text:
    18354, 18355, 18356.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. TERRELL COUNTY et al.

    1. “A county, after having adopted the alternative road law as embodied in the Civil Code (1910), §§ 694 et seq., and after having levied the maximum rate of four dollars per thousand for the maintenance of the public roads of the county, can not levy an additional or special tax for that purpose.”

      (a) An uncertain, indefinite, and indeterminate part of item 9 of the 1924 levy being for supporting and maintaining convicts while repairing bridges and causeways, that entire item is void, and the court erred in not sustaining the affidavit of illegality as to it.
    2. For no other reason assigned did the court commit error in any of the three cases under consideration.
    Counties, 15 C. J. p. 638, n. 1, 15; p. 639, n. 20.
    Decided January 7, 1928.
    Affidavits of illegality of executions; from Terrell superior court —Judge Yeomans. June 15, 1927.

      II. A. Wilkinson, A. B. Lawton Jr., for plaintiff in error.

      M. G. Bdwards, contra.
   Luke, J.

The Central of Georgia Eailway Company filed in the superior court of Terrell county, Georgia, its affidavit of illegality to the levy of a tax fi. fa. issued hy William A. Wright, comptroller general of Georgia, to collect $215.78 and interest, claimed to be due Terrell county as taxes for the year 1924. All issues of fact and law were submitted to the judge of the superior court of Terrell county upon the following agreement and statement of facts: 1. “All issues of law and fact are to be submitted to the judge of the superior court of Terrell county, and his successors in office, who shall decide all questions of law and fact without the intervention of a jury, and shall be empowered to hear the case in term or vacation and to render decrees in term or vacation (without any special order in term time), from which decree an appeal may be taken by either party. 2. L. A. Downs was president of Central of Georgia Eailway Company, and was president when the affidavit of illegality was made and' filed. Exhibits ‘A’ and ‘ B ’ attached to the affidavit of illegality are correct copies of the original. 3. The State tax for 1924 was five dollars ($5) a thousand, or five mills. The valuation of Central of Georgia Railway Company’s property in Terrell county for taxing purposes in 1924 was $53,944. 4. The Central of Georgia Railway Company paid to Terrell county all of its taxes for 1924, except $215.78. 5. The grand jury was impaneled at the spring term, 1924, of the superior court of Terrell county. The grand jury made its general presentments and adjourned without making any recommendations concerning the levy of any county tax for the year 1924. There were no unsatisfied final judgments against the county, nor had any mandamus been granted requiring the county to pay any debt. The county had outstanding against it debts incurred prior to the year 1924, amounting to $50,000 principal. None of these debts had been incurred as the result of a public election. Of the $50,000 approximately $12,000 were for borrowed monej’-, which had been running through a period of years, and the remainder, approximately $38,000, were for supjfiies of all kinds purchased by the county in operating its chain-gang, building and repairing roads and bridges, feeding convicts, and such other things as are usual in road construction. The assessed value of all property on the county tax books for the year 1924 was $4,605,269. Fifty per cent, of the State tax, or $2.50 per thousand on the same, was not sufficient to discharge it (the above indebtedness); and one hundred per cent, of the State tax, or $5 per thousand, was not sufficient to discharge this accmnulated indebtedness, and to pay the ordinary, regular, current expenses of the county of Terrell for the year, as set out in items 3, 4, 5, 6 and 7 of the order levying the tax. 6. The tax of two mills levied under item 1, ‘to pay the legal indebtedness due, or to become due, during the year 1924, or past due, and to care for the casual deficiency,’ was intended to discharge in part the debt of approximately $50,000 incurred prior to 1924, as above referred to, and also to meet casual deficiency and current expenses. 7. The proceeds of the levy made in items 3, 4, 5, 6, and 7 of the order were intended to be used to discharge the ordinary, regular, current expenses of the county during the year for which the tax was levied and for the purpose named in said items. 8. Terrell county was operating under the so-called alternative road law to be found in sections 694 to 704 inclusive of Park’s Code of Georgia, and the levy in item 10 of the order ivas made under authority of that law.” The order of the commissioners of roads and revenues for said county, providing for the tax levy, is as follows: “That twenty (20) mills on the dollar of the taxable property in said county as per digest of 1923 be and the same is hereby levied, and that the same be collected by the tax-collector for the following, purposes, to wit: 1st. That two (2) mills on the $1.00 be levied to pay the legal indebtedness due, or to become due during the year 1924, or past due, and to care for the casual deficiency. 2d. Two (2) mills on the $1.00 to repair court-house, jails, and build and repair other public buildings. 3d. One and one half (1-1/2) mills on the $1.00 to pay sheriffs, jailors, county police or other officers’ fees that they may be legally entitled to, out of the county. 4th. One tenth (1/10) of a mill on the $1.00 to pay coroner’s fees that may be due them by the county for holding inquests. 5th. Two fifths (2/5) of a mill on the $1.00 to pay the expenses of the county for bailiffs at court, non-resident witnesses in criminal cases, fuel, servant’s hire, stationery and the like. 6th. One (1) mill on the $1.00 to pay jurors a per diem compensation. 7th. One half (1/2) of a mill on the $1.00 to pay expenses incurred in supporting the poor of the county, and as otherwise prescribed. by law. 8th. School tax. Levied on recommendation of the county board of education, (a) County-wide tax (except in the City of Dawson) five (5) mills on the $1.00. Also in addition the following district tax: (6) Bronwood consolidated school district, five (5) mills on the $1.00. (c) Graves school district, two and one half (2-1/2) mills on the $1.00. (d) Herod school district, two and one half (2-1/2) mills on the $1.00. '(e) Pleasant Hill school district, five (,5) mills on the $1.00. (/) Sasser school district, four (4) mills on the $1.00. (cj) Yeomans school district, four (4) mills on the $1.00. 9th. Three and one half (3-1/2) mills on the $1.00 for purchasing material for building and repairing bridges, causeways, and other public works, and supporting and maintaining the convicts while doing said work. 10th. Four (4) mills on the $1.00 to pay the expenses incurred in opening up, improving, and maintaining the public roads of said county. Making in the aggregate the sum of fifteen (15) mills on the $1.00 on the taxable property of said county for county purposes; also five (5) mills on the $1.00 on all taxable property in the county (except the City of Dawson) for educational purposes; also on the property in the school districts above named the additional tax specified. This September 2d, 1924.”

The trial judge rendered the following opinion, order, and judgment: “The above-stated case coming on regularly for a hearing-in open court, and by agreement of counsel being submitted to the judge for final determination in this court on both the law and the facts, without the intervention of a jury, and the facts having been agreed upon by counsel; the judge hereby finds against the affidavit of illegality, and the fi. fa. is ordered to proceed, and judgment rendered against Central of Georgia Railway Company for $ costs.” To this judgment the Central of Georgia Railway Company duly excepted. These three cases involving the legality of tax levies made in Terrell county for the years 1924, 1925, and 1926, respectively, involve largely the same question of law and fact. Therefore, they will be considered _ together.

The affidavits of illegality filed to the 1924 and 1925 levies question the first item of the levy for those years. Item 1 of the 1924 levy is: “That two (2) mills on the $1.00 be levied to pay the legal indebtedness due or to become due during the year 1924, or past due, and to care for the casual deficiency.55 It appears from the statement of facts that this levy “was intended to discharge in part the debt of approximately $50,000 incurred prior to 1924, as above referred to, and also to meet casual deficiency and current expenses.55 The 'affidavit alleges that this item is void because: (a) “The proceeds of the levy were not to be used to discharge lawful debts of the county.” (6). “There was no debt in existence in connection with any casual deficiency. The county had made no temporary loan to discharge casual deficiencies of revenue.5 No casual deficiency in fact existed. The levy for ‘ casual deficiency5 was therefore void, and an uncertain, indefinite, and indeterminate part of the levy in item 1 being void, the entire levy is void.55 (c) “The obligations to be discharged from the proceeds of .the levy had not been incurred with the assent of two thirds of the qualified voters of the county, . . and no tax could be levied to discharge them without the recommendation of the grand jury.55

Bearing in mind that “All presumptions are in favor of the legality of a tax” (Blalock v. Adams, 154 Ga. 326 (3) (114 S. E. 345)), and that the burden rests upon the party attacking it to make good his contentions, we hold that the levy is not void for the reason assigned in (a) supra. No facts to sustain the conclusion asserted are indicated, and we can not fairly say from a search of the record that such facts exist.

Objection (&) to item 1 of the levy is substantially this: The levy is void because an indefinite and indeterminate part of it, to wit that part for “casual deficiency,” is void for designated reasons. Those reasons are: (1) There was no existing debt in connection with any casual deficiency. (2) The county made no temporary loan to supply casual deficiencies of revenue. (3) No casual deficiency in fact existed. We fail to find in the record evidence to sustain any one of the reasons asserted; and since the invalidity of the entire item is based upon the proposition that the levy for “casual deficiency” is void, we are constrained to overrule this ground of the affidavit of illegality.

It does not appear from the record that the levy in item 1, supra, required either a recommendation of the grand jury, or a plebiscite. See in this connection Central of Georgia Ry. Co. v. Wright, 165 Ga. 1 (139 S. E. 890).

The next objection is that item 9 of the 1924 levy is void because an uncertain, indefinite, and indeterminate portion thereof, to wit that part of the tax “for supporting and maintaining the convicts while engaged on bridges and causeways,” is void for the reason that item 10 levied'the maximum tax of 4 mills allowed by law. We think that it is clearly deducible from the reasoning in Central of Ga. Ry. Co. v. Meriwether County, 148 Ga. 423 (96 S. E. 884), that in enacting the alternative road law it was the purpose of the General Assembly to provide an adequate and complete law for any county adopting it; and that when a county operating under that law has levied the maximum tax allowed under section 696 of the Civil Code (1910), the said tax plus the commutation tax constitutes a fund designed to meet all the ordinary and usual expenditures made in “working, improving, and repairing the public roads.” See also, in this bonnection, Wright v. Alabama Great So. R. Co.,150 Ga. 140 (102 S. E. 821); Carter v. Shingler Realty Co., 157 Ga. 118 (120 S. E. 784). We think that the objection to the item under consideration is good, and that the court erred in overruling it. This ruling, applies solely to the ease involving the 1924 levy.

The third objection to the 1924 levy is that the levies to pay current expenses, t’o wit those items numbered 3, 4, 5, 6, and 7, total 3.5 mills, and exceed fifty per cent, of the State levy by 1 mill. The fourth objection to the 1924 levy is that items 1, 3, 4, 5, 6, and 7 aggregate 5.5, and are illegal to the extent that they exceed one hundred per cent, of the State tax. Similar objections are made in the two cases involving the taxes for the. years 1925 and 1926. Our opinion is that all these objections are controlled in principle by the decision in Central of Ga. Ry. Co. v. Wright, supra, and that none of them is meritorious.

Our conclusion is that item 9 of the 1924 levy is void for the reason assigned. For no other reason assigned did the court commit error in any of. the three cases under consideration.

Judgment reversed in case 18354J affirmed in cases 18355 and 18856.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    18485.
    LOVE v. MURRAY COUNTY.
    Where, on a proceeding under the Civil Code, § 640, to open a road, a landowner who interposed Ms claim, for $2500 as damages was awarded but $250 by the jury, and thereafter, instead of having that award reviewed by certiorari, he brought a suit in the superior court to recover of the county $3000 as damages for taking part of his land and decreasing the market value of the part not taken, a plea of res judicata in defense to that suit was properly sustained.
    Eminent Domain, 20 C. J. p. 1065, n. 48; p. 1068, n. 85.
    Decided January 7, 1928.
    Action for damages; from Murray superior court—Judge Pittman.

      II. H. Anderson, for plaintiff. C. N. King, for defendant.
   Luke, J.

J. E. Love brought his action for damages against Murray County, alleging that, by opening a road approximately 110 rods long and from 30 to 35 feet wide across an eighty-acre tract of farm land of his, the defendant had actually taken about two acres of land of the value*of $250 per acre, and by cutting the tract in two parts had decreased the market value of the land $3500, thus damaging him in the sum of $3000. The defendant filed its plea of res adjudicata; the court directed a verdict for the defendant upon the said plea, and the plaintiff excepted. It appears from the record that in 1935 proceedings were instituted under the Civil Code (1910), § 640 et seq.. to open the road in question, that J. E. Love put in his claim for $3500 damages under section 678 of the Civil Code (1910), and that the jury awarded him $350 damages.

Since it appears from the record that every matter sought to be put in issue in the present action could have been determined in the former statutory proceeding for damages, the plea of res adjudicata was properly sustained. The court did not err in directing a verdict. If Love were dissatisfied with the $350 award, his proper procedure was certiorari to review the judgment based on that award. Civil Code (1910), § 686.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    18571.
    Stedham v. Farmers State Bank of Temple.
    Appeal and Error, 3 O. J. p. 473, n. 26.
    Decided January 7, 1928.
    Complaint; from city court of Carrollton—Judge Hood. September 13, 1937.

      8. Holderness, for plaintiff in error. Boykún & Boykin, Smith, Hammond & Smith, contra.
   Bloodworth, J.

In the bill of exceptions the only judgment excepted to was the overruling of a motion for a continuance of the ease. There was no exception to the verdict and the judgment based thereon. It is obvious that a judgment overruling a motion to continue a cause is not a final judgment within the meaning of section 6138 of the Civil Code of 1910; and the bill of exceptions, containing no exceptions to any judgment or decision final in its nature, can not be entertained. See, in this connection, Moore v. Hill, 87 Ga. 91 (13 S. E. 259); Barney v. Bowles, 112 Ga. 421 (37 S. E. 364) ; MeCranie v. Shipp, 10 Ga. App. 544 (73 S. E. 701); Cheney v. Corbitt Motor Truck Co., 36 Ga. App. 590 (137 S. E. 412).

Writ of error dismissed.

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


text:
    18573.
    Coleman v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Decided January 7, 1928.
    Adultery and fornication; from Crisp superior court—Judge Crum. September 30, 1927.
    Charley Coleman was convicted under an indictment which charged him with having committed adultery and fornication with Lessie Boyer. From the evidence for the State it appears that on a Saturday, shortly before midnight when the occupants of the Dawkins home just outside the city limits of Cordele were away, the defendant, a married man, went to that house in a car with Lessie Boyer, an unmarried girl, nineteen years old, and they remained in the house alone until Sunday afternoon about 4 o’clock. A man working during the night and until 7 o’clock the next morning at a coal chute near the Dawkins house and “in plain view of the house” testified that there was no light in' the house when they entered and he did not see any light after they went in. One of the Dawkins family, a boy, who had been told by this man that they were in the house, testified that when he got back there Sunday morning about 7 o’clock the door was fastened on the inside, and that he knocked on it but got no response; that he went back in a car in the afternoon, with others, but did not get into the house until about 4 o’clock. As to what occurred at that time he testified: “I called Mr. Coleman and told him that he would have to get out, and he said, ‘Well.’ He finally opened the door, and when we went in the house Charley Coleman and Lessie Boyer were in there. . . Charlie Coleman was standing up and the girl was sitting on the . . side of the bed. . . There were two beds in that room. One of them had been slept in; that bed was in a pretty bad condition, was torn up and wallowed over, the sheets' rumpled up. . . The girl was dressed when I went in, all but her slippers, which were sitting down by the side of the bed. Coleman was dressed. . . Coleman said he would go if I would take them home, and I took them,—carried her to her home and brought Coleman back here to Cordele. The girl lived on Mr. Wade’s place, about eight or nine miles in the country. . . When I left the house Saturday night the bed on which I found the girl sitting the next afternoon was in good order. . . There were two pillows on that bed, and both of them had been used.” The defendant and the girl had previously been seen together riding and at parties and on other occasions. The defendant, in his statement at the trial, denied that he was at the Dawkins home on the Saturday night mentioned, and said that he got in a car with young Dawkins and the girl Lessie Boyer that night, at the request of Dawkins, and rode with them to Pulaski county, and, at the insistence of Dawkins, went to the Dawkins home with them on Sunday morning, that they all went out in a car in the country on Sunday, and that later Dawkins took the girl home and then brought him home.
   Luke, J.

While the evidence, which is entirely circumstantial, raises a grave suspicion of the defendant’s guilt, it does not exclude every other reasonable hypothesis than that of his guilt; and for this reason alone the judgment overruling his motion for a new trial is reversed.

Judgment reversed.

Broyles, O. J., concurs. Bloodworth, J., dissents.

Strozier & Gower, G. L. Harris, for plaintiff in error, cited:

Long v. State, 5 Ga. App. 176; Mathis v. State, 30 Ga. App. 10; 32 Ga. App. 542; Weems v. State, 84 Ga. 461.

T. Hoyt Davis, solicitor-general, contra.


text:
    18587.
    MOON v. CITY OF ATLANTA.
    “A petition for certiorari to review the judgment of a police or recorder’s court, unless a pauper’s affidavit is made, must affirmatively allege-(among other things) that the petitioner has filed with the clerk of that court, if it has a clerk, a bond payable, etc., and conditioned, etc., which has been approved and accepted by said clerk; and there should be attached to the petition a certified copy of the bond, together with a certificate from the clerk of the court that the bond was filed with him and was approved and accepted by him. Unless all these things appear, to wit, the aforesaid allegations in the petition, the certificate of the clerk of the court verifying them, and a certified copy of the bond given, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing.”
    Criminal Law, 17 C. J. p. 98, n. 93 New.
    Decided January 7, 1928.
    Certiorari; from Fulton superior court—Judge Howard. October 19, 1927.
    Application for certiorari was made to the Supreme Court.

      T. F. Bowden, Hewlett & Dennis, for plaintiff in error.

      J. L. Mayson, G. S. Winn, contra.
   Luke, J.

Having been convicted of disorderly conduct, in the recorder’s court of the City of Atlanta, H. M. Moon carried his case, by certiorari, to the superior court. The petition was sanctioned, and when the case came on for a hearing, the certiorari was dismissed because the copy of the certiorari bond attached to the petition was not certified.

It is insisted that it was not necessary to attach a certificate to the copy of the certiorari bond, because the recorder admitted the correctness of paragraph 3 of the petition, which is .as follows: “Said judgment and sentence of the court being adverse to your petitioner, and he being dissatisfied with the same, and now within thirty days from the final determination of .said ease, petitioner having heretofore complied with all the requirements of the law in such cases made and provided, having filed his affidavit, and a notice and bond as required in such cases with the clerk of the Recorder’s Court of the City of Atlanta, copies of which are hereto attached and marked ‘ Exhibit B ’ and ‘ C,’ respectively, both of which are hereby made a part of this petition, and to which reference is prayed as often as is necessary.” .

Attached to the petition as an exhibit is a copy bond, and at the bottom of the bond the following appears: “Approved and accepted. E. H. Womack, Clerk Recorder’s Court, City of Atlanta.” There was no certificate to the copy bond.

The act of 1902 (Ga. L. 1902, p. 105; Park’s Code, § 5191(a)), provides that a party who seeks a writ of certiorari to review and correct the judgment of any recorder’s court “shall first file with the clerk of said court, or if no clerk, with the judge of said court, except when the defendant is unable from poverty to give bond and a proper pauper affidavit is furnished, a bond payable to the municipal corporation under which such court exists, in amount and with surety acceptable to and approved by the said clerk or judge, as the case may be, conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence of said court, or of the superior court, in said case.” The following is quoted from Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970) : “Unless all these things appear, to wit, the aforesaid allegations in the petition, the certificate of the clerk of the court verifying them, and a certified copy of the bond given, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing.” See also Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720); Hargett v. Columbus, 36 Ga. App. 628 (137 S. E. 911).

We think that the law laid down in the Gillespie case, supra, is sound, and that, applying that law to the facts of this case, the judge did not err in dismissing the certiorari.

Judgment affirmed.

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


text:
    18589.
    McCartney v. Wilson.
    It was error to render final judgment on sustaining a certiorari, where there was conflict in the evidence on a material issue of fact.
    Certiorari, 11 C. J. p. 212, n. 65.
    Decided January 7, 1928.
    Certiorari; from Eulton superior court—Judge Howard. October 17, 1927.

      Savage & Crawford, for plaintiff in error.

      Underwood, Haas & Gcmbrell, B. Hmerson Gardner, contra.
   Luke, J.

The question presented by this record is whether or not the judge of the superior court erred in reversing the judgment of the appellate division of the municipal court of Atlanta, and rendering a final judgment for Mrs. S. T. Wilson in her suit on a note against G. L. McCartney.

The sustaining of the certiorari was not error. However, there 'being some conflict in the evidence as to whether or n'ot the money sued for was a gift and not a loan, the court erred in rendering a final judgment, and the ease should be remitted to the municipal court of Atlanta for another hearing. In view of the foregoing, it would answer no good purpose to review the evidence as to the other defenses interposed.

Judgment reversed.

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


text:
    18598.
    Carpenter v. The State.
    Criminal Law, 17 C. J. p. 148, n. 73 New.
   Bloodworth, J.

The date of the judge’s certificate to the bill of exceptions will be presumed to be the date on which it was tendered to him, where it does not affirmatively appear from the bill of exceptions or from the certificate thereto that it was tendered on a different date. The judgment complained of was rendered on October 7, and the bill of exceptions was certified on November 2. It thus appears that the bill of exceptions was not tendered to the judge within twenty days from the date of the judgment complained of, and the writ of error is

Decided January 7, 1928.

Writ of error from city court of Richmond county.

II. A. Woodward, Paul T. Chance, for plaintiff in error.

W. Inman Curry, solicitor, contra.

Dismissed.

Broyles, O. J., and Luke, J., eonom-.


text:
    18603.
    McCAULEY et al. v. THE STATE.
    Under previous rulings as to omission to charge the jury upon the sole defense of alibi, even without request, a new trial should have been granted as to one of the plaintiffs in error. As to the other, no error requiring a reversal appears.
    Criminal Law, 16 C. J. p. 1058, n. 33.
    Decided January 7, 1928.
    Making intoxicating liquor; from Troup superior court—-Judge Roop. October 25, 1927.

      Dulce Davis, B. W. Martin, for plaintiff in error.

      William 7. Atlcwison, solicitor-general, contra.
   Luke, J.

Willie McCauley and Squire Woodyard were convicted of manufacturing liquor. A reversal of the judgment must be had as to McCauley, under the following rule of law quoted from Hobbs v. State, 8 Ga. App. 53 (3) (68 S. E. 515) : “When alibi is the only defense set up by a defendant in a criminal case, and this defense is sustained by testimony, the jury should be properly instructed in the rules governing the consideration of the subject of alibi, even in the absence of a request, and although the defense of alibi is included in the general plea of ‘not guilty.’ It is the duty of the court to instruct the jury, without request, in the law applicable to the substantial issues presented by the evidence.”

There being sufficient evidence to support the jury’s verdict finding Woodyard guilty, and the motion for a new trial disclosing no reversible ' error as to him, the court properly overruled the motion for a new trial in so far as Woodyard is concerned.

Judgment reversed as to McCmley, and affirmed as to Wood-yard.

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


text:
    18609.
    Spear v. The State.
    Rape, 33 Cyc. p. 1493, n. 71.
    Decided January 7, 1928.
    Assault with intent to rape; from McDuffie superior court— Judge Perryman. October 21, 1927.

      B. J. Stevens, for plaintiff in error.

      George Hains, solicitor-general, John M. Graham, T. B. Burnside, contra.
   Luke, J.

1. It appearing from the evidence that while a girl approximately thirteen years old was walking down a path near her home in the country, a hoy about fourteen years of age, who had been in hiding, ran after and overtook the girl, and told her she “would have to give up to him” before he would turn her loose, and, despite her screams, threw her down and was on top of her when a third person approached and ordered the boy to leave the girl alone, this court can not say that the evidence was insufficient to sustain the conviction of the boy for assault with intent to rape.

2. None of the grounds of the motion for a new trial discloses reversible

error. Judgment affirmed.

Broyles, G. J., and Blood/worth, J., concur.


author: Bloodwqrth, J.

text:
    18612.
    Cronin v. The State.
    Criminal Law, 16 C. J. p. 748, n. 53; p. 964, n. 31; p. 1057, ri. 26; p. 1059, n. 42; p. 1063, n. 85.
   Bloodwqrth, J.

1. Eor no reason alleged does the excerpt from the charge embodied in the first special ground of the motion for a new trial require a rehearing of the case.

2. “It is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the ease, that some other correct and appropriate instruction was not given.” Grant v. State, 152 Ga. 252 (109 S. E. 502). See Conley v. State, 21 Ga. App. 134 (94 S. E. 216). “In the absence of an appropriate written request to charge, the judge was not required to charge the jury more fully than he did as to the contentions of the accused.” Hall v. State, 36 Ga. App. 279 (136 S. E. 468). The rulings in the foregoing cases dispose of the 2d special ground of the motion.

3. “While it is the duty of the court, without request, to present the particular defense upon which the defendant in a criminal prosecution relies, it is not necessary, in the absence of a request, to refer specifically to the particular testimony upon which that defense is based, or to inform the jury of the defendant’s specific contentions.” Groves v. State, 8 Ga. App. 691 (2) (70 S. E. 93). See also Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); Williams v. State, 120 Ga. 870 (48 S. E. 368); Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (3) (58 S. E. 769). “If the substantial law covering the issues made by the pleadings and evidence is given in charge, and more specific instructions are desired, timely and appropriate written request therefor should be made. Anthony v. State, 6 Ga. App. 784 (3) (65 S. E. 816).” Weldon v. State, 21 Ga. App. 330 (1 a, b) (94 S. E. 326). Under the foregoing rulings there is no merit in the 3d special ground of the motion for a new trial.

Decided January 7, 1928.

Burglary; from Whitfield superior court—Judge Pittman. November 14, 1927.

D. W. Mitchell, for plaintiff in error.

John C. Mitchell, solicitor-general, contra.

4. As far as legal and pertinent, the requests to charge set out in grounds 4, 5, and 6 of the motion were covered by the charge given.

5. There was evidence upon which to base the hypothetical question asked the witness, of which complaint is made in the 7th special ground of the motion, and it was not error to allow the question asked on cross-examination. Even should it be conceded that the answer was a conclusion of the witness, the facts upon which he based his conclusion were stated. “Any witness may give his opinion as adduced from facts already fully stated by him, the value of the opinion being for the jury.” City of Cedartown v. Brooks, 2 Ga. App. 588 (11) (59 S. E. 836).

6. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    17995.
    SOUTHERN EXCHANGE BANK v. FIRST NATIONAL BANK OF DUBLIN.
    1. A national bank has implied power to make a valid and binding contract of guaranty when the contract is made for its own. benefit.
    2. While a national bank is not estopped from denying the legality of an ultra vires contract which is executory, yet if such a contract be executed, the bank can not retain the benefits it may have received under the contract and repudiate the contract.
    Banks and Banking, 7 O. J. p. 815, n. 95; p. 834, n. 81.
    Decided January 10, 1928.
    Action on contract; from Laurens superior court—Judge Graham presiding. January 26, 1927.
    Application for certiorari was made to the Supreme Court.
    The Southern Exchange Bank brought an action against the First National Bank of Dublin, for a breach of contract. The material parts of the plaintiff’s petition as amended (formal parts omitted) were as follows:

      “Georgia, Laurens County. The petition of the Southern Exchange Bank, a corporation of said State and County, shows the following: (1) That the First National Bank of Dublin is a national banking corporation under the laws of the United States of America, having its residence in said county. (2) That on October 19, 1921, the First National Bank of Dublin, by, and through its directors as above mentioned, made, executed, and entered into a contract with your petitioner, a copy of which is hereto attached, marked Exhibit A, and by reference thereto is made a part hereof. (3) It was on said date well known to petitioner, to the First National Bank of Dublin, and to all of its directors, that the Citizens Bank, a banking corporation of said State and county, was in failing .circumstances and was liable to close its doors, whereby loss would be suffered by its depositors, which would very likely result in the withdrawal of deposits from the Southern Exchange Bank and the'First National Bank, and in fact a probable run on each of said banks would cause them great loss, injury, and damage. (4) In order to prevent the loss, injury, and damage to petitioner and the First National Bank of Dublin as alleged in the preceding paragraph, the contract hereto attached was in good faith executed by and between petitioner and said defendant bank, and has been in good faith fully performed by the petitioner. By reason of the execution and performance by the plaintiff of the aforesaid contract, the banking situation at Dublin was -improved and the threatened run on the defendant was averted. The sole and entire consideration which induced the defendant to sign said contract was its own protection against injury and loss in the conduct of its banking business as alleged. (Italics ours.) (5) On said date, between petitioner, said defendant bank, and its directors, . . it was agreed that petitioner should take charge of the assets of all kinds, except stockholders’ liability of the said Citizens Bank, and liquidate the same for a period of three years; and the petitioner should pay as due or demanded tire liabilities of said bank, except liabilities to stockholders. If at the end of said liquidation period petitioner had collected enough to reimburse itself together with expense of liquidation and legal interest, the remainder should be paid over to said Citizens Bank. (6) It was further agreed that if at the end of said liquidation period petitioner had not collected enough from the assets of said Citizens Bank to reimburse itself with expense and interest, the First National Bank of Dublin should then and there be liable to petitioner for one half of its loss, but in no event to exceed $14,000. In determining its loss at the end of said period of liquidation the assets of said Citizens Bank should be appraised by a board of appraisers appointed by petitioner and said defendant bank. (7) At the end of said liquidation period petitioner sustained a loss far in excess of $28,000, to wit the sum of-dollars.' (8) At the end of said liquidation period when petitioner had a right to call upon the First National Bank of Dublin for a settlement of its duty under said contract and on demand therefor, said bank, by and through its directors, . . . informed petitioner that it would not perform its obligations under said contract, for the reason that it had been advised by the national banking authorities that said contract was illegal and was not binding upon said bank. No other reason was given for its dishonor of its obligation under said contract. (9) Said First National Bank of Dublin did not at any time during said three-year period of liquidation and while petitioner was performing its obligations to the letter notify petitioner of its intention to repudiate and dishonor its obligations as aforesaid. (10) Plaintiff was induced to take over the assets of the Citizens Bank and assume its liabilities, as set out in paragraphs two to eight of its petition, by agreement of the defendant, the First National Bank, to guarantee it against loss, up to $14,000, on account of said transaction. (11)' The agreement set out as Exhibit A to plaintiff’s petition was made between the plaintiff and the defendant, the First National Bank, before plaintiff agreed to assume the liabilities and take over the assets of said Citizens Bank, and was a substantial and material part of the consideration which induced it to do so.”
    The contract referred to and attached as Exhibit A to the petition (formal parts omitted) was as follows:
    This agreement, executed in duplicate this the 19th day of October, 1921, by the Southern Exchange Bank, a banking corporation under the laws of Georgia and a resident of Laurens County, as party of the first part, and the First National Bank of Dublin, a national banking corporation under the laws of the United States of America and resident of Laurens County, Georgia, as party of the second part, witnesseth that whereas the Southern Exchange Bank has taken over the assets and assumed the liabilities of the Citizens Bank, a banking corporation, resident of Laurens County, Georgia, as of this date, and whereas it is to the mutual benefit and interest of the parties hereto that the First National Bank of Dublin render such aid and assistance to the Southern Exchange Bank as it deems proper, now therefore, for and in consideration of the mutual benefits to be derived from the terms of this contract, the parties hereto, by and through their proper officers,- do hereby contract, covenant, and agree as follows: (1) The party of the second part agrees and covenants to guarantee and indemnify the party of the first part against a loss in the amount hereinafter mentioned, which may grow out of a failure of the assets of the Citizens Bank, to meet the liabilities of the said Citizens Bank, assumed by party of the first part, but in no event is the amount of liability on the part of the party of the second part to party of the first part to be in excess of $14,000, and to be subject to all the terms, conditions, and limitations of this agreement. It is understood that the liability of the party of the second part to the party of the first part shall be a liability for its part of the loss sustained by party of the first part arising out of those liabilities of the Citizens Bank which are assumed by party of the first part and which are as follows: bills payable, deposits, both time and demand, outstanding cashier’s checks, certified checks, unremitted collections and bank overdrafts, but not stockholders’ statutory liability. - (2) It is expressly understood and agreed that no liability for any amount whatever shall accrue under this agreement, until the expiration of three years from the date hereof, and if at any time during said three years from the date of this contract the said party of the first part shall realize from the assets of the Citizens Bank, enumerated above, then and in that event there shall be no liability whatever under this contract. (3) The party of the first part shall have three years from the date of this contract to liquidate and to realize upon the assets of the Citizens Bank, and if at the end of such period of time the liabilities of the Citizens Bank have not been paid, and should the Southern Exchange Bank be liable therefor, then the liability of the First National Bank under this contract shall be fifty per cent, of the amount ascertained for which the Southern Exchange Bank will be liable to the creditors of the Citizens Bank, but said fifty per cent, shall in no case exceed the sum of $14,000, which sum is made the maximum liability hereunder. (4) It is understood and agreed that if at the expiration of the period of time referred to there should be any liability upon the part of the party of the first part to the creditors of the Citizens Bank, such liability, for the purpose of this contract, shall be only that amount in excess of the value of the assets of the Citizens Bank remaining in the hands of the party of the first part, and the value of such assets shall be arrived at by the parties of this contract each appointing a committee of two, and if said committee can not agree on said value, then said committee shall select a fifth man,-and the finding of said committee as constituted shall be binding upon the parties hereto, as to the value of said assets. The party of the second part reserves the right to take over the assets of the Citizens Bank remaining at such time upon the valuation so placed, but in no way obligates itself so to do. In arriving at the value of the assets as above provided, the cash value of the liability of the stockholders of the Citizens Bank under the statutory liability provided by law shall be arrived at and assessed and included in the assets of the Citizens Bank. (5) The ascertained liability existing under this contract upon the part of party of the second part at the time of its accrual is to be paid pai;ty of the first part as follows: $2,000 in cash at the time of the accrual and ascertainment of said loss, and the balance of said loss to be represented by notes maturing twelve months from the date of said cash payment and annually thereafter until said indebtedness is met in full, said notes to be for the sum of $2,000 each, or such part thereof as may be necessary to close the liability, to be without interest, and to be stamped upon their face as non-negotiable and subject to the terms of this contract. (6) Party of the second part agrees that upon the ascertainment and accrual of its liability under this contract, it will advance and-lend to the party of the first part said amount, and the party of the first part is to execute to party of the second part thereof its promissory notes without interest and stamped nonnegotiablé and subject to all terms of this contract. These notes are to be for the same amount and to mature upon the same date as the notes of party of the second part to party of the first part, referred to in paragraph 5 of this agreement. It is agreed that the notes executed by the party of the second part to the party of the first part shall be paid by crediting upon the notes of the party of the first part the amounts due, and as due under this contract, and upon said application being made, party of the first part is to return to party of the second part notes of an equal amount which may be held by party of the first part and signed by party of the second part and executed under this contract-. (7) The liability under this contract is to the Southern Exchange Bank solely, and is not transferable or assignable, and should said bank be consolidated or merged with any bank or banks, or liquidated, this contract shall be null and void, unless said Southern Exchange Bank shall continue its corporate existence. If such consolidation, merger, or liquidation occurs after liability becomes fixed under this - contract, party of the second part shall have the right to take over the assets of the Citizens Bank in sufficient [amount?] to protect any liability according to its pro rata rights under the terms of this contract, or at its option it may allow the successors or assigns of party of the first part to complete, the final disposition of such assets of the Citizens Bank. (8) All notes and accounts and other assets of the Citizens Bank which are extended or renewed, and in such extension or renewal are made payable to the Southern Exchange Bank, áre to be applied to Southern Exchange Bank in the liquidation of the indebtedness of the Citizens Bank, and party of the second part is to have credit for such items in arriving at the amount of final liability. (9) Party of the second part is to have access at all times to the records of party of the first part in so far as they relate to or bear upon the affairs of the Citizens Bank, and party of the first part agrees to furnish to party of second part a monthly condensed statement showing the amount -of assets of the Citizens Bank collected and how applied, it being the intention of this paragraph that party of. the second part shall be kept fully informed at all times as to the exact standing of the affairs of the Citizens Bank.
    The defendant bank demurred to the petition on the ground that the contract attached thereto affirmatively appeared to be a contract of guaranty for the benefit of third persons, and therefore was "ultra vires on the part of this defendant.” The court sustained the demurrer and dismissed the case, and the plaintiff excepted.

      Hightower & New, John S. Adams, Thomas W. Hardwick, for plaintiff.

      Burch & Daley, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.)

It is well settled by numerous and repeated decisions of all courts that a national bank can not bind itself by a contract of guaranty made solely for the benefit of another. However, it is equally well settled that a contract of guaranty made by such a bank for its own benefit is valid and binding and is not ultra vires. The power to malee such a contract is one of the implied or incidental powers arising from the express or specific powers granted to national hanks by the provisions of section 5136- of the Revised Statutes of the United States. Under that section a national bank has all the incidental powers to carry on the banking business, and the petition in the instant casé alleges, in substance, that the contract in question was made to protect and preserve the banking business of the defendant bank and to save it from a probable monetary loss and financial ruin. See, in this connection, People’s Bank v. National Bank, 101 U. S. 181 (25 L. ed. 907); Cochran v. United States, 157 U. S. 286, 297 (15 Sup. Ct. 628, 39 L. ed. 704); Schofield v. State National Bank, 97 Fed. 282 (3) (38 C. C. A. 179).

Moreover, even if it be conceded that the contract in question was ultra vires on the part of the defendant bank, under the facts set forth in the petition and the allegations therein showing that the plaintiff bank had fully performed its part of the contract, and that by reason of such performance a substantial benefit had accrued to the defendant bank, which benefit it still retained, the defendant bank is estopped from setting up such a defense. People’s Bank v. National Bank, supra; National Bank v. Graham, 100 U. S. 699 (25 L. ed. 750); Johnson v. Mercantile Trust &c. Co., 94 Ga. 324 (21 S. E. 576); Towers Excelsior &c. Co. v. Inman, 96 Ga. 506, 509 (23 S. E. 418); Bank of Garfield v. Clark, 138 Ga. 798 (2), 801, (76 S. E. 95); Savannah Ice Co. v. Canal-Louisiana Bank &c. Co., 12 Ga. App. 818 (8) (79 S. E. 45).

It follows from the foregoing rulings that the petition in this case sets out a cause of action and that the court erred in dismissing it on demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18319.
    MILES et al. v. SMITH et al.

    1. An agency to sell does not necessarily carry ■with it authority to collect. The agent must act within the authority granted him, and persons dealing with any agent appointed for a particular purpose are bound to inquire as to the extent of his authority.
    2. Since the undisputed evidence shows that the" plaintiffs delivered the goods as shown by the bill of lading, that the defendants received the goods, that the plaintiffs neyer received payment therefor, that the agent had no authority to collect for plaintiffs, and that the defendants paid the agent for the goods without authority or ratification by the plaintiffs, the verdict for defendant was unauthorized by the evidence,1 and the court erred in overruling the motion for a new trial.
    Agency, 2 O. J. p. 607, n. 5; p. 880, n. 69.
    Sales, 35 Cye. p. 574, n. SO.
    Decided January 10, 1928.
    Complaint; from Bryan superior court—Judge Daniel. June 8, 1927.

      J. B. Moore,, for plaintiffs. J. P. Buhes, for defendants.
   Luke, J.

E. E. Miles, R. M. Dunn, W. D. Dunn, and G. W.

Dunn, as copartners doing business under the firm name of Pine Grove Stave Company, brought suit against Á. G. and L. W. Smith on an open account for $178.75, the price of 325 bundles of barrel staves at 55 cents per bundle, alleged to have been sold to the defendants June 24, 1926. L. W. Smith pleaded that A. G. Smith died in December, 1926, and that he, L. W. Smith, had never purchased any staves from the plaintiffs, but did in 1926, purchase from one E. N. Rushing 375 bundles of staves, and on the 9th of November 1926, paid Rushing for the staves. The jury rendered a verdict for the defendants; the plaintiffs made a motion for a new trial, which was overruled, and the plaintiffs excepted.

In view of the note of the trial judge, included in his order overruling the motion Tor a new trial, which is a part of the certified record before us, the special grounds of the motion show no cause for a reversal. ■ On the general grounds a reversal is required, as the verdict for the defendants was unauthorized by the- evidence. The record shows that the defendants paid Rushing for the staves, and the controlling question for determination by the jury was whether or not, under the evidence, the defendants had a legal right to pay Rushing for the goods, and whether or not the plaintiffs were bound by such payment. Since questions of’ fact on which the evidence is conflicting axe fox the exclusive determination of the jury, we will call attention only to the undisputed testimony, and its materiality. The plaintiffs introduced in evidence “the bill of lading issued by the Southern Railway Company, Pine Grove, Georgia, June 33, 1936, from Pine Grove Stave Company, consignor, and consigned to A. G. & L. W.' Smith at Ellabell, Georgia, Route S. O. TL, Helena, A. S. L. Car initial S. 0. IT., car No. 154733. Number of packages, one car 335 bundles S. L. C., by Mrs. C. Hall, Agent.” The genuineness and correctness of this bill of lading was not disputed, and it showed not only delivery by the plaintiffs to the defendants of the goods the price of which was sued for, but also showed physical possession of the goods in the plaintiffs; which precluded a presumption of ownership, because of possession, in the agent Rushing, to whom payment was made by the defendants. See Harris Loan Co. v. Elliott & Hatch Booh Typewriter Co., 110 Ga. 302 (3) (34 S. E. 1003). The following testimony of E. E. Miles, a member of the plaintiff company, is also -undisputed: “We sell these staves at 55 cents, f. o. b. cars that point. I have never been paid for these staves, and no part of it has ever been paid to my firm, and the account is due and correct, $178.35. We delivered the staves to the Southern Railroad Company at Pine Grove, and took this bill of lading for them. This is the bill of lading we obtained for them. They were shipped to A. G. & L. W. Smith, whatever is on the bill of lading, at Ellabell, Georgia. This debt hasn’t been paid. Mr. Rushing was not authorized to make any collections for us at all. We specifically directed him not to. These staves were shipped on June 33, 1936, the date of this bill of lading. Mrs. 0. Hall is the agent at Pine Grove for the Southern Railway Company,—been agent for several years.”

An agent may be limited by his authority, and “agency to sell does not necessarily carry with it authority to collect.” Walton Guano Co. v. McCall, 111 Ga. 114 (36 S. E. 469). In the instant case the agent had no authority to collect for his principal, as is shown by the undisputed evidence. “The agent must act within the authority granted to him” (Civil Code (1910), § 3576), and “persons dealing with an agent appointed for a particular purpose are bound to inquire as to the extent of his authority.” Harris Loan Co. v. Elliott & Hatch Co., supra; Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480 (33 S. E. 591); Dannenberg Co. v. Hughes, 30 Ga. App. 83 (116 S. E. 892). The record fails to disclose any concealment of agency by the plaintiffs, or any ratification by them of the collection made by the agent. It does show that the declarations made by the agent as to his authority to collect were made when he came to collect, and not at the time of sale, and hence were not even made dum fervet opus. In this connection see Franklin County Lumber Co. v. Grady County, 133 Ga. 557 (66 S. E. 264).

Since it is undisputed that the plaintiffs delivered the goods as shown by the bill of lading; that the defendants received the goods; that the plaintiffs never received payment therefor; that Eushing had no authority to collect for the plaintiffs, and that the defendants had paid Eushing for the goods, the verdict for the defendants was unauthorized by the evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    18322.
    BUTLER v. PICKENS.
    1. The motion to dismiss the bill of exceptions is denied.
    2. Under the facts of this case the plaintiff’s counsel could not, by marking the ease settled on the justice-court docket, deprive the defendant of his right of appeal and preclude defendant’s recovery on a counter-claim previously filed.
    3. Whether or not the defendant received credit for the market price of his cotton was a vital question of fact on which there was conflicting evidence; and there being questions of fact involved, the judge of the superior court erred in rendering final judgment in favor of the plaintiff in certiorari.
    Certiorari, 11 O. J. p. 212, n. 65.
    Decided January 10, 1928.
    Certiorari; from DeKalb superior court—Judge Hutcheson. May 28, 1927.
    Bcml L. Lindsay, for plaintiff in error.' T. L. Lanford, Morris Machs, contra.
   Luke, J.

Pickens sued Butler in a justice’s court of DeKalb county on a note, for a balance due of $31.71, and garnished Eord Motor Company. The defendant filed a plea setting up a counterclaim of $30, alleging that he had overpaid the plaintiff this amount. Upon conflicting evidence the justice, on August 16, 1924, rendered judgment in favor of the plaintiff, for $31.71. Counsel for the defendant paid the costs and appealed to a jury in the justice’s court. Before the appeal came on to be heard, Ford Motor Company, garnishee, paid the plaintiff’s claim in full. The case went to trial before a jury in the justice’s court, and the jury rendered a judgment for the defendant, for seventy-nine cents. Pickens, by certiorari, carried the case to the superior court. In answer to the writ of certiorari the trial magistrate said in part: “Plaintiff brought suit against defendant in July, 1924, on a note for $31.71, and garnished Ford Motor Company. Defendant filed a plea and claimed he had overpaid plaintiff and plaintiff owed defendant $30.00. (Here certain conflicting evidence is set out.) . . I gave judgment in favor of plaintiff and against defendant for $31.71. This was August 16, 1924. Col. Lindsey (attorney for Butler, the defendant) said, ‘We appeal to a jury,’ and the defendant came in time and paid the cost and filed his appeal to a jury. On the 20th of September Col. Lanford (attorney for plaintiff) wrote on the docket, 'Settled in full, paid by Ford Motor Co., T. L. Lanford, Atty. for plaintiff.’ This was done before court opened and in the absence of defendant. When, court opened and the case was called, defendant would not agree to that judgment. After hearing argument on demurrer and counterclaim I overruled them that it was too late. Then both sides agreed on a judgment, and this was written on the docket. The within cause coming on to be heard before me, and the plaintiff asking that said suit be dismissed for want of prosecution, the same is hereby dismissed for want of prosecution, this 20th day of September, 1924. Henry J. Matthews, N. P. ex. of. J. P. Then Col. Lanford denied that he agreed to this judgment. Then we went to trial before a jury.” The answer of the magistrate further showed that on the trial before a jury Butler admitted executing the note, but testified that under an agreement by Pickens to give him one cent per pound more than the market value of cotton, he had turned over to Pickens a 520-pound bale of cotton to be applied on the note which he had given Pickens, and that because of his little boy being burned to death about that time, he overlooked asking Pickens for the note. The evidence showed that the cotton graded a “9.” There was some evidence that grade 9 cotton at that time was worth fifteen cents a pound, and some evidence that it was worth nine cents a pound. The evidence shows that the plaintiff gave the defendant credit' on said note for ten cents a pound. This question of the market price of the cotton determines the correctness or incorrectness of the jury’s verdict from which the case was carried by certiorari to the superior court. The answer of the magistrate further showed that “Col. Lanford wanted to bring in Mr. Butler’s bankrupt proceedings. I ruled it out.” The judge of the superior court rendered the following judgment: “The within cause coming on for a hearing, after consideration of the same, it is considered, ordered, and adjudged by the court that the petition for certiorari be and the same is hereby sustained, the verdict and judgment of the inferior court is hereby reversed and set aside, and final judgment is hereby rendered in favor of the plaintiff in certiorari, R. P. Pickens, against the defendant in certiorari J. H. N. Butler. It is further ordered and adjudged by the court that the plaintiff in certiorari, R. P. Pickens, do have and recover of the defendant in certiorari, J. H. N. Butler, judgment for $8.65, accrued costs in the court below paid to obtain the certiorari, together with $........ costs of the superior court in this nase.” To this judgment Butler excepted.

The answer of the trial magistrate is apparently incomplete, especially as to what he ruled out in regard to Mr. Butler’s-bankruptcy proceedings, but neither party excepted to the answer. It is also inconsistent and contradictory, but no part of it was traversed. Since the answer of the trial magistrate, unexcepted to and untraversed, is controlling as to what occurred on the trial, the record in this case is somewhat confusing. The answer of the magistrate states unqualifiedly that “both sides agreed on a judgment” before the trial by a jury in the justice’s court. It shows also that such agreement was denied and objected to. But it conclusively shows that after such alleged agreement a trial by jury was had and both parties litigant participated therein. However, the record is sufficiently clear to evoke the following rulings, which are controlling:

Under the facts of this case the plaintiff’s counsel could not, by marking the case settled on the justice’s court docket, deprive the defendant of his right of appeal, and preclude the defendant’s recovery on a counterclaim previously filed. Civil Code (1910), § 4338; Calhoun v. Citizens Banking Co., 113 Ga. 621 (38 S. E. 977); Forbes Piano Co. v. Hixon, 8 Ga. App. 51 (68 S. E. 487).

The question whether the defendant received credit for the market price of his cotton was a vital issue of fact, on which there was conflicting evidence; and there being questions of fact involved, the judge of the superior court erred in rendering final judgment in favor of the .plaintiff in certiorari. Mitchell v. Western & Atlantic R. Co., 66 Ga. 242; Smith v. Bragg, 68 Ga. 650 (3), 652; Boroughs v. White, 69 Ga. 841, 844, and cit., Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 250); Porterfield v. Thompson, 4 Ga. App. 524 (61 S. E. 1055).

Judgment reversed.

Broyles, C. J., and Bloodworlh, J., concur.


text:
    18353, 18358.
    Thomas v. Macken; and vice versa.

    Appeal and Error, 4 C. J. p. 493, n.- 70 New; p. 649, n. 35.
    Wurkinen’s Compensation Acts, C. J. p. 108, n. 90.
   Broyles, C. J.

1. Where a bill of exceptions has been certified by the judge and filed in the office of the clerk of the trial court, and there is indorsed upon the bill an entry of service signed by the sheriff, showing that a copy of the' bill of exceptions was duly served on the opposite party to the cause, the sheriff has no authority thereafter, and after the time for service has expired, to amend his entry of service so as to show that the purported copy of the bill of exceptions so served .. was not in fact á true copy thereof. Nor has either the trial court or this court authority to pass an order authorizing such an amendment. Ga., Fla. & Ala. Ry. Co. v. Lasseter, 122 Ga. 679 (51 S. E. 15), and cit. The previous order of this court in this case, passed on December 13, 1927, authorizing and directing the sheriff of Hancock Ooilnty to amend his original entry of service, is vacated, and the amended entry made in compliance with such order can not be considered by this court. Under the above-stated rulings the motion of the defendant in error in the main bill of exceptions to dismiss that bill of exceptions is denied.

2. No settlement of a claim in a compensation ease is binding upon the claimant unless the settlement agreement has been filed with and approved by the industrial commission. Workmen’s compensation act, section 19 (Ga. L. 1920, p. 167). That section of the act is not necessarily in conflict with section 10 of the Civil Code of 1910, which provides that “a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest.” Under this ruling the trial court erred in this case in setting aside the award of the industrial commission upon the ground that the settlement agreement between the employer and the claimant (introduced in evidence), which had not been filed with or approved by the industrial commission, was a valid and binding settlement, and that the claimant was not entitled to any award.

Decided January 10, 1928.

Appeal; from Hancock superior court—Judge Park. May 38, 1937.

Wright & Davis, L. P. Mcurquardt, for plaintiff.

8. H. Wiley, Ca/rlyle Giles, for defendant.'

3. In the judgment setting aside the award the trial judge stated that “as said appeal, by this decision, has been sustained upon the ground above set forth, it is unnecessary for this court to pass upon the other grounds set forth in said appeal.” The defendant in error in the main bill of exceptions filed a cross-bill excepting to the failure of the judge to pass upon the other grounds of the appeal, to wit, grounds 1, 2, 3, 4, 5, 6(a), 6(b), 6(c), 6(d), and 6.(f). As the decision setting, aside the award on the ground stated was controlling in the case, the failure to pass upon the other grounds of the appeal was not error. However, as that decision has now been reversed by this court, the trial court, upon the next hearing of the case, will of course pass upon the other grounds of the appeal.

Judgment reversed on mam bill of exceptions) amd affirmed on the cross-bill.

Lulce and Bloodworth, JJ., concur.


text:
    18486.
    Kenimer, v. Henderson et al.

    Bills and Notes, 8 O. J. p. 1045, n. 90.
   Broyles, C. J.

W. C. Henderson and others sued Mrs. A. 0. Kenimer on a promissory note executed by her and payable to E. T. Kenimer or bearer. E. T. Kenimer transferred the note, and a security deed given by Mrs. Kenimer to secure it, to A. H. Henderson Sr., who transferred the note, after its maturity, to the plaintiffs. The defendant admitted the execution of the note for value received, but contended that A. H. Henderson Sr., before he transferred it to the plaintiffs, delivered the note and the deed back to her for a valuable consideration; that subsequently he borrowed from her the note and the security deed for the purpose of exhibiting them to the plaintiffs, and fraudulently retained them, refusing to return them to her as he had promised; that the plaintiffs obtained the note after its maturity and! knew that it had been delivered to her by A. H. Henderson Sr., for value received. The plaintiffs denied all her contentions, except that they had bought the note after its maturity; this they admitted. The plaintiffs further contended that before they bought the note, one of them inquired of the defendant whether it would be all right for him .to buy the note, and she replied in the affirmative. After evidence was introduced by both sides, the jury returned a verdict in favor of the plaintiffs for the full amount sued for. Reid:

Decided January 10, 1928.

Complaint; from White superior court—Judge I. H. Sutton. September 9, 1937.

George P. Whitman, G. H. Edwards, B. P. Gaillard Jr., for plaintiff 'in error.

Underwood & Underwood, A. II. Henderson, Wheeler & Kenyon, contra.

1. The evidence, although in acute conflict, authorized the verdict.

2. None of the special grounds of the motion for a new trial show reversible . error. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18492.
    Central of Georgia Railway Co. v. Andrews.
    Appeal and Error, 4 O. J. p. 872, n. 19.
    Carriers, 10 C. J. p. 780, n. 11.
    Decided January 10, 1928.
    Damages; from Macon superior court—Judge Littlejohn. August 31, 1937.
    Application for certiorari was made to the Supreme Court.
    For ejection from a train of the Central of Georgia Railway-Company Mrs. Andrews sued that company, alleging in brief that in Miami, Florida, she bought from the Bast Coast Line Railway Company a ticket for transportation over its line and from Jacksonville, Florida, to Albany, Georgia, over the Atlantic Coast Line, and over the Central of Georgia Railway Company from Albany to Montezuma, Georgia, her destination, and that the sale was made by virtue of an arrangement between these railroad companies by which each sold through tickets over the several roads, which made them each agents for the other in selling transportation and in their dealings with the public; that the, ticket-selling agent at Miami advised her to take a train at Jacksonville, known as the Dixie Flyer, a tourist through train, and that tit would put her off at Montezuma; that she did so, and with her husband and' her four small children, one of them about two weeks old, was in transit on that train on the Atlantic Coast Lino outside of Albany, when the train conductor advised her to leave the train at Albany and take a local train to destination, telling her that the Dixie Flyer did not stop at Montezuma; that she refused to do this; that on the Central of Georgia Railway out of Albany she was advised, for the same reason, to leave the train at Americus, the nearest scheduled stop for Montezuma; that the conductor who thus advised her talked loudly, excited her, humiliated her, and made her nervous, and ordered her off the train at Oglethorpe, Georgia (two miles from destination), where the train was forced to stop at the A., B. & A. crossing, and then put her off in the dark, forcing her to jump from the train, and that in consequence she suffered injuries to her womb and in other particulars stated. She sued for damages in the sum of $20,000 for wrongful ejection and for failure and refusal to carry her to her destination as required by the contract of transportation.
   Broyles, C. J.

1. The petition as finally amended was not subject to any ground of the demurrer, and the court properly so held.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial show reversible error. This court can not hold, under all the facts of the case, that the amount of the verdict ($7500) is so excessive as to justify the inference of gross mistake or undue bias of the jury. The refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Blood/worih, JJ., concur. ■

The defendant demurred to the petition generally and specially. In its answer it denied allegations of the petition, and alleged that the plaintiff was a trespasser on a through train, with notice that it was not scheduled to stop at Montezuma; and that if she received the alleged injuries, they were due to her own fault and could have been avoided by 'the exercise of reasonable care on her own part.

Felton & Felton, H. A. Wilkinson, for plaintiff in error.

J. A. Hixon, li. L. Greer, John M. Gi'eer, contra.


author: Bkotles, C. J.

text:
    18572.
    Rogers v. The State.
    Criminal Law, 16 C. J. p. 1189, n. 70.
   Bkotles, C. J.

“Declarations oí a witness after trial, at variance with his sworn testimony, even when made under oath and explicity assorting that his testimony on the trial was false, do not constitute a cause for a new trial.” Smarr v. Kerlin, 21 Ga. App. 813 (2) (95 S. E. 306), and cit. A fortiori, such declarations are not cause for a new trial on an extraordinary motion therefor, such motions not being favored by the courts. Under the above-stated rulings and the facts of the

Decided January 10, 1928.

Arson; from White superior court—Judge I. H. Sutton. September 24, 1927.

W. N. Oliver, for plaintiff in- error.

Robert McMillan, solicitor-general, contra.

instant case, the overruling of the extraordinary motion for a new trial was-not error. Judgment affirmed.

Luke and Bloodworth, JJ., eonour.


author: Bi.oodwortii, J.

text:
    18574.
    Edenfield v. The State.
    Criminal Law, 16 C. J. p. 1124, n. 87; p. 1147, n. 58; p. 1217, n. 44; p. 1219, n. 72.
    Decided January 10, 1928.
   Bi.oodwortii, J.

1. Even if it be admitted that the court erred in permitting a witness for the' defendant on eross-eXamination to swear, over objection: “I plead guilty to possessing liquor at the last term of court,” as tending to impeach the witness, a new trial should not be granted the defendant because of this evidence, as another witness swore to the same fact and it went to the jury without objection.

2. A ground of a motion for a new trial which states that certain evidence was admitted over “the timely objection of counsel,” and does not show what the objection then urged was, is not complete. It must affirmatively appear what objection was then and there urged, and that the court passed upon this specific objection. It is not sufficient to say that an objection was urged, and- later, in the motion, give reasons why the evidence should not have been admitted. Grace v. McKinney, 112 Ga. 425 (2) (37 S. E. 737); Butts v. State, 118 Ga. 750 (45 S. E. 593); Georgia Railroad &c. Co. v. Lloyd, 129 Ga. 650 (2), 651 (59 S. E. 801). See, in this connection, Duke v. Ayers, 163 Ga. 444, 452 (136 S. E. 410).

3. “Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete within itself. When, for a proper understanding of it, it is necessary to refer to another special ground of the motion, or to the record, it will not be considered.” Jennings v. State, 22 Ga. App. 550 (96 S. E. 397).

4. “Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a -motion to declare a mistrial on that ground has been made and refused.” Harrison v. State, 20 Ga. App. 157 (6) (92 S. E. 970). See Perdue v. State, 135 Ga. 277 (69 S. E. 184).

5. The rulings in the foregoing cases dispose of special grounds 5, 6, and 7 of the motion for a new trial adversely to the contentions of the plaintiff in error.

6. We can not say that there is no evidence to support the verdict.

Judgment affirmed.

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

Making intoxicating liquor; from Emanuel superior court— Judge Camp presiding. October 1, 1927.

1. W. Rountree, Alfred Herrington Jr., for plaintiff in error.

A. 3. Bradley, solicitor-general, contra.


text:
    18575.
    McDonough v. Atlanta Barbers Supply Company.
    Negligence, 29 C. J. p. 565, n. 75.
    Decided January 10, 1928.
    Action for damages; from city court of Atlanta—Judge Dorsey. September 22, 1927.
    Mrs. Vannie McDonough sued Atlanta Barbers Supply Company for damages because of alleged injury to her-“beauty parlor” business from the operation of a “permanent-wave machine” purchased by her from the defendant. Her petition alleged, that she purchased the machine to be used in giving permanent waves to customers of her beauty parlor, and, after the defendant installed it, she asked the defendant’s agent or representative who installed it if the machine was all right and ready for use, and told him that she had a customer coming about two hours later; he told her that the machine was ready and that there was nothing to do but to get to work, and she asked him if the current and voltage were right and sufficient to do the work; he told her it was O K; so she went to work using the machine as he told her to do. She continued for at least fifteen or twenty days, when, to her surprise, she discovered that every wave she had given had come out, and all the customers commenced to come back to her for their money, which she had to refund or else do the work over at great cost to her. She was just starting up business for herself and during this time did work for representative ladies in each section of the city of Atlanta and for ladies in small towns in the country surrounding Atlanta, and was getting all the work she could do, and was building up a business which had in store great things for her in the future, when suddenly the news- scattered that her waves were not staying in, and her business dropped off. in a few days to almost nothing. She took the matter up with the defendant at different times with the view of finding what the trouble was, but the defendant did not take any interest in the matter and would not come or send a representative to her place of business to make an investigation. It developed that the cause of the waves not staying in was that the current at the machine was only about 100 volts, when it should have been 110 volts, and investigation disclosed that there were 110 volts at the switch in the house in which the machine was operated. The defendant therefore was guilty of gross negligence in telling plaintiff, who knew nothing about it herself, that the machine was all right and ready for use, when he knew or by the exercise of ordinary care could have ascertained that the voltage at the machine was only 100 volts and insufficient. The defendant was negligent in allowing its representative who installed the machine to tell plaintiff that the current was all right and sufficient when in fact it was not. Plaintiff relied on the representations made by the defendant’s agent, believing them to be true, and went ahead with her work, giving permanent waves to all her customers that came in. All the waves would come out in just a day or two, and she thereby sustained damage to her reputation to an extent that is almost not computable in money, besides having to refund large sums in cash to the customers that she worked for during those days. The defendant was negligent in not making a test of the machine to determine whether there was sufficient voltage and heat to give the desired effect; it was guilty of gross negligence in failing to do so, and is liable to her for whatever her damage is. Plaintiff is an expert in her line of business, and enjoyed an enviable reputation, doing her work in an efficient and satisfactory manner before her experience with the defendant and this machine. It developed in the investigation as to the cause of her customers’ waves not staying in that the wiring from the switch to the machine in said house was not large enough to carry 110 volts, and she had another wire put in at her own expense, which cost her about $30, and “as soon as she did that her waves are all staying in beautifully.” These representative ladies in these various communities were going to send her from one to possibly a dozen customers each, provided their waves stayed in; their waves did not stay in, and therefore she lost all these prospective customers that she would have got if the waves had stayed in. Plaintiff was free from all fault and negligence in the premises and could not by ordinary care and diligence have avoided the result of the defendant’s negligence. Her damages are laid at $10,000.
   Broyles, C. J.

The petition failed to set Out a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

Luke and' Bloochvorth, JJ., concur.

The demurrer was on the ground that no cause of action was ' set out, and that the damages were speculative, imaginary, and too remote for recovery.

John W. Morrow, for plaintiff. J. A. Miller, for defendant.


text:
    18582.
    Newton v. City of Moultrie.
    Death, 17 C. J. p. 1289, n. 92.
    Municipal Corporations, 43 C. J. p. 1184, n. 26; p. 1194, n. 30 New; p. 1229, n. 42.
   Broyles, C. J.

1. Where a father sues for damages for the homicide of his son, and the petition fails to allege that the mother of the deceased son was dead at the time of the homicide, no cause of action is shown in the father, and the petition should be dismissed on demurrer. Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264), and cit.

2. “No person, firm or corporation, having a claim for money damages against any municipal corporation of this State on account of injuries to person or property,- shall bring any suit at law or equity against said municipal corporation for the same, without first presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place and extent of such injury, as near as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against said' municipality until the cause of action therein has been first presented to said governing authority for adjustment.”’ (Italics ours.) Civil Code (1910), § 910.

3. In a claim for money damages against a municipal corporation on account of injuries to person or property, the petition must affirmatively allege a compliance with the provisions of the code -section quoted above, and unless it does so, it should be dismissed on demurrer. Saunders v. City of Fitzgerald, 113 Ga. 619 (38 S. E. 978).

4. This was a suit for damages, brought by a father against the City of Moultrie, for the homicide of his son. The petition failed to allege that the mother of the deceased son was dead at the time of the homicide. The written claim presented to the governing authorities of the city, as required by section 910 of the Civil Code of 1910, also failed to make that allegation. Subsequently the plaintiff amended his petition by alleging that the mother of the deceased son was dead at the time of the homicide. Meld, that the original petition set forth no cause of action, and the cause of action set forth in the amended petition was not presented to the governing authorities of the City of Moultrie for adjustment before the suit was brought. It follows that the petition was properly dismissed on demurrer.

Decided January 10, 1928.

Action for damages; from Colquitt superior court—Judge W. E. Thomas. October 6, 1937.

Dowling & DeLoache, Hill & McElvey, for plaintiff.

Hoyt H. Whelchel, for defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18586.
    Jones v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; 17 C. J. p. 212, n. 18.
    Decided January 10, 1928.
    Manslaughter; from Fulton superior court—Judge Moore. October 8, 1937.

      Louis H. Foster, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraao, contra.

   Broyles, C. J.

1. “To ascertain whether a particular part of a charge, excepted to as expressing an opinion on the facts, is fairly liable to such exception, the whole charge, written and in the record, may be considered.” Nutzel v. State, 60 Ga. 264. Under this ruling and the facts of the instant case, the single ground of the amendment to the motion for a new trial shows no cause for a reversal of the judgment below.

2. The general grounds of the motion for a new trial are not argued .or referred to in the brief of counsel for the plaintiff in error, and are treated as abandoned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18599.
    Lee v. The State.
    Criminal Law, 16 C. J. p. 533, n. 8; p. 1009, n. 7; p. 1013, n. 50; p. 1056, n. 20.
   Broyles, C. J.

1. The evidence relied on by the State to convict the defendant of the offense charged was partly direct and partly circumstantial. Therefore it was not error for the court to instruct the jury upon the law of circumstantial evidence. In the absence of a proper written request therefor, the failure of the court to define to the jury “direct and positive testimony” and “circumstantial testimony” was not harmful error. O’Berry v. State, 153 Ga. 880 (5) (113 S. E. 203).

2. The court properly instructed the jury that “when alibi is relied on as a defense, the burden of proof is on the accused to prove the alleged alibi to the reasonable satisfaction of the jury.” Collier v. State, 154 Ga. 68 (5, 6), 79 (113 S. E. 213), and cit.; Jones v. State, 130 Ga. 274 (8) (60 S. E. 840); Cochran v. State, 113 Ga. 726 (39 S. E. 332); Pyles v. State, 12 Ga. App. 667 (78 S. E. 144).

Decided January 10, 1928.

Assault with intent to murder; from Treutlen superior court—• Judge Graham. October 5, 1927.

W. A. Dumpier, Saffold ■& Sharpe, H. E. Coates, for plaintiff in error. -

M. H. Boyer, solicitor-general, J. S. Adams, D. B. Jackson, contra.

3. The court instructed the jury as follows: “The credibility of all witnesses is for the jury, and it is for the jury to find what has or what has not been proven in the case.” This charge was not harmful error because of not being in the exact language of the statute (Penal Code of 1910, § 1054), which is as follows: “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Nor was it error for the court to fail to charge, in this connection, section 1052 of the Penal Code (relative to impediment of witnesses by contradictory statements), in the absence of a proper written request so to charge. The charge given upon the credibility of witnesses did not open up the subject of impeachment of witnesses; and it is well-settled by numerous and repeated decisions of this court and of the Supreme Court that the trial court is not obligated to charge upon impeachment of witnesses, in the absence of a timely and appropriate written request for such instructions.

4. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18607.
    Broom v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided January 10, 1928.
    Larceny from house; from Whitfield superior court—Judge Pittman. October 31, 1927.

      D. W. Mitchell, for plaintiff .in error.

      John C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

None of the special grounds of the motion for a new trial shows any legal reason why the case should be tried again. There is some evidence which authorized the finding of the jury, the verdict has the approval of the trial judge, and no error was committed when the motion for a new trial was overruled.

Judgment affirmed.

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


text:
    18608.
    Cunningham v. City of Atlanta.
    Certiorari, 11 C. J. p. 210, n. 46.
    Decided January 10, 1928.
    Certiorari; from Fulton superior court—Judge Howard. October 11, 1927.

      G. G-. Battle, for plaintiff in error.

      J. L. Mayson, G. S. Winn, contra.
   Broyles, C. J.

“In a certiorari ease the answer of the trial judge is the only source from which knowledge óf the facts of the case and the rulings made therein can be derived. Buckner v. State, 115 Ga. 238 (41 S. E. 583). And where, in such a case, the trial judge in his answer states that he can not remember the facts of the case, or what occurred upon the trial, it is useless to sustain exceptions to the answer and to require him to respond more fully. Where such an answer is filed, the judge of the superior court, upon the hearing of the certiorari, can do nothing but overrule the same.” Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416) , and cit.; Hicks v. Lindsey, 22 Ga. App. 674 (97 S. E. 101); Macris v. Tsipourses, 35 Ga. App. 671 (5) (134 S. E. 621). Under the ruling just stated, the court in, the instant case did not err in striking the exceptions to the answer of the trial judge or in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18331, 18332.
    HUDSON v. CARTON.
    1. “Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by same evidence in the record, is not cause for a new trial.”
    2. The court did not err in the instructions set out in grounds 7 and 8 of the motion for a new trial.
    3. “An omission to instruct the jury on the mathematical process of reducing a given sum payable in the future to its present worth, in the absence of an appropriate request, is not ground for a new trial.”
    4. The statute limiting the speed of motor-vehicles approaching a sharp curve to not exceeding 10 miles per hour contains no exception in favor of police officers.
    Motor Vehicles, 42 O. J. p. 931, n. 31.
    New Trial, 29 Oye. p. 791, n. 15.
    Decided January 11, 1927.
    Damages; from Fulton superior court—Judge Pomeroy. June 18, 1927.

      Application for certiorari was made to the Supreme Court.

      T. J. Lewis, for plaintiff in error.
    (7. Seals AiTcen, J. Ralph McClelland, contra.
   Bloodworth, J.

In McLean v. Mann, 148 Ga. 114 (2) (95 S. E. 985), it was held: “Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (56 S. E. 995); Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860); Hewett v. Lamb, 130 Ga. 709 (2) (61 S. E. 716, 14 Ann. Cas. 800).” This ruling disposes of-special grounds 4, 5, and 6 of the motion for a new trial. The contentions made in these grounds were not made in the pleadings and rested only on evidence introduced on the trial.

The court did not err in charging that “upon approaching any sharp curve the operator of a motor-vehicle or motorcycle shall at airtimes have said vehicle under immediate control, and shall hot operate said vehicle at a greater rate of speed than 10 miles per hour.” This charge is alleged to be error “because' the law with respect to the speed of an automobile in approaching a sharp curve is not applicable to city streets.” No municipal ordinance was introduced in evidence. Section 2 of the act of 1921 (Ga. L. 1921, p. 256) is sufficient authority for the charge given. We are not unmindful that the-Supreme Court in Shannon v. Martin, 164 Ga. 872 (139 S. E. 671), held that the words “intersecting highways,” as used in this paragraph, do not apply to intereseeting streets, but the reasoning by which the Supreme Court reached that conclusion does not apply to the words “sharp curve,” and that decision has no bearing on this ground of the motion. Nor did the court err in charging: “The court instructs you that the State law that I have read to you is applicable to police officers as well as to -civilians, and that there is no exemption or exception applying to any police officer under the provisions of the State law.” The law involved in this case has no exceptions in favor of police officers. In charging the jury the judge must charge the law as it is written. Moreover, this court could refuse to consider these grounds, as they are both incomplete, and each requires reference to other parts of the record to ascertain what “law” is referred to therein.

The 2d headnote in Louisville & Nashville Railroad Co. v. Trout, 141 Ga. 121 (80 S. E. 622), is as follows: “An omission to instruct the jury on the mathematical process of reducing a given sum payable in the future to its present worth, in the absence of an appropriate request, is not ground for a new trial.” Under this ruling there is no merit in the contention that the court failed to give any rule or method by which the jury could reduce any recovery found to its present cash value. Nor is this charge error for any other reason assigned.

Special grounds 10, 11, and 12 are based upon the proposition that “the violation of a speed ordinance of a city can not be charged against a police officer in pursuit of an escaping violator of the law,” that it is his duty to arrest all. who violate the law, and in the performance of this duty he has “many privileges not accorded to the private individual,” and that when in pursuit of a violator of an ordinance of the city he can not be charged with a violation of the State law or an ordinance of the city. No ordinance of the city of Atlanta is referred to that supports thi's contention, and there is no exception or provision in the State law that would support it.

The court did not err in overruling the motion for a new trial.

Judgments affirmed.

Broyles, G.J., and Lulce, J., concur.


author: Bkovles, O. J.

text:
    18501.
    Atlantic Coast Line Railroad Co. v. Hogrefe.
    Carriers, 10 C. J. p. 348, n. 75; p. 390, n. 15.
   Bkovles, O. J.

1. Where a consignee of freight refuses to accept goods on account of damage done to them while in transit by a common carrier, and the goods are subsequently thrown back on the hands of the consignor, the consignor has the right to bring action against the carrier for such damage. Savannah, Florida & Western Ry. Co. v. Commercial Guano Co., 103 Ga. 590 (1), 593 (30 S. E. 555). Under this ruling the consignor in the instant case had the right to bring the suit against the defendant carrier, and the demurrer to the petition was properly overruled.

2. “Where in a suit by a shipper against a common carrier for loss or damage to goods in transit it appears from the evidence that some of the goods were not totally damaged or destroyed, but were of some value, and the evidence fails to furnish sufficient data from which a jury might infer the value of the damaged articles, the verdict [covering damages for all articles in the shipment whether totally or partially destroyed] is without evidence to support it.” Southern Express Co. v. Bass, 24 Ga. App. 742 (102 S. E. 168). Applying the principle of this ruling to the facts of the instant case, it is obvious that the verdict in favor of the plaintiff shipper, for the full value of all the articles in the shipment (14 stationary batteries) at the time they were delivered to the carrier for shipment, was not authorized by the evidence, and that the court erred in refusing to grant a new trial.

Decided January 11, 1928.

Breach of contract; from city court of Richmond county— Judge Black. August 30, 1927.

W. E. Miller, for plaintiff in error. W. Inman Gurry, contra.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    18577.
    PHILLIPS et. al. v. PLAINFIELD SCHOOL DISTRICT et al.
    The bill of exceptions is dismissed because it was retained an unreasonable time by counsel for the plaintiff in error after the trial judge had returned it for correction.
    Appeal and Error, 4 C. J. p. 452, n. 25 New.
    Decided January 11, 1928
    Validation of school bonds; from Dodge superior court—Judge Graham. May 30, 1927.

      A. R. Ross, W. A. Wooten, for plaintiffs in error.

      M. II. Boyer, solicitor-general, 0. J. Franklin, contra.
   Bloodworth, J.

The trial judge certified the bill of exceptions in the usual manner, and then added: “I do further certify that this bill of exceptions was first tendered to me on the 20th day of June, 1927. On the same day I returned the bill to counsel for plaintiff in error with request that he submit it to opposing counsel for approval, which I am informed he did, and on or about .July 23, 1927, counsel for plaintiff in error returned me the bill by mail. The bill of exceptions was incorrect, but it was impractical for me to consider it for suggested corrections until August 25, 1927, when I made certain suggested corrections, and then, on August 26, 1927, sent the bill of exceptions, with the suggested corrections,, by mail to counsel for plaintiff in error. ■ Counsel for plaintiff in error, W. A. Wooten, stated to me that he did not receive the bill of exceptions until August 29th, 1927, when he said that he did receive the bill of exceptions. He made the corrections and returned me the bill in person again on October 3, 1927. Then a few minor corrections were necessary which were made. And I do now sign and certify the bill of exceptions on this the 6th day of October, 1927.” Basing his motion on the facts stated in the foregoing certificate, counsel for the defendant in error filed a motion to dismiss the writ of error on the ground that the bill of exceptions was retained an unreasonable time by counsel for the plaintiff in error .after having been returned to them for correction by the trial judge. In the motion to dismiss it is alleged by counsel for the defendant in error that “counsel for plaintiff in error, in the first instance, after the judge had returned to him the bill of exceptions for the purpose of submitting same to opposing counsel for approval, kept said bill of exceptions from June 20, 1927, to July 23, 1927, which makes a period of 33 days. In the second 'instance, after the judge returned said bill of exceptions to counsel for plaintiff in error for purpose of correction, he acknowledged receiving same on August 29, 1927, and returned it to the judge in person on October 3, 1927, holding it a period of 34 days.” The record fails to show that the delay in certifying the bill of exceptions resulted from “providential cause or imperative necessity.” Under the rulings in Atkins v. Winter, 121 Ga. 75 (6) (48 S. E. 717), Pappa v. Pope, 25 Ga. App. 212, 216 (103 S. E. 99); Walker v. Wood, 119 Ga, 624 (46 S. E. 869), Meador v. Callicott, 129 Ga. 631 (60 S. E. 863), and Mathis v. Prigmore, 148 Ga. 497 (96 S. E. 1038), and cit., we must hold that the delay in certifying the bill of exceptions was unreasonable, and that the motion must be sustained, and the writ of error Dismissed.

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


author: Bkoxlbs, O. J.

text:
    18578.
    Alabama Great Southern Railroad Co. v. Robertson.
    Appeal and Error, 4 O. J. p. 1031, n. 31.
   Bkoxlbs, O. J.

This was a suit for damages for the killing of two hound dogs. During the trial counsel for the defendant admitted that one of the dogs was killed by the defendant, but contended that it was an unavoidable accident. He stated as to the other dog that he did not know whether the defendant killed it, but that if it did so, that killing also was an unavoidable accident. The judge in his charge instructed the jury as follows: “The defendant sets up and denies the killing of one of the dogs—admits the killing of one, but claims that it was an accident and that it is not liable for any damages to this plaintiff for the killing of either of the dogs in question.” Held, that the charge was error and prejudicial to the defendant, and another hearing of the case is required..

Decided January 11, 1928.

Appeal; from Dade superior court—Judge Pittman. October 17, 1927.

McClure, Hale & McClure, Maddox, Maddox & Mitchell, for plaintiff in error.

J. C. Townsend, contra.

Judgment reversed.

Lulte and Bloodworth, JJ., concur.


text:
    18588.
    Houze v. Houser.
    Sales, 35 Oye. p. 586, n. 84.
   Broyles, C. J.

1. Where a seller and a purchaser enter into a written contract whereby the vendor agrees to sell and the vendee contracts to buy certain peaches which the contract describes as all of the seller’s “crop of peaches for this year, consisting of the peaches from about 2500 trees each of Hiley Belle and Elbertas, about 150 trees of Ga. Belles, at the price of $0.60 per basket, delivered to the cannery of W. L. Houser [the purchaser],.in Eort Valley;” and where the contract provides further that the seller agrees “to deliver all peaches when fully matured and not soft, peaches must average normal sizes for the varieties free from worms, rot, hail pecks or other defects that will cause them to be'unfit for peeling with lye; peaches are to be paid for any time after delivery; ” and where several thousands of baskets of the peaches were delivered and paid for, and subsequently the purchaser, without any good reason, declined to accept or to pay for several hundreds of other baskets of peaches tendered by the seller in proper compliance with the contract, such declination by the purchaser amounted to a breach of the contract, and the seller was not obligated to deliver the remainder of the peaches to the place designated in the contract or to actually tender them to the purchaser. His right of action against the purchaser for a breach of the contract was complete and lie was entitled to recover whatever monetary damages he had sustained by such breach. See, in this connection, Standard Growers Exchange v. Harris, 159 Ga. 173 (124 S. E. 884).

2. Under the above-stated ruling and the undisputed evidence adduced upon the trial of the instant case, a verdict in favor of the plaintiff for the full amount sued for was demanded, and the court erred in directing a verdict in his favor for a less amount.

Decided January 11, 1928.

Complaint; from Peach superior court—Judge Malcolm D. Jones. October 21, 1927.

S. M. Mathews, L. L. Brown Jr., N. E. English, for plaintiff.

G. L. Shepard, for defendant.

Judgment reversed.

Luhe and Bloodworlh, JJ., concur.