the company. I have never purchased one thing from this company, and was only holding these goods, at the time they were stolen, for the company, and until the 45 days was out I had them strictly on approval.” (Italics ours.) Defendant “identified the punch-board” on which the assortment of merchandise was attached, “together with the case in which these were received by him, all of which came in one container.” The defendant introduced a letter from the plaintiff saying that the goods were sent “strictly on approval,” and saying: “Your discount (profit) is 40%. Should you sell only part of the merchandise, you still make your 40% discount, because we repurchase all unsalable merchandise.” . Defendant introduced in evidence also the invoice showing “one assortment No. 5-5021 5000-5c assortment.”

The trial judge directed a verdict for the plaintiff, and the defendant, upon the overruling of his motion for a new trial, excepted.

If the evidence of the plaintiff is to be believed, there was an ordinary sale of merchandise on open account, and no gambling scheme was intended by the plaintiff. If the evidence of the defendant is to be believed, there was no sale of merchandise, but the defendant held the goods merely on approval, and the contract between the plaintiff and the defendant contemplated the operation of a gambling scheme or device, and said contract between the parties litigant was in pursuance and in furtherance of that object. According to defendant’s testimony, a punch-board was sent with the merchandise and the purchaser (from the defendant) paid five cents for a punch on this board which was furnished by the plaintiff, and for this five cents the purchaser either got nothing at all, or else got an article which, according to the itemized statement of the plaintiff, was worth much more than five cents. This is clearly a game of chance, and is prohibited by sections 397 and 398 of the Penal Code of Georgia.

That the plaintiff participated in this scheme, was a party there to, intended that the merchandise should be used as a part and in furtherance of the gambling scheme, and was to reap a part of the benefit from the scheme, is shown by the following facts as disclosed by the record, the credibility of which the jury should have determined: (1) Plaintiff sent with the merchandise a punch-board containing lucky numbers that called for premiums,—the merchandise. No reason is shown for sending this punch-board unless the plaintiff intended for it to be used. It was sent in 'the container with the merchandise. (2) Plaintiff’s letters refer to the sales-board assortment “sometimes called punch-boards,” which tends to show that the nature of the transaction was understood by them. (3) Plaintiff’s invoice was for “5000-5c assortment.” What would the jury believe this “5c” referred to if not to five cents a punch on the board which the plaintiff sent ? The cheapest article on the itemized statement was $4.50. (4) At the time the board was stolen the defendant had sold 129 punches off the board at 5 cents each. 60% of this amount' was sent to the plaintiff, and the plaintiff gave the defendant credit for the same. (5) Plaintiff never submitted to the defendant the prices of the various articles of merchandise, and the invoice contained no reference thereto. This being true, the defendant, not knowing the cost of the individual articles, could not know at what price to sell them; which was necessarily known to the plaintiff. (6) $14 in United States money was on the board to make it look attractive and luring to the purchaser of the punches, which money was furnished by the plaintiff and was not included in the itemized statement submitted at the time of suit. Why should the plaintiff send this money with a bill of merchandise? Surely it was not intended that it be sold as an article of merchandise and 40% of the proceeds thereof retained by the defendant. The record shows that the plaintiff furnished it, and that the plaintiff expected it to be returned after it had served its purpose, for the plaintiff wrote to the defendant, “When you return any of the coins or currency on this assortment please remove them from the display pad.” The fact that it was to be returned indicates that there was no number which could draw it, among the punches; and if this were true, having it on the board was a fraud on the public. (7) The plaintiff “determined what articles would comprise this particular job lot.” (8) The plaintiff was to get back all articles not' utilized and 60% of all monies realized from the project.

The entire record tends to show that the device in question was a gambling scheme, and that the plaintiff so understood and intended, participated therein, and reaped part of the benefit therefrom. The seemingly guarded methods of the plaintiff to make it appear that this was a legitimate sale of merchandise for a legitimate purpose “will not serve to conceal the real illegality of the scheme,” if such it was. Glennville Investment Co. v. Grace, 134 Ga. 576 (68 S. E. 301, 29 L. R. A. (N. S.) 758). See, in this connection, Meyer v. State, 112 Ga. 23 (37 S. E. 96, 51 L. R. A. 496, 81 Am. St. R. 17); Wilson v. State, 67 Ga. 658 (2), 660 (2); Henderson v. State, 95 Ga. 326 (2) (22 S. E. 537); Whitley v. McConnell, 133 Ga. 739, 740 (66 S. E. 933, 27 L. R. A. (N. S.) 287, 134 Am. St. R. 223); Stanbridge v. Williford &c. Co., 148 Ga. 283 (96 S. E. 498). Gaming contracts áre void (Civil Code, § 4256), and all contracts intentionally made in abetment of a violation of the penal statutes of our State are unenforceable. If not unenforceable for any other reason, such a contract would be unenforceable as being against public policy. There was evidence from which the jury could have concluded that the contract between the plaintiff and the defendant contemplated the violation of a penal statute in which both parties participated; and had the jury so concluded, and had they been properly instructed by the court as to the validity of such a contract, they probably would have rendered a different verdict.

Let it be borne in mind that this is not a suit upon a written contract. Paragraph 3 of the plaintiff’s petition specifically alleges that “said indebtedness is evidenced by an open account.” This being true, the parol-evidence rule in reference to’ varying the terms of a written contract could not properly be invoked; and the defendant showed by parol evidence, as well as by documentary evidence, that he had never purchased the goods, but that he accepted them only on approval, and that they were the property of the plaintiff at the time they were stolen. Even if the suit had been based upon the letter in which there was an offer by the plaintiff and an agreement by the defendant that the goods be shipped on approval, the letter is not sufficiently definite to constitute a written contract of sale, and could be explained by parol evidence. What did the 40% in that letter refer to, the five cent punches or the specific articles of merchandise? If it referred to the articles of merchandise, and some of them were sold' and some returned to plaintiff, what method would be employed to ascertain 40% of the merchandise sold, since the defendant, according to the testimony, never had any notice of the value of each article until the itemized statement was made at the time the suit was filed. Under these circumstances, which party would have determined what was 40% of the value of any merchandise that might have been sold? This alleged order simply provided that the goods be shipped on approval, and there is no conclusive evidence in the record to show that they were ever actually accepted by the defendant. The defendant had 45 days in which to accept or reject them. The 45 days had not expired at the time of the theft, and the defendant swore: “I was going to return them to the K. & S. Company before the 45 days had expired.” There was no acceptance shown by a sale of the goods by the defendant, because the undisputed evidence shows that none of the goods were sold at the time they were stolen. The sale of the punches does not show an acceptance of the goods because the plaintiff, according to its evidence, did not sell defendant the punch-board or include it in the account sued for, and disclaims all responsibility for its use. If the goods were in the possession of the defendant merely on approval, and had never been accepted by him, they were held by him in the nature Of a consignment, so far as title is concerned, and the title' to them was still in the plaintiff at the time of the theft. This being true, he would be responsible only for that degree of diligence in protecting them which the evidence tends to show he exercised. It could be properly inferred that the plaintiff intended to keep the goods in the possession of the defendant “on approval” only, so that they would be in position to recover the goods themselves should the occasion arise, for the defendant testified: “That company had already sent me an agreement to be signed by me, allowing me to keep the goods for a longer period of time strictly on approval.” This tends to show that the plaintiff considered them to be in the hands of the defendant on approval even after he was selling the.punches on the board.

The testimony of the plaintiff’s witness was that he did not recall if a punch-board was shipped, and that if it was, its use was optional on the part of the defendant. That of the defendant was that the plaintiff did ship a punch-board and intended for it to be used in operating a game of chance. The testimony of the plaintiff shows that the goods were to be sold by the defendant “in any manner in which he wanted to dispose of them.” The de-c' fendant swore: “Under the contract and agreement, fully understood by the company, I could not take anything off this assortment or deliver anything on the assortment to any person, only the person who punched the number from the punch-board that called for this premium or article of merchandise.” The plaintiff swore that the defendant bought the' goods. The defendant swore: “I never in any way agreed to purchase them or keep them at any price.” Under this conflicting evidence, what was the intention of the parties? What was the nature of the contract? In whom was the title to the goods at the time they were stolen? In this particular case these are questions of fact, and should have been submitted to a jury, and the court erred in directing a verdict.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., not pa/rticipating, on account of illness.


author: Beotles, O. J.

text:
    17066.
    Snell v. John Hancock Mutual Life Insurance Co.
    Continuances, 13 C. J. p. 142, n. 56.
    Garnishment, 28 O. J. p. 394, n. 1.
   Beotles, O. J.

1. Where a summons of garnishment is issued and the garnishee answers, admitting possession of effects, and the garnishment is dissolved by a claimant by giving the required bond, the claimant has the right, at any time before judgment is entered in favor of the plaintiff upon the bond, to traverse under oath the answer of the garnishee and cause an issue to be made thereon. Gordon v. Wilson, 99 Ga. 354 (1) (27 S. E. 762).

2. Under the above-stated ruling the court in the instant case erred in refusing to grant a continuance of the case (the motion being based upon the absence of the claimant because of illness, and the showing being in all respects regular and complete and uncontradicted, and it appearing that the case had never'been continued before), the refusal being based on the ground that, the garnishees having filed their answer admitting indebtedness to the defendant, and the claimant having dissolved the garnishment by giving bond and having failed to traverse the answer (the answer being filed long before the garnishment was dissolved), no issue was made which could have been submitted for trial. The error in refusing to continue the case rendered the further proceedings nugatory.

Decided April 14, 1926.

Garnishment and claim; from city court of Wrightsville—Judge Blount. November 13, 1935.

H. T. Hicks, E. L. Stephens, for plaintiff in error.

Charles S. Claxton, contra.

Judgment reversed.

Lulce, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17069.
    Lee v. The State.
    Criminal Law, 16 C. J. p. 1114, n. 45; 17 C. J. p. 362, n. 96.
    Decided April 14, 1926.
    Indictment for distilling, etc.; from Douglas superior court-judge Irwin. December 11, 1935.
    Application for certiorari was made to the Supreme Court.

      J. B. Hutcheson, Aslor Merritt, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Broyles, C. J.

The plaintiff in error was charged with manufacturing whisky, and the jury returned the following verdict: “We, the jury, find the defendant guilty [and] ask [the] mercy of the court.” Thereupon the accused was given a misdemeanor sentence. At the same term of the court he presented a motion to arrest the judgment, based upon the allegation that the verdict was not a legal one, under the indeterminate-sentence statute, in that no minimum and maximum penalty was fixed by the verdict. The motion was overruled and the defendant excepted. Held: The verdict was not in proper form, and the judge should have sent the jury back to their room with instructions to fix a minimum and maximum penalty. Mitchell v. State, 34 Ga. App. 505 (130 S. E. 355). However, as the judge followed the recommendation of the jury and imposed a misdemeanor sentence, the defendant has no cause to complain, and the refusal to arrest the judgment was not error.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17070.
    Wallace v. The State.
    Criminal Law, 16 C. J. p. 1114, n. 45; 17 C. J. p. 362, n. 96.
    Decided April 14, 1926.
    Rehearing denied May 12, 1926.
    Indictment for manufacture of liquor; from Douglas superior court—Judge Irwin. December 18, 1925.
    Application for certiorari was made to the Supreme Court.

      Aslor Merrill, for plaintiff in error.

      E. 8. Griffith, solicitor-general, contra.
   Broyles, C. J.

This case is controlled by the decision this day rendered in Lee v. State, ante, 235.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17071.
    FELKER v. STILL, administrator.
    1. Where a portion of an affidavit of illegality has been dismissed on demurrer for insufficiency, and the remainder is admitted to be incorrect, the jury may be authorized to infer from this that it was filed for delay only, and a verdict assessing damages in favor of the plaintiff in execution, at less than 25% of the principal debt, will not be disturbed, where there is any evidence to support it, unless for some material error of law.
    2. The court did not err in sustaining the demurrer to the affidavit of illegality and disallowing the amendment thereto, or in overruling the motion for a new trial.
    Appeal and Error, 4 C. J. p. 869, n. 96.
    Costs, 15 C. J. p. 281, n. 9.
    Executions, 23 C. J. p. 548, n. 75; p. 553, n. 77. Trial, 38 Cyc. p. 1302, n. 63.
    Decided April 14, 1926.
    Rehearing denied May 11, 1926.
    Affidavit of illegality of execution; from Walton superior .court —Judge Fortson. November 16, 1925.
    Application for certiorari was made to the Supreme Court.

      J'. II. Felker, for plaintiff in error.

      Orrin Roberts, R. L. & H. C. Cox, contra.
   Luke, J.

John M. Carter, executor of the will of William L. Boss, brought suit against J. H. Felker on a note given by Felker for the purchase-price of certain land. During the pendency of the suit Carter died, and J. T. Still was made administrator de bonis non with the will annexed, and the suit on the note so proceeded. Defendant filed a plea and an amendment thereto, part of which was stricken on motion of counsel for the plaintiff. The trial resulted in a verdict against the defendant. Defendant made a motion for a new trial, and, upon the overruling of the motion, carried his ease to the Supreme Court, where it was dismissed on May 15, 1934, and a rehearing denied him June 30, 1934. See Felker v. Still, 158 Ga. 343 (133 S. E. 303). Still, administrator, then had an execution to issue on the judgment rendered in the lower court, executed a quitclaim deed to Eelker conveying to him the land for which the note sued on was given, had the deed recorded in the clerk’s office, and then placed the fi. fa. in the hands of the sheriff for levy. The sheriff levied on the land for which the purchase-money note was given, and also on a lot in the City of Monroe and a Packard automobile. Eelker then obtained a. temporary restraining order to prevent advertisement and sale of the property. The court refused a permanent injunction, and Eelker again brought the ease to the Supreme Court, and it was again dismissed by that court on March 11, 1935, and a rehearing was denied on April 30, 1935. See Felker v. Still, 160 Ga. 104 (137 S. E. 609). Still, administrator, then had the property levied on under the fi. fa., and Eelker filed an affidavit of illegality and an amendment thereto. The plaintiff in fi. fa. demurred to the affidavit of illegality, and the court sustained the demurrer and struck all the grounds of the affidavit of illegality except one ground, in which it was alleged that no deed was executed, filed, and recorded prior to the levy, conveying to the defendant in fi. fa. the land for which the note sued on was given, as provided by section 6037 of the Civil Code. The court, on motion, also disallowed the amendment. The case went to the jury upon the question of whether or not the deed in question was executed, filed) and recorded prior to the levy. On the trial the defendant in fi. fa. swore: “Yes, I swear in the affidavit that there was no deed filed and recorded from Still to me for this levy. . . I searched the deed record and found none. . . The record produced here shows a deed from Still recorded July 7, 1934. It seems there was a deed from Still on the record; I never saw that before. .• . I am mistaken about the Still deed.” Since the other grounds of the affidavit of illegality had already been stricken on demurrer, this admission by defendant eliminated the only remaining ground, and the court instructed the jury to find the property subject to the levy, and also instructed them that the only question left for their determination was whether or not the affidavit of illegality was interposed for delay only, and, if so, what damages, in their judgment, should be assessed against the defendant in fi. fa., such damages in no event to exceed 25% of the principal debt. The jury assessed damages against the defendant in the sum of $948.31, the verdict in the original suit having been for $6,322.05 principal, together with interest. 'Felker made a motion for a new trial, which was overruled, and he excepted, bringing' the case to this court, assigning error upon the sustaining of the demurrer to the affidavit of illegality, upon the disallowance of the amendment thereto, and upon the overruling of his motion for a new trial.

Felker’s original and amended affidavit of illegality is of considerable length and will not be here stated in full, but it alleged, in the main, that under the will of William L. Boss the executor had no authority to 'sell the land which movant bought, and the purchase price of which was the basis of the original suit against him; that some of the legatees were minors; that movant could not get a good title to said land; that Still was not the legal representative of the deceased executor of the will; that the will had never been probated in solemn form; that unless the cloud on the title was removed the sale would amount to a confiscation of the property; that the consideration for which the note sued on ivas given has failed; that movant was deceived and misled to believe that the will did contain power to sell the land in question, and that no deed was executed and recorded prior to the levy as provided by law. Movant admitted by his evidence that there was no merit in the last of these allegations; and the other allegations were properly stricken on demurrer, or disallowed, because they were but an attempt to go back of the judgment, and were not proper allegations in an affidavit of illegality. If they were proper matters of defense to the original action, they should have been set up as a defense to the original suit; and if they were set up as a defense to the original suit and were improperly stricken (which is not now before us for adjudication), the defendant to the suit had his remedy, of which he should have availed himself. As a matter of fact, the record shows that these allegations of the affidavit of illegality are substantially a repetition of the allegations set out in the amendment to the answer to the original suit on the note.

The jury were authorized, under the facts, to award damages for the delay occasioned by the filing of the affidavit. Where a portion of an affidavit of illegality has been dismissed on demurrer for insufficiency, and the remainder is admitted to be incorrect, as in the instant case, the jury may be authorized to infer from this that it was filed for delay only, and a verdict assessing damages in favor of the plaintiff in execution, at less than 25 per cent, of the principal debt, will not be disturbed, where there is any evidence to support it, unless for some material error of law. Civil Code, § 5308; Jordan v. F. & M. Bank, 5. Ga. App. 244 (5) (62 S. E. 1024); White v. Haslett, 49 Ga. 280 (2, 3), 283.

The motion for a new trial complains of the following charge: “The question whether or not the defendant filed this illegality for the purpose of delay is for you to determine.” The error assigned is the omission of the word “only” after the word “delay.” Reference to the charge on this subject shows that on five different occasions the court used the expression “delay only.” The jury were not misled by the single omission of which complaint is made.

Error is assigned also because the court refused to charge that “The burden of proof is on the plaintiff to show that the illegality was filed for delay only,” and it is insisted that “the burden of proof is on the plaintiff in fi. fa.,” yet in his brief the movant says : “Defendant Felker assumed the burden of proof on the illegality.” If a plaintiff in fi. fa. makes out a prima facie case, or if the defendant in fi: fa. admits a prima facie case and assumes the burden, then the defendant must carry the burden to the extent of sustaining by proof all the essential allegations in his affidavit of illegality, but this would not deprive the plaintiff in fi. fa. of the right to open and conclude the argument. James v. Edward Thompson Co., 17 Ga. App. 578 (2) (87 S. E. 842); Bertody v. Ison, 69 Ga. 317; Alexander v. City of Atlanta, 21 Ga. App. 737 (95 S. E. 267).

Reference to the record shows that the plaintiff in error suffered no injury from the charge of the court or from the rejection of testimony. Oh the contrary, the court was rather liberal in the admission of testimony of the defendant in fi. fa., he having been permitted to testify' about allegations in the affidavit of illegality which had been stricken, not for the purpose of supporting the stricken allegations, but for the purpose 'of permitting him to show, if he could, that he filed his affidavit in good faith and not for delay only; the last named being the only issue finally involved in the trial of the illegality. It suffices to say that the motion for a new trial was without merit, and the trial judge properly overruled it.

The record shows that this litigation has been pending for more than five years, the original suit being returnable to the February term, 1921, of the superior court; and, including two motions for rehearing, it has been presented five times to the appellate courts. It is obvious that there were no legal grounds for a reversal of the judgment of the lower court on the record now before us; and it is ordered (as requested by the defendant in error) that ten per cent, damages for delay be awarded the defendant in error, and that this be entered in the remittitur, as provided by section 6213 of the Civil Code.

Judgment affirmed, with damages.

Broyles, C. J., concurs. Bloodworth, J., not participating, on account of illness.


author: Bloodworth, J.

text:
    17072.
    Musselwhite v. American Agricultural Chemical Co.
    Appeal and Error, 4 O. J. p. 1022, n. 21.
    Decided April 14, 1926.
    Complaint; from Wilcox superior court—Judge Crum. November 24, 1925.

      Max E. Land, for plaintiff in error. Hal Lawson, contra.
   Bloodworth, J.

Under the pleadings and the evidence, the judge committed no error harmful to the defendant in directing the verdict.

Judgment affirmed.

Broyles, G. J., and Luhe, J., eoneur.


author: Lube, J.

text:
    17073.
    Clark v. The State.
    Criminal Law, 16 C. J. p. 612-, n. 86; p. 1050, n. 84.
    Homicide, 30 C. J. p. 317, n. 69.
    Decided April 14, 1926.
    Conviction of involuntary manslaughter; from Chatham superior court—Judge Meldrim. November 7, 1925.

      Oliver & Oliver, for plaintiff in error.

      Walter C. Eartridge, solicitor-general, contra.
   Lube, J.

1. The jury were, upon conflicting evidence, authorized to convict the defendant upon the second count, which charged him with involuntary manslaughter, for that he killed one Nora Nesmith without any intention to do so, but in the commission of an unlawful act, to wit, the driving of a motor-vehicle on a public highway while under the influence of intoxicating liquor. There was ample evidence that the killing was the result of his driving a truck on the public highway while intoxicated.

2. When the charge of the court is considered in its entirety, no reversible error appears therein.

3. The court did not err in permitting a witness to testify that a certain road was a “public highway.” See Long v. State, 32 Ga. App. 451 (2), 452 (124 S. E. 110).

4. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyl.es, O. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17074.
    Wright v. Turner.
    Animals, 3 C. J. p. 92, n. 61; p. 94, n. 75; p. 110, n. 75.
    Torts, 38 Cyc. p. 499, n. 84.
   Broyles, C. J.

1. Any abuse of, or damage done to, the personal property of another unlawfully is a trespass for which damages may be recovered. Civil Code (1910), § 4485.

2. “If domestic animals, such as oxen and horses, injure any one in person or property when they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury unless he knows they are accustomed to do mischief; and such knowledge must be alleged and proved. But if they are wrongfully in the place where they do the mischief, the oioner is liable, though he had no notice that they xoere accustomed to do so before” (Italics ours.) 1 Am. & Eng. Ene. L. 578, art. “Animals,” and authorities cited; Cooley on Torts, 341, 342 (2d ed. 402); Reed v. Southern Express Co., 95 Ga. 108 (22 S. E. 214).

Decided April 14, 1926.

Action-for damages; from city court of Floyd county—Judge Bale. December 14, 1925.

Porter & Melane, for plaintiff.

Harper Hamilton, for defendant.

3. Under tlie above-stated rulings tlie amended petition set fortli a cause of action, and it was error to dismiss it on general demurrer.

Judgment reversed.

Luke, J., concurs. Bloodworih, J., not participating, on account of illness.


text:
    17077.
    Selman, administrator, v. Arp.
    Executors and Administrators, 24 C. J. p. 867, n. 11.
    Decided April 14, 1926.
    Complaint; from' Chattooga superior court—Judge Maddox. December 15, 1925.

      Benny & Wright, Q. B. Rivers, for plaintiff in error.

      F. W. Copeland, contra.
   Luke, J.

The verdict for the plaintiff, who sued for services rendered in nursing, waiting upon, and attending the defendant’s intestate, was authorized; and the special grounds of the motion for a new trial, which complain of the admission of testimony over the objection of plaintiff in error, are without merit. Eor no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworih, J., not participating, on account of illness.


text:
    17081.
    Burkhalter v. The State.
    Intoxicating Liquors, 33 O. J. p. 761, n. 53,
    Decided April 14, 1926.
   Broyles, C. J.

The charge of the court complained of was not error, and the verdict was authorized by the evidence. The particular facts of the ease distinguish it from Toney v. State, 30 Ga. App. 61 (116 S. E. 550), and the other cases cited in the brief of counsel for the plaintiff in error, there being no positive evidence in the instant case that any person, except the defendant, his wife and children, lived in the house where the whisky was found. The jury had a right to disbelieve the defendant’s statement that “another party lived there.”

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.

Conviction of ■ possession of liquor; from city court of Reidsville—Judge Cowart. November 16, 1925.

EL. LL. Elders, for plaintiff in error.

M. IF. Eason, solicitor, contra.


text:
    17082.
    Burkhalter v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of possessing apparatus for making whisky; from city court of Reidsville—Judge Cowart. November 16, 1925.

      LL. LL. Elders, for plaintiff in error.

      M. W. Eason, solicitor, contra.
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


author: Broyles, C. j.

text:
    17084.
    Flippin v. Central of Georgia Railway Co.
    Master and Servant, 39 C. J. p. 343, n. 24; p. 989, n. 29; p. 1001, n. 47, 59.
    Trial, 38 Cyc. p. 1556, n. 9.
   Broyles, C. j.

1. Where a servant sues his master for damages for personal ■injuries, the burden is on the plaintiff to show not only negligence on the part of the master, but due care on his own part; and it must appear that the plaintiff did not know, and had not equal means of knowing, all that which is charged as negligence, and that by the exercise of ordinary care he could not have known thereof. Civil Code (1910), § 3131; Ludd v. Wilkins, 118 Ga. 525, 526 (45 S. E. 429), and citations.

2. “The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant’s labor, and where the work in its progress necessarily changes the character for safety of the place in which it is performed, as it progresses.” Holland v. Durham Co., 131 Ga. 715 (1) (63 S. E. 290); L. & N. R. R. Co. v. Dunn, 21 Ga. App. 379 (1) (94 S. E. 661), and citations.

3. Where a petition sets out a cause of action, and the plaintiff proves every fact charged, but where, on cross-examination or otherwise, his right to recover is disproved by the establishment of the existence of other undisputed defensive facts, which show that he is not entitled to a verdict, then a nonsuit should be awarded. Evans v. Mills, 119 Ga. 448 (2) (46 S. E. 674); Evans v. Scofield’s Sons Co., 120 Ga. 961 (48 S. E. 358) ; Woods v. Mercantile Bank & Trust Co., 32 Ga.. App. 106 (122 S. E. 819).

Decided April 14, 1926.

Action for damages; from city court of Floyd county—Judge Bale. December 14, 1925.

Porter & Mebane, for plaintiff.

Maddox, Matthews & Owens, for defendant.

4. The eases cited and relied on by counsel for the plaintiff in error are distinguished by their particular facts from the instant ease and from the cases cited above.

5. Under the above-stated rulings and the facts of this case, the court did not err in awarding a nonsuit.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17085.
    Buttrom v. The State.
    Criminal Law, 17 C. J. p. 87, n. 44; p. 271, n. 41.
    Decided April 14, 1926.
    Indictment for making and possessing liquor; from Douglas superior court—Judge Irwin. December 11, 1925.

      Smith & Millican, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Luke, J.

The evidence authorized the conviction of the defendant, and the conviction has the approval of the trial judge. The special grounds of the motion for a new trial are not complete, and present no assignment of error which can be considered by the court. The motion for a new trial, under the record here, was properly overruled.

Judgment affirmed.

Broyles, O. J., concurs. Blood/worth, J., not participating, on account of illness.


text:
    17086.
    Powell v. The State.
    Criminal Law, 17 C. J. p. 87, n. 44; p. 271, n. 41.
    Decided April 14, 1926.
    Rehearing denied May 12, 1926.
    Conviction of driving automobile while drunk; from city court of Wrightsville—Judge Blount. December 5, 1935.

      J. L. Kent, for plaintiff in error.

      J. Roy Rowland, solicitor, contra.
   Bloodworth, J.

1. The only special ground of the motion for a new trial is too indefinite to be considered. “Grounds of a motion for new trial should be complete within themselves.” Daniel v. Schwarzweiss, 144 Ga. 81 (1) (86 S. E. 239).

2. There was some evidence to support the verdict, the trial judge approved it, and, no error of law having been committed on the trial, this court is powerless to interfere.

Judgment affirmed.

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


text:
    17087.
    COPELAND v. SOUTHERN RAILWAY COMPANY.
    Railroads, 33 Cyc. p. 68, n. 12.
    Trial, 38 Cyc. p. 1579, n. 46.
    The action being against a railway company on an open account for medical services and medicine furnished to an employee of the company, and being based on the theory that the company was obligated to pay for the same because of the words and conduct of its claim agent, and there being no evidence that the claim agent had authority to bind the company to pay for the same, the court did not err in directing a verdict for the defendant.
    There is no merit in the contention that the judge “erred in directing, a verdict for the defendant upon motion of defendant’s counsel without announcing his intention so to do, thus not giving plaintiff an opportunity to take a grant of a nonsuit or to dismiss his case.”
    No material error appears in other rulings.
    Decided April 14, 1926.
    Complaint; from Butts superior court—Judge Persons. December 5, 1935.

      Joel B. Mallet, for plaintiff.

      Harris, Harris & Popper, O. L. Redman, for defendant.
   Luke, J.

H. W. Copeland sued the Southern Eailway Company on open account for professional services rendered and medicines furnished Thomas McMiehael, an employee of that company. Both sides introduced evidence, there was no argument, and the court directed a verdict for the defendant. The theory of the plaintiff’s case was that the defendant was obligated to pay the doctor’s bill by the words and conduct of its claim agent. Neither the evidence for the plaintiff, nor the evidence for the defendant, nor both together, showed that the claim agent had authority to bind the defendant to pay the bill in question; and it was inevitable that plaintiff could not recover.

In ground 2 of the amendment to the motion for a new trial the plaintiff complained that “the court erred in directing a verdict for defendant, upon motion of defendant’s counsel, without announcing his intention so to do, thus not giving plaintiff an opportunity to take a grant of a nonsuit or dismiss his case,” and that “if plaintiff had failed to make out his case as laid, or if there had been a variance between the pleadings and the proof, the case should have terminated by a nonsuit.” This ground is hypothetical, and the real gist of it,—that the plaintiff was not given an opportunity to apply for a nonsuit or a dismissal,—is a non sequitur from the facts stated in that ground. Indeed, in ground 1 the defendant states that “the verdict was directed over the objection of plaintiff and against his demand,” and that “movant then and there objected to the direction of said verdict, and urged that a verdict for the defendant was not demanded under the pleadings and the evidence.” Furthermore, it would appear from the decision in Grand Rapids Furniture Co. v. Morel, 110 Ga. 321 (2) (35 S. E. 312), that the direction of a verdict was not improper in this case. The Morel case is cited as authority to sustain the decision in Watson v. Barnes, 125 Ga. 733 (54 S. E. 723, 8 L. R. A. (N. S.) 467, 115 Am. St. E. 120), where it is stated that plaintiff “probably” would have been entitled to a nonsuit or a dismissal if she had made a motion to that effect. Clearly there is no merit in ground 2.

Grounds 3, 4, and 5 of the amendment to the motion for a new trial, complaining of the court’s rulings upon’ the admission or rejection of evidence, are not meritorious. The judgment directing a verdict for the defendant is not erroneous for any reason assigned.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17089.
    Levy v. Duckworth.
    Appeal and Error, 4 O. J. p. 832, n. 47.
    Decided April 14, 1926.
    Petition for certiorari; from Fulton superior court—Judge Humphries. December 16, 1925.

      George B. Bush, for plaintiff.

      Joseph D. Lewis, G. Lon Miller, for defendant.
   Bloodworth, J.

This ease was tried by one of the judges of the municipal court of Atlanta, and he directed a verdict for the plaintiff. The defendant applied to him for a new trial, which was refused. Thereupon an appeal was taken to the appellate division of that court, and it granted a new trial. The judge of the superior court refused to sanction a writ of certiorari from this judgment, properly holding that the evidence raised an issue of fact for the jury. The case is controlled by the general rule that the first grant of a new trial will not be disturbed, unless the evidence demanded the verdict rendered.

Judgment affirmed.

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


text:
    17090.
    Swords v. West.
    Trial, 38 Cyc. p. 1568, h. 98.
    Decided April 14, 1926.
    Complaint; from Morgan superior court—Judge Park. December 4, 1925.

      E. H. George, for plaintiff in error.

      E. B. La-mbert, contra.
   Broyles, C. J.

1. The evidence, together with the legal deductions and inferences arising therefrom, did not demand the verdict directed. There were disputed issues of fact which should have been submitted to the jury.

2. There is no merit in any of the grounds of the motion for a new trial not dealt with above.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17091.
    Brown v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of possession of liquor; from Monroe superior court —Judge Persons. December 21, 1925.

      A. M. Zellner, for plaintiff in error.

      Franlc B. Willingham, solicitor-general, contra.
   Broyles, C. J.

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

Judgment affirmed.

Tjuke, J., concurs. Bloodioorth, J., not participating, on account of illness.


text:
    17092.
    Woods v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of possession of liquor; from Monroe superior court •—Judge Persons. December 21, 1925.

      A. M. Zellner, for plaintiff in error.

      Franlc B. Willingham, solicitor-general, contra.
   Luke, J.

The evidence authorized the defendant’s conviction of violating the prohibition statute, and his criticism of the charge of the court is wholly without merit. The motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17094.
    Potter, by next friend, v. The State.
    Criminal Law, 16 C. J. p. 1367, n. 98; 17 C. J. p. 371, n. 51.
   Broyles, C. J.

1. A sentence in a misdemeanor ease which provides that the person convicted shall be confined at hard labor for the space of one year at the State farm is not in conformity with section 1065 of the Penal Code of 1910, as that section provides that the convict shall “work” or “labor,” and this does not necessarily mean “hard labor.” Screen v. State, 107 Ga. 715 (33 S. E. 393).

(a) The irregularity of the sentence, however, does not entitle the plaintiff in error to be discharged from custody, but he is entitled to' have the sentence so changed as to make it conform to the law in all particulars; and the judgment is affirmed, with direction that the sentence be so amended as to conform to the provisions of the section of the Penal Code under which it was imposed. Screen v. State, supra.

Decided April 14, 1926.

Conviction of riot; from Screven superior court—Judge Strange. December 17, 1935.

Albert L. Potter, next friend, for plaintiff in error.

John 0. Hollingsworth, solicitor-general, contra.

Judgment affirmed, with direction.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17100.
    Service Company v. Black & Company.
    New Trial, 29 Cyc. p. 832, n. 60.
    Decided April 14, 1926.
    Complaint; from Fulton superior court—Judge Bell. December 13, 1935.

      A. T. Walden, for plaintiff in error.

      Alexander & McLarty, contra.
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., coneurs. Bloodworth, J., not participating, on aeeount of illness.


text:
    17101.
    Lucas v. Scott-Strother Lumber Company.
    Appeal and Error, 4 C. J. p. 866, n. 51.
    Decided April 14, 1926.
    Complaint; from Wilkes superior court—Judge Perryman. December 14, 1935.

      F. W. Gilbert, W. A. Slaton, for plaintiff.
   Luke, J.

This ease is presented upon the sole ground that the evidence does not authorize the verdict. The evidence was most conflicting, but this court can not say that there was no evidence to authorize the verdict. The trial judge having approved the verdict, the judgment must be affirmed.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworth, J., not parties pating, on account .of illness.


text:
    17103.
    LATTIMORE v. LUMBERMENS MUTUAL CASUALTY CO. et al.

    The industrial commission, under the facts of this ease, had no authority to reopen the ease and diminish the compensation given to the claimant in its original award, and the order of the commission, directing a hearing' on the question of dependency, was void.
    Workmen’s Compensation Acts, C. J. p. 132, n. 76.
    Decided April 14, 1926.
    Rehearing denied May 10, 1926.
    Appeal; from Ware superior court—Judge Reed. . September 19, 1925.
    Application for certiorari was made to the Supreme Court.

      E. W. Edwards, Taylor & Spurlin, for plaintiff.

      Wilson, Bennett & Pedrick, for defendant.
   Broyles, C. J.

1. The workman’s compensation act (Ga. L. 1920, p. 167), section 45, provides that “upon its own motion before judicial determination, or upon the application of any party .in interest on the ground of a change in condition (italics ours), the industrial commission may at any time review any award or any settlement made between the parties and filed with the commission, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this act, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any monies paid.” This section of the act provides for cases in which, after an award has been made, conditions have changed for some reason that makes a readjustment of the award necessary. Gravitt v. Georgia Casualty Co., 158 Ga. 613, 614 (1) (123 S. E. 897).

2. Where the employer and the claimant reach an agreement in regard to compensation, and a memorandum of the agreement is filed with, and approved by, the industrial commission, and thereupon the commission makes an award to the claimant, and notice of the award is given to the interested parties, the award is final and can not be set aside, diminished, or increased, unless the parties disagree as to the continuance of any weekly payment under the agreement. Ga. L. 1920, p. 167, sections '55, 56.

3. In the instant case an agreement was entered into between the claimant and the employer as to the payment of compensation and death benefits. The agreement set forth the facts as to the employment of the deceased, his earnings, his contributions to the claimant, the cause of his death, and the dependency of the claimant. The agreement, however, did not specifically show whether the claimant was wholly, or only partially, dependent. A memorandum of the agreement was duly filed with the commission and approved by it, and the commission thereupon made its award, finding for the claimant a weekly compensation of $4.86 for a period of three hundred weeks, and notice of the award was mailed to the interested parties. No application for a review of the award was made by any of the parties, except that the commission received a letter from the insurance carrier of the employer in which it was alleged that the award of the commission was based upon the total dependency of the claimant, whereas it should have been based upon partial dependency. The letter ended with suggesting that the commission review the agreement and the award. Thereafter the commission gave notice of a hearing to determine the question of dependency, and the hearing was had before one of the commissioners, who, upon the evidence adduced, found that the claimant was entitled to an award for partial dependency only, and she was awarded $1.05 a week for three hundred weeks. The claimant appealed, and the award was concurred in by the full commission. The claimant then carried the case to the superior court, and made a motion that the court refuse to sustain the award of the industrial commission, for the reason that the original award was a final award, and from it there had been no appeal as provided by law, and that the commission had no authority to make any other award in the case. Under the rulings stated above, the industrial commission had no authority to reopen the case and to diminish the compensation given to the claimant in its original award, and the order of the commission, directing a hearing on the question of dependency, was void, and the court should have so declared it when the matter was brought to its attention by the claimant. This error rendered the further proceedings in the case nugatory.

Judgment reversed.

Lulce, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17107.
    City of Macon v. Newberry.
    Municipal Corporations, 28 Cyc. p. 1471, n. 84.
    Pleading, 31 Cyc. p. 78, n. 95; p. 362, n. 39.
    Decided April 14, 1926.
    Action for damages; from city court of Macon—Judge Hall. January 8, 1926.

      Ha/rry 8. Strozier, for plaintiff in error. J. B. Hughes, contra.
   Broyles, C. J.

1. In a suit against a municipal corporation for damages for the homicide of the plaintiff's husband, where the original petition, properly construed (most strongly against the plaintiff), shows that the deceased, while in the full possession of all his faculties and in the daytime, was driving a horse hitched to a wagon upon a street of the city, and drove into a hole sixteen inches deep, three feet wide and ten feet long, causing him to be thrown from the wagon and fatally injured, the petition sets out no cause of action, as it is apparent that he saw or should have seen such an obvious danger, and that he failed to exercise ordinary care for his own protection. Holliday v. Mayor &c. of Athens, 10 Ga. App. 709 (4), 712, 713 (74 S. E. 67) ; Southern Railway Co. v. Rowe, 2 Ga. App. 557 (3) (59 S. E. 462) ; McCart v. Jasper County, 18 Ga. App. 769 (90 S. E. 725) ; City of Columbus v. Griggs, 113 Ga. 597 (1) (38 S. E. 953, 84 Am. St. Rep. 257).

2. “The section of the code of this State which declares that pleadings may be amended, whether in matter of form or "of substance, provided there is enough in the pleadings to amend by, properly construed, means, that in order to admit of an amendment, a valid cause of action must be set forth in the original declaration.” Selma, Rome & Dalton R. Co. v. Lacey, 49 Ga. 107 (2).

3. Under the above-stated rulings and the pleadings in the instant case, the original petition failed to set forth a valid cause of action, and the court erred in allowing the amendment thereto. The amendment should have been disallowed and the petition dismissed on the general demurrer.

Judgment reversed.

Luke, J., eoneu/rs. Bloodworth, J., not participating, on account of illness.


text:
    17110.
    Winkles v. The State.
    Criminal Daw, 17 C. J. p. 364, n. 36.
    Decided April 14, 1926.
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.

Conviction of possessing liquor apparatus; from Douglas' superior court—Judge Irwin. December 31, 1935.

Astor Merritt, for plaintiff in error.

E. 8. Griffith, solicitor-general, contra.


text:
    17115.
    NAYLOR v. MAYOR &c. OF THE TOWN OF TYBEE.
    The petitioner for certiorari failed to show compliance with the law as to the giving of a bond, the amendment to the petition was properly disallowed, and the court did not err in dismissing the certiorari.
    Municipal Corporations, 28 Cyc. p. 826, n. 33.
    Decided April 14, 1926.
    Certiorari; from Chatham superior court—Judge Meldrim. December 14, 1935.
    The petition for certiorari alleged that the petitioner, “having given bond with a good and sufficient security as required by law in such cases, brings this his petition for a writ of certiorari,” etc. At the return term the petitioner offered an amendment descriptive of the bond, quoting its condition, and showing that it had been approved, etc. The bill of exceptions states that the court “passed an order refusing and disallowing plaintiff’s amendment, and another order sustaining defendant’s motion to dismiss, dismissing plaintiff’s petition for certiorari, upon the ground that a petition for certiorari was not amendable at the first term even as to form.”

      Lewis A. Mills Jr., for plaintiff in error.

      Eartridge, Wright & Brennan, contra.
   Luke, J.

Naylor had a certiorari sanctioned, to review his conviction of violating an ordinance of the Town of Tybee. A motion was made to dismiss the certiorari, upon the ground that the petitioner had not complied with the requirement of law as to the giving of bond. An amendment was offered at the time of the hearing. The amendment was disallowed and properly so. See Hackett v. Tate, 18 Ga. App. 453 (89 S. E. 535), and cases cited. Upon the authority of Hubert v. City of Thomasville, 18 Ga. App. 756 (90 S. E. 730), and Gillespie v. City of Macon, 19 Ga. App. 1 (90 S. E. 970), the court properly dismissed the petition for certiorari.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., not participating, on account of illness.


author: Broxles, C. J.

text:
    17122.
    WALKER, executor, et al. v. CAMPBELL.
    1. The motion to dismiss the bill of exceptions is denied.
    2. The amendment to the original claim was properly allowed.
    3. The court was authorized to hold that Mrs. Campbell was a general depositor under the banking act.
    Appeal and Error, 4 O. J. p. 324, n. 34.
    Banks and Banking, 7 0. J. p. 743, n. 81 New.
    Decided April 14, 1926.
    Claim; from Morgan superior court—Judge Eortson presiding. December 12, 1925.
    Application for certiorari was denied by the Supreme Court.

      E. R. Lambert, E. H. George, for plaintiffs in error.

      A. G. Foster, Jones, Parle & Johnston, contra.
   Broxles, C. J.

The defendant in error filed with T. R. Bennett, superintendent of banks for the State of Georgia, her claim against the Morgan County Bank, which was based upon a common-law judgment against .the bank, obtained by her in the superior court of Morgan county while the bank was in the hands of Bennett as superintendent of banks. She claimed that her debt was entitled to priority out of the assets of the bank, as a debt due by the bank as a trustee or other fiduciary, and as a' claim of like character. Subsequently P. G. Walker and B. J. Anderson, as executors of the estate of J. J. Clack, deceased (the estate being a depositor and a stockholder of the bank), filed objections, with the superintendent of banks to the allowance of the claim. The superintendent of banks neither allowed nor rejected the claim, but, as he had authority to do, referred the claim, with the objections thereto, to the superior court of Morgan county. While the case Avas pending in the superior court various other stockholders in the bank intervened and filed their objections to the allowance of the claim. The case was, by consent of all parties, heard by the judge Avithout the intervention of a jury, and a judgment Avas rendered that Mrs. Campbell should be classed as a general deposiior under the banking act. A motion for a new trial, made by the objectors, Avas overruled, and the movants excepted. Before the judgment Avas rendered, Mrs. Campbell filed an amendment to her claim, in which she alleged that her debt was entitled to priority of payment out of the assets of the bank not only because it was a debt due by the bank as trustee or other fiduciary and was a claim of like character, but also because she was a depositor in the bank. This amendment was demurred to by the objectors. The demurrer was overruled and the amendment allowed, and the objectors excepted.

The amendment to Mrs. Campbell’s original claim was properly allowed.

Under all the facts of the case the court was authorized to hold that Mrs. Campbell was a general depositor in the bank. None of the grounds of the amendment to the motion for a new trial show reversible error.

Judgment affirmed.

Luke, J., concurs-. Bloodworth, J., not pa/rticipating, on account of illness.


author: Brovles, C. J.

text:
    17123.
    Overstreet v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of possession of liquor; from Berrien superior court —Judge Knight. December 22, 1925.

      Jeff S. Story, for plaintiff in error.

      H. G. Morgan, solicitor-general, contra.
   Brovles, C. J.

The motion for a new trial was based upon the usual general grounds only; the verdict was amply authorized by the evidence, and the judgment is Affirmed.

Luke, J., concurs. Bloodioorth, J., not participating on account of illness.


text:
    17124.
    Pafford v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of assault and battery; from Berrien superior court —Judge Knight. December 22, 1925.

      Jeff S. Story, for plaintiff in error.

      H. G. Morgan, solicitor-general, contra.
   Luke, J.

The motion for a new trial in this case is based on the general

grounds only. The evidence authorized the defendant’s conviction.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17138.
    Reddick v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 67.
    Drunkards, 19 C. J. p. 802, n. 17.
    Decided April 14, 1926.
    Conviction of drunkenness on highway; from city court of Quit-man—Judge Weston. January 30, 1936.

      Stanley S. Bennet, for plaintiff in error.
   Broyles, C. J.

The accused was found “dead drunk” and in an indecent condition upon the public highway designated in the indictment. However, the evidence as to whether he voluntarily went upon the highway while intoxicated and in an indecent condition, or was involuntarily carried there by some other person, was wholly circumstantial and did not exclude every reasonable hypothesis save that of his guilt. It follows that his conviction was not authorized by the evidence, and that the refusal to grant a new trial was error. See, in this connection, Thomas v. State, 33 Ga. App. 134 (125 S. E. 778).

Judgment reversed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17141.
    FREEMAN v. THE STATE.
    It appearing that the bill of exceptions presents only a moot question, the writ of error is dismissed.
    Criminal Law, 17 O. J. p. 196, n. 31 New; p. 364, n. 35.
    Decided April 14, 1926.
    Petition for certiorari; from Fulton superior court—Judge Humphries. January 13, 1936.
    The petition for certiorari complains of the overruling of a plea in bar to an accusation in the criminal court of Atlanta, and the bill of exceptions complains of the refusal to sanction the certiorari.

      J. A. MoDuff, for plaintiff in error.

      Boy Dorsey, solicitor, John A. Boylcin, solicitor-general, J. W. LeQraw, contra.
   Luke, J.

A certificate attached to the record in this ease and sworn to by the deputy clerk of the criminal court of Atlanta, shows that the accusation which is the basis of the case “was nolprossed by Hon. Jesse M. Wood, judge of the criminal court of Atlanta, on February 8, 1936, as appears on the face of the said accusation, and as appears on the records of this court,” the criminal court of Atlanta. The accusation attached to the record before us is marked “Nolprossed February 8, 1926. Jesse M. Wood, Judge C. C. A.” This being true, any question that may be presented by the bill of exceptions is moot. “This court will in no case undertake to pass upon questions presented by a bill of exceptions, when it affirmatively appears that, even if the judgment of the court below were reverséd, the plaintiff in error would derive no benefit from the adjudication.” Davis v. Mayor &c. of Jasper, 119 Ga. 57 (1) (27 S. E. 762). Under this ruling and the facts as shown by the record, this court will not review the judgment of the superior court, refusing to sanction the certiorari. The motion to dismiss the writ of error is granted.

Writ of error dismissed.

Broyles, G. J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17143.
    Snooks, alias Harris, v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of carrying concealed pistol; from city court of Dublin—Judge Blount presiding. January 9, 1926.

      W. A. Dampier, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the evidence authorized the verdict, and the refusal, to grant a new trial was not error. '

Judgment affirmed.

Luke, J., concurs. Bloockoorth, J., not participating, on account of illness.


text:
    17148.
    SOUTHERN v. THE STATE.
    The conviction of larceny of an automobile in this case was not authorized by the evidence, which was circumstantial and did not exclude every reasonable hypothesis save that of the guilt of the accused.
    Larceny, 36 C. J. p. 899, n. 34.
    Decided April 14, 1926.

      Conviction of larceny; from Cherokee superior court—Judge Blair. January'16, 1926.

      Morris, Hawkins & Wallace, for plaintiff in error.

      John S.'Wood, solicitor-general, contra.
   Luke, J.

The defendant was charged with the theft of an automobile. There was no direct evidence connecting him with the theft, and the circumstantial evidence did not exclude every reasonable hypothesis save that of the guilt of the accused. The conviction of the accused was based almost solely upon proof of possession of the stolen car. The defendant’s explanation of his possession was not at all unreasonable.- In the ease of Jackson v. State, 33 Ga. App. 700 (127 S. E. 622), the accused was convicted of a misdemeanor, while in the case under consideration the accused was convicted of a felony, but the court in that case held that, “the guilt of the accused being wholly dependent upon inference arising from possession of the article alleged to have been stolen, and this possession being shown by uncontradicted and unimpeaehed testimony to be consistent with his innocence of' the offense charged, the conviction of the accused was unauthorized.” See also Slaughter v. State, 24 Ga. App. 428 (100 S. E. 774). The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., concurs. Bloodworth, J., not participating, on account of illness.


author: Broyles, O. J.

text:
    17166.
    Sapp v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided April 14, 1926.
    Conviction of possession of liquor; from city court of Millen — Judge Woodrum. January 13, 1926.

      G. G. Dekle, for plaintiff in error.

      E. G. Weathers, solicitor, contra.
   Broyles, O. J.

The motion for a new trial was based upon the usual general grounds only; the verdict was authorized by the evidence, and

the judgment is Affirmed.

Luke, J., concursBloodworth, J., not participating, on account of ilkiess.


text:
    17169.
    Martin v. The State.
    Criminal Law, 16 C. J. p. 1050, n. 84.
    Decided April 14, 1926.
    Conviction of possession of liquor; from Jeff Davis superior court —Judge Highsmith. January 4, 1926.

      J. B. Moore, for plaintiff in error.

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

The conviction was fully authorized, and, when the charge of the court is read as a whole, the grounds of the motion for a new trial which attack it, do not require a reversal of the judgment overruling the motion.

Judgment affirmed.

Broyles, O. J., concurs. Bloockoorih, J., not participating, on account of illness.