text:
    16260.
    GAINOUS v. GEORGIA CASUALTY COMPANY et al.

    Where a policy of industrial insurance contained the provision: “No condition or provision of this-policy shall be waived or altered except endorsement attached hereto signed by the President, a Vice President, Secretary, or Assistant Secretary of the Company, or by a Registrar of the Company when specially authorized so to do by a printed endorsement attached hereto; nor shall notice to any agent, nor shall knowledge possessed by any agent, or by any other person, be held to effect a waiver or change in any part of this contract,” a general agent of the insurer had no authority to enter into a subsequent agreement amending the terms of the. policy so that it would provide insurance and protection to others not originally included within its provisions.
    Decided November 18, 1925.
    Appeal; from Decatur superior court—Judge Custer. January 7, 1925.
    Mrs. Leona Gainous was awarded compensation under the workmen’s compensation law by the industrial commission for the death of her husband, James H. Gainous. She excepts to a judgment of the superior court of Decatur county sustaining an appeal by the insurance carrier and setting aside the award. The findings of the industrial commission were stated as follows: “August 30, 1923, James Harmon Gainous was killed while loading logs on a truck. At the time of the accident he was receiving $11 a week. The accident arose out of and in course of his employment. These ■facts were agreed to at a hearing by attorneys for claimant and the insurance carrier. Other facts brought out by evidence are that Mr. Gainous was employed by Mr. R. E. Wells, who was cutting and delivering timber for the Lovelace-Young Lumber Company, of Faceville, Decatur county, Georgia. Mr. Wells had a contract with the Lovelace-Young Lumber Company to cut and deliver timber owned by the company, for a certain amount per thousand feet. He employed or discharged his own help, and got the money to pay wages from the Lovelace-Young Lumber Company, the amount being charged to his personal account. The Lovelace-Young Lumber Company carried its compensation risk with the Georgia Casualty Company. Mr. Wells was asked if he cared to insure his risk and declined. The agent of the insurance company told Mr. Lovelace that if he would collect the necessary premium on the wages of the men employed by Mr. Wells, they would be protected under the policy of the Lovelace-Young Lumber Company. Mr. Gainous and Mr. Wells were of the belief that he was protected. Mr. Lovelace was to collect the premium and make returns to the insurance carrier about every three months, and settlements would be made. Mr. Lovelace did not remember whether he made any remittance for Mr. Wells to the insurance carrier before the death of Mr. Gainous. It was his belief that he was to collect on wages of the employees of Mr. Wells, and they would be protected under, the policy of the lumber company. Mrs. Gainous is claiming dependency and compensation for herself and infant child, Grady. There is no denial in this case of the dependency of Mrs. Gainous and her son, Grady. The contest comes over whether or not the employees working with Mr. Wells were covered by the compensation insurance policy carried by the Lovelace-Young Lumber Company. The facts are, that Mr. Chandler, an agent of the Georgia Casualty Company, made a proposition to take all the people connected with the Lovelace-Young Lumber Company under the policy of the company if they desired to come under and would pay the necessary premium. Mr. Wells declined to come under and insure his risks. Mr. Chandler then told Mr. Lovelace that if he would at any time collect the premium on the wages of the men, they would be protected under his policy. Later Mr. Wells began the regular payment of these premiums, which the Lovelace-Young Lumber Company collected and still has in its possession. Some time after the payments were begun Mr. Gainous was killed while in the discharge of his duty, and the Georgia Casualty Company refused to pay compensation to the dependents, ‘ claiming that the employees of Mr. Wells were not covered under the policy written the Lovelace-Young Lumber Company.”
    The policy of insurance was signed by Chandler as general agent of the insurance carrier, and contained, among others, the following provision: “No condition or provision of this policy shall be waived or altered except endorsement attached hereto signed by the president, a vice-president, secretary, or assistant secretary of the company, or by a registrar of the company when specially authorized so to do by a printed endorsement attached hereto. Nor shall notice to any agent, nor shall knowledge possessed by any agent, or by any other person, be held to effect a waiver or change in any part of this contract.” As shown by the commission’s findings, the policy as written insured only Lovelace-Young Lumber Company and its employees. . The record shows that it was about a year after the making of the contract that the agent agreed with Mr. Lovelace that the policy would be considered as extending to Wells and his employees if Wells would pay the necessary premiums on the wages of his employees. It does not appear that Chandler occupied any relation to the company other than that of general agent, nor was any endorsement attached to the policy embodying the new agreement. It further appears that Wells regularly had in his service less than ten employees, and the record is silent as to whether the deceased employee had ever elected to be bound by the compensation act.

      Drake & Kirbo, for plaintiff.

      Brock, Sparks & Bussell, Harrell & Custer, for defendants.
   Bell, J.

(After stating the foregoing facts.) There are per-, haps several reasons why the judgment sustaining the appeal and setting aside the award should be affirmed. Whether there be several'or not, we are satisfied there is one; and that is enough. The policy was originally for the benefit only of Lovelace-Toung Lumber Company and its employees. By the express provisions thereof Chandler had no authority to bind his principal by the subsequent agreement with Lovelace and Wells, to the effect that the policy would be enlarged to include Wells and his employees if Lovelace should collect from Wells the necessary premiums upon the wages of Wells’ employees. This could have been done, if at all, only in the manner pointed out in the clause of the policy quoted above. All parties who might be concerned had notice of the limitations upon Chandler’s authority as thus contained in the policy; and a principal may qualify the authority even of a general agent, and will not be bound by the acts of such agent beyond the scope of his authority where the persons dealing with him have notice of the limitations thereon. Hutson v. Prudential Ins. Co., 122 Ga. 847 (2) (50 S. E. 1000); Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117 (3) (54 S. E. 66, 5 Ann. Cas 221); Bank of Commerce v. New York Life Ins. Co., 125 Ga. 552 (3) (54 S. E. 643); Rome Industrial Ins. Co. v. Eidson, 138 Ga. 592 (1, 2) (75 S. E. 657); Reese v. Fidelity Mutual Life Association, 111 Ga. 482, 490 (36 S. E. 637). The limitation upon the agent’s authority is, if possible, the more certainly binding in the instant case, because the transaction which the claimant relied on was subsequent to the execution of the policy. Johnson v. Ætna Ins. Co., 123 Ga. 404 (2) (51 S. E. 339, 107 Am. St. Rep. 92). There is no evidence that any of the premiums paid by Wells were ever received by the insurance carrier, nor other evidence to show a ratification of Chandler’s unauthorized agreement. The conclusion, therefore, is inevitable that the policy was never effectually amended so as to provide insurance and protection to Wells and his employees. It follows from what has been said that the judge of the superior court did not err in sustaining the appeal.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16272.
    MASSACHUSETTS BONDING & INSURANCE CO. v. HOFFMAN et al., trustees, for use, etc.
    1. In an action by the trustees of a school district “for the use” of a materialman, who furnished material used in the construction of a school building, against a bonding company as surety upon the bond given by the contractor, where the bond contained no provision that it was given “for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery or materials under or for the purpose of such contract,” nor any similar clause, but specifically provided that “no right of action shall accrue for the use or benefit of any other than the obligee,” the trustees can have no recovery on the bond merely “for the use” of the materialman.
    2. The trustees having sought a recovery solely because the contractor had failed to pay the materialman, and it not appearing that they could be subjected to any damage or liability because of that fact, and no right or benefit having accrued under the bond to the material-man, the petition failed to set forth any cause of action whatever, and the court erred in overruling the general demurrer thereto.
    Decided November 18, 1925.
    Complaint on bond; from Decatur superior court—Judge Custer. January 26, 1925.

      T. 8. Hawes, Jones, Hvins & Moore, for plaintiff in error.

      John B. Wilson, contra.
   Bell, J.

S. 0. Croom, a contractor, entered into a written contract with the trustees of the Faceville Consolidated School District for the erection of 'a school building at Faceville, Georgia, and furnished Massachusetts Bonding & Insurance Company as surety for the faithful performance of his contract. The contractor abandoned his work without completing it and without payment of the materialmen’s bills. Among the unpaid bills was that of Callahan Grocery Company for material actually used in the construction of the building. The trustees brought suit against the bonding company for the use of Callahan Grocery Company. The bonding company’s general demurrer to the petition was overruled, and it excepted. The agreement between the contractor and the trustees for the erection of the building stipulated that the contractor would provide all materials and perform all work as prescribed in the specifications, and would complete, the building by a certain date named, for which he was to receive a stated price to be .paid in installments as specified in the agreement. The condition of the bond was that the principal should “indemnify the obligee against any loss or damage directly arising by reason of the failure of the 'principal to faithfully perform his contract.” The bond failed to provide’that it was given “for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery or materials under or for the purpose of such contract,” in accordance with the form prescribed by the act of August 19, 1916 (Ga. L. 1916, p. 94, Park’s Code, § 389 et seq.): On the other hand, the bond stipulated that “no right of action shall accrue for the use or benefit of any other than the obligee.” The bond is the identical instrument referred to in the Hannah case hereafter cited.

Under the several recent decisions having reference to this act of 1916, and especially in view of the clause in the bond, that no right of action should accrue for the use or benefit of any other than the obligee, we are of the opinion that the liability of the surety in this case can not be extended so as to include the claims of laborers, materialmen, etc. American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617); s. c. 31 Ga. App. 603 (121 S. E. 422); Hannah v. Lovelace-Young Lumber Co., 159 Ga. 856 (127 S. E. 225); United Supply Co. v. United States Fidelity & Guaranty Co., 32 Ga. App. 472 (123 S. E. 907). Callahan Grocery Company, the materialman, having no right or benefit whatever under the bond, suit could not be maintained thereon in the name of another merely for its use. There is nothing in the Supreme Court’s decision in the Hannah case, supra, which would authorize a suit on the bond'by the obligee, for the use of the materialman, where the bond not only fails to conform to the requirements of the act of 1916, but expressly stipulates that no right of action shall accrue for the use or benefit of any other than the obligee. It follows from the above that no right of action is shown merely upon the claim of the materialman. In the absence of some right in themselves, the trustee can not maintain the action.

We agree with the contention of the counsel for defendants in error that as a general proposition, if the trustees showed a right of action in themselves, the petition would be good notwithstanding the declaration therein that the suit was for the use of another. In such a case it would ordinarily be of no concern to the defendant what might become of the money after the plaintiffs recovered it. Norcross Butter & Cheese Mfg. Co. v. Summerour, 114 Ga. 156 (3) (39 S. E. 870). Whether this rule would be applicable in view of the stipulation in the particular bond that no right of action would accrue thereunder for the use or benefit of any other than the obligee, it is unnecessary to decide. Assuming that the rule would have application if the other facts so warrant, let us examine the other facts to determine if they disclose a right of action even in the trustees. Undoubtedly the petition shows a breach of the bond in the failure to complete the building, but, does it show damage ? ■ It makes no claim to general or nominal damages, and seeks to recover only because of the indebtedness due by the contractor to the materialman. Assuming that the contract for the building and the bond sued on were broad enough in their terms to render it a breach of the bond as to the trustees for the contractor to fail to pay the materialman, such breach would not damage the trustees unless because of it they were required to pay the materialman themselves. The petition fails to show, and, under the decision in the Hannah case, supra, could not show, the existence of any lien in favor of the material-man upon the property improved. See, in this connection, McGarry v. Seiz, 129 Ga. 296 (2) (58 S. E. 856). The act of 1916 provides that if the corporation or body for which work is done under a contract shall fail to take bond in the manner and "form as therein prescribed, such corporation or body shall be liable for any loss resulting from such failure to all persons furnishing labor, materials, etc., to the contractor. If the materialman has any claim against the trustees, it is under this provision. Whether the petition discloses a liability by the trustees to the materialman because of their failure to take a bond from the contractor in the “manner and form” prescribed by the statute, such liability, if existing, would not be one in which the surety on the bond actually taken would be concerned where the bond contained no provision for the assumption of it. In other words, if it could be said that the trustees had subjected themselves to liability to the material-man in failing to take a proper bond, the resulting damage to them would flow from their own default, and not from the failure of the contractor to perform his contract. The surety on the bond which they actually obtained would not ordinarily be liable for damage suffered by them because of their failure to comply with the law and take a bond of different character. We thus conclude, that, although the petition sufficiently shows that the bond has been breached, it fails to show that the trustees suffered the damage sued for. Where, as in the present case “The petition can not be construed as asking for general or nominal damages, but is expressly limited to a prayer for special damages only, and these are not recoverable, the suit is not maintainable, and is subject to be dismissed on demurrer. Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728 (72 S. E. 179); Hadden v. Southern Messenger Service, 135 Ga. 372 (69 S. E. 480).” The petition having failed to set forth a cause of action, the court erred in overruling the general demurrer thereto. This case is distinguishable from that of American Surety Co. v. DeWald, 30 Ga. App. 606 (118 S. E. 703). In that case it appeared that the obligee in the bond was a private individual and the materialman had recorded a valid materialman’s lien on her property. Furthermore, the bond there involved obligated the makers to pay all persons having contracts directly with the principal for-labor and materials.

Judgment reversed.

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


author: Bell, J. Stephens, J.

text:
    16405.
    JEANES v. ATLANTA & LOWRY NATIONAL BANK.
    1. Where a bond for title to real estate provided that the obligors should make title to the obligee only after payment of certain notes for the purchase-money, the mere failure to convey title to him before payment of the notes constituted no breach, of the bond, A tender, properly made, might have been equivalent to performance, but one of the requisites of a valid tender is that if "must be unconditional, except for a receipt in full or delivery of the obligation; and a tender in such case was not good where it was coupled with the condition that the obligors should execute the conveyance to -which the obligee was to be entitled on paying the notes.
    2. In a suit upon such notes the defendant’s answer set forth no defense and the court did not err in striking it.
    Decided November 18, 1925.
    Complaint; from city court of Atlanta—Judge Reid. March 16, 1925.
    Atlanta & Lowry National Bank, as indorsee without recourse, filed suit on two promissory notes, one for $500 and the other for $409.60, against Ben F. Jeanes, alleging as follows: that the notes sued on were executed by the defendant, payable “to the order of R. H. McLarin and C. R. Harvey,” for a part of the purchase-price of certain land, described in a bond for title from R. H. McLarin and C. R. Harvey to the defendant. The bond for title was mentioned in each of the notes, and by reference was made a part thereof.
    The defendant filed an answer in which he alleged: “that the said Harvey and McLarin now fail and refuse to make him title to said land in accordance with the terms of said bond, although he has paid all of the purchase-price thereof, except the amount alleged to be due on the notes sued on, and although he has offered to pay this amount provided he is given title to said land in accordance with said bond for title, although he has offered to pay it the amount alleged to be due on said notes provided it would secure for him title to said land. Defendant shows that he is ready and willing to pay the amount sued for, provided he can get a title to this land in accordance with the terms of the said bond for title, but he denies that he should be required to pay said notes until the terms of said bond for title are complied with.”
    .A copy of the bond was annexed to the defendant’s answer, as an exhibit and contained the following provision: “Now, if the said party of the second part shall well and truly pay the said several sums of money at the time specified, then the said party of the first part is bound to make and execute to the party of the second part or his assigns, a good and sufficient title to the above-described lot or parcel of land; but on failure of the said party of the second part to pay the said sums of money or either of them at the times specified, then the said obligation to be void and of no effect.”
    The court sustained a general demurrer to the answer and allowed the plaintiff to take a verdict and judgment for the amount sued for, and the defendant excepted.

      U. A. Allen, for plaintiff in error.

      King, Spalding, MacDougald & Sibley, Estes Doremus, contra.
   Bell, J.

The answer presented no issue of fact for determination by the jury, and the court did not err in striking it. Properly construed, it does not allege an absolute refusal by the parties who were to convey title to comply with their contract, but avers merely that they failed to make the conveyance in response to the defendant’s offer to pay as soon as the conveyance was made. Under the terms of the contract as evidenced by the bond for title and notes, the making of titles to the defendant was not a condition of his obligation to pay the notes, but payment of the notes was a condition precedent to his right to demand a deed. The obligors in the bond for title, under the terms thereof, were not required to execute title to the defendant until compliance with his own obligation to pay the purchase-price, or a proper tender of payment. The tender alleged to have been made was burdened with the unauthorized condition that the defendant should have a deed executed to him in accordance with the bond for title. According to § 4322 of the Civil Code (1910), a tender must be “unconditional except for a receipt in full or delivery of' the obligation.” The answer failed to show a breach of the bond, or any other reason why the plaintiff was not entitled to recover. See DeGraffenried v. Menard, 103 Ga. 651 (1) (30 S. E. 560); Elder v. Johnson, 115 Ga. 691 (2) (42 S. E. 51); Morris v. Continental Ins. Co., 115 Ga. 53 (1) (42 S. E. 51); Terry v. Keim, 122 Ga. 43 (49 S. E. 736); Smith v. Tatum, 140 Ga. 719 (3 a) (79 S. E. 775); Fraser v. Jarrett, 153 Ga. 441 (3) (112 S. E. 487).

Judgment affirmed.

Jenkins, P. J., concurs.

Stephens, J.

I concur specially upon the ground that the plea fails to sufficiently allege a tender.


text:
    16480.
    Louisville & Nashville Railroad Company et al. v. Studdard et al.

   Bell, J.

1. In Jarrell v. Seaboard Air-Line Ry., 21 Ga. App. 415 (2) (94 S. E. 648), this court said, that “it is clear that the decision of the Supreme Court [in Seaboard Air-Line Ry. v. Jarrell, 145 Ga. 688, 89 S. E. 718) was distinctly predicated upon the fact 'that there was uneontradieted evidence that the two engines which passed shortly before the fire was discovered were properly equipped with sparkarresters, wherefore the circumstantial evidence - offered to show that the fire was caused by sparks emitted from an engine of the defendant company was not sufficient to ‘reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis/

2. Evidence to the effect that a locomotive engine of the defendant passed near the plaintiff’s property, and showing circumstantially that within a few minutes thereafter a fire arose in the grass and other combustible matter on the defendant’s right of way at a point which the engine had passed, and that there was no other source from which the fire likely originated, was sufficient to authorize a finding that it was caused by a spark or sparks emitted from the engine as alleged. Southern Ry. Co. v. Herrington, 128 Ga. 438 (3) (57 S. E. 694) ; Greene v. Central of Ga. Ry. Co., 130 Ga. 375 (60 S. E. 861) ; Gainesville &c. R. Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213); Southern Ry. Co. v. Pace, 114 Ga. 712 (40 S. E. 723) ; Davis v. Bellah, 29 Ga. App. 409 (116 S. E. 30) ; Atlantic Coast Line R. Co. v. McElmurray, 14 Ga. App. 196 (3) (80 S. E. 680).

3. Upon proof that the fire originated in a spark emitted from the defendant’s engine, and that it spread to and destroyed or damaged the plaintiff’s building, the presumption arose that the defendant was negligent in both particulars alleged,—namely, in failing to have the engine “properly equipped with a proper spark-arrester,” and in neglecting to keep its right of way cleared of grass and growth “which were likely to be ignited by fire and sparks from said engine.” Southern Ry. Co. v. Thompson, 129 Ga. 367 (3) (58 S. E. 1044) ; Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214 (2) (62 S. E. 1022) ; Atlantic Coast Line R. Co. v. McRee, 11 Ga. App. 790 (76 8. E. 162).

4. Even assuming that the defendant’s evidence conclusively rebutted the presumption of negligence with respect to the spark-arrester, although it was not shown that it was the best of its kind in general use (see in this connection Southern Ry. Co. v. Smith, 21 Ga. App. 814, 95 S. E. 328), the jury were authorized to find that the defendant was negligent in failing to keep its right of way clear of combustible materials whereby fire from its locomotives might be communicated to the adjacent property; and “An action will lie for negligence in this respect, though the engine from which the fire escaped was properly equipped and prudently handled.” Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214 (2) (62 S. E. 1022). The evidence authorized the verdict.

5. That an infant is so tender in years as to be incapable of qualifying as a witness is no reason for excluding declarations made by him when they are otherwise admissible as part of the res gestae, although it might be improper to admit the declarations of one so lacking in the comprehension of passing events as to make his exclamations and observations in reference . thereto altogether unreliable. Mitchum v. State, 11 Ga. 615 (4); 22 C. J. 451, § 541, and citations. It can not be said that the declarations of a child four years of age should not be admitted merely because of its youth. Grant v. State, 124 Ga. 757 (4) (53 S. E. 334) ; James v. Central of Ga. Ry. Co., 138 Ga. 415 (1) (75 S. E. 431); Central of Ga. Ry. Co. v. James, 143 Ga. 753 (85 S. E. 920).

6. In the instant case the following declaration by a four-year-old child, shown to have been made to the child’s mother while the fire was in progress: “Ma, there is a fire out yonder coming from the railroad, going to burn up here and catch the barn afire, and coming right toward it,” was properly admitted as a part of the res geste. While, “as a general rule, that which is mere narrative is apt to carry with it the impress of afterthought, there may be a narrative which is entirely free from afterthought.” Where “the statement is narrative in its nature and not exclamatory, the character of the statement may or may not determine the question, according to the circumstances of the particular case.” Southern Ry. Co. v. Brown, 126 Ga. 1 (2) (54 S. E. 911). In the present case the declaration was concurrent with the act to which it referred, and, considering the child’s age and the other circumstances in evidence, appeared to be free from all suspicion of device or afterthought, notwithstanding it was not entirely exclamatory. Grant v. State, 124 Ga. 757 (4) (53 S. E. 334) ; Berry v. State, 9 Ga. App. 868 (1) (72 S. E. 433) ; Augusta Factory v. Barnes, 72 Ga. 217 (5).

7. It was not error to instruct the jury in effect that it was the duty of the defendant railway company to exercise ordinary care to have an effective spark-arrester, the court having given in charge in the same connection the rule laid down in Southern Ry. Co. v. Thompson, supra. Indeed, the law would seem to be that the railroad company should exercise ordinary care to have an effective spark-arrester, and that the -rule laid down in the case just referred to should be construed merely as an amplification or explanation of that principle.

8. The court having in the general charge clearly confined the jury to a consideration of only such acts of negligence as were alleged in the petition, it furnished no cause for a new trial that in the instructions on the presumption arising from proof of the damage the jury were not informed that such presumption could relate only to the. acts of negligence specified "in the petition. Georgia Ry. & Electric Co. v. Reeves, 123 Ga. 697 (8) (51 S. E. 610); Davis v. Whilcomb, 30 Ga. App. 497 (10) (118 S. E. 488).

9. The court did not commit reversible error in refusing to admit in evidence “the iron or steel grate known as spark-arresting screens,” exhibited by one of the witnesses for the defendant, where the apparatus, according to the testimony, was “a piece of old netting removed from an engine” and had been “picked up in the yard,” and was not shown to be in the same condition as the corresponding apparatus on the particular engine, although it appeared to be a part of the same type of spark-arrester as that used thereon.

10. The plaintiff having alleged that the fire originated from a particular engine, the court erred in admitting, over appropriate objections, the following testimony of the fireman, having reference to the omission of sparks by other engines, not shown to have been of like construction with the particular engine in question: “I have been on the railroad seventeen years. I have seen them [sparks] shoot oiit in seventeen years. I have seen sparks recently. I can’t recall the last time I ever seen sparks come' out of a smoke-stack. It might have been a long time, and it might not have been a long time.” Inman v. Elberton &c. R. Co., 90 Ga. 663 (2) (16 S. E. 958) ; Brown v. Benson, 101 Ga. 753 (3) (29 S. E. 215); Akins v. Georgia R. & R. Co., 111 Ga. 815 (1) (35 S. E. 671) ; Atlantic Coast Line R. Co. v. McElmurray, 14 Ga. App. 196 (6) (80 S. E. 680) ; Atlantic & B. Ry. Co. v. Summer, 134 Ga. 673 (3) (68 S. E. 593); Mach v. Augusta Belt Ry. Co., 28 Ga. App. 816 (113 S. E. 66). Eor this error alone, the court erred in refusing the defendant’s motion for a new trial.

Decided November 18, 1925.

Action for damages; from Walton superior court—Judge Fort-son. April 20, 1925.

R. L. & IS. G. Gox, Miles W. Lewis, -for plaintiffs in error.

J. G. Knox, contra.

Judgment reversed.

Jenlcvns, P. J., and Stephens, J., concur.


text:
    16503.
    Louisville & Nashville Railroad Company et al. v. Mitchell.
   Bell, J.

1. As to all questions save one, this case is controlled by the decision this day rendered in the companion ease of Louisville & Nashville R. Co. v. Studdard, ante, 570 (130 S. E. 532) ; and the error pointed out in the tenth division of the syllabus in that case will likewise result in a new trial in this case.

2. In the present case the plaintiff was not the owner of the building alleged to have been destroyed by the fire, but claimed to have been the owner of certain corn and fodder situated therein, for the alleged destruction of which he sought to hold the defendant liable. The jury could have found, from the testimony of one of. the witnesses, that there was no corn or fodder in the building at the time of the fire. The court instructed the jury that the plaintiff’s measure of damages, should they “find for the plaintiff, would be the value of the property, the corn and fodder, etc., that was in the barn and adjacent to it when it was destroyed.” The defendant excepted to this excerpt, “because it was not an undisputed fact that the barn contained corn and fodder,” and because the charge assumed the truth of the issue in favor of the plaintiff. This charge might possibly have been understood as stating a variable rule to be followed by the jury in accordance with whether they found that the barn contained the quantity of these products alleged, or a lesser quantity, or none at all. In this view there would have been no error. It can not be said, however, that the excerpt was well expressed; and, as a precaution, the issue should be left more distinctly for the jury upon another trial. Since a new trial must result because of the error referred to in the preceding paragraph, it is unnecessary to determine whether there was prejudicial error in the excerpt here complained of.

Decided November 18, 1925.

Action for damages; from Walton superior court—Judge Fort-son. April 20, 1925.

B. L. & H. G. Cox, Miles W. Lewis, for plaintiffs in error.

J. G. Knox, contra.

Judgment reversed.

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


text:
    16515.
    Barker v. Green.
   Bell, J.

1. It is slanderous per se to falsely utter and publish a statement, with reference to a married woman, to the effect that she is the common wife of her husband and another man. Malice and damage will be inferred. Civil Code (1910), §§ 4429, 4433; Sparks v. Bedford, 4 Ga. App. 13 (1) (60 S. E. 809) ; Holmes v. Clisby, 118 Ga. 820 (45 S. E. 684).

2. Malice is an “aggravating circumstance.” The existence of malice would not be conclusively rebutted by proof of a retraxit, accompanied by an explanation that the words were spoken merely in jest, and only for the purpose of “teasing” the person to whom they were addressed,— namely, the “other man,” although these facts might be considered by the jury in mitigation of the damage. In such a case, where the evidence showed that the utterance was made and published as alleged, a charge to the jury in the language of § 4503 of the Civil Code was not error on the ground that there was no evidence of “aggravating circumstances.”

3.. It was not cause for a new trial to the losing party that the presiding judge gave in charge to the jury all of section 4433 of the Civil Code on the subject of slander, when immediately thereafter he expressly informed them that a part of the section was not applicable, and correctly instructed them as to which part was applicable. Central of Ga. Ry. Co. v. DeLoach, 18 Ga. App. 364 (7) (89 S. E. 433) ; Western & Atlantic R. Co. v. Mathis, 32 Ga. App. 308 (1) (122 S. E. 818), and cases cited.

4. The court committed error in instructing the jury that they should weigh the worldly circumstances of the parties, when there was no evidence whatever in reference thereto. Instructions not warranted by the evidence are cause for a new trial, if it is not apparent that the jury could not have been misled by them. Culberson v. Alabama Construction Co., 127 Ga. 599 (1) (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507). It can not be said that the amount of- the verdict in the plaintiff’s favor was not larger because of the instruction complained of. See especially Southern Ry. Co. v. Chambers, 126 Ga. 404 (6) (55 S. E. 37, 7 L. R. A. (N. S.) 926) ; Georgia Ry. & Electric Co. v. Baker, 125 Ga. 562 (6) (54 S. E. 639, 7 L. R. A. (N. S.) 103, 114 Am. St. Rep. 246, 5 Ann. Cas. 484). 5. Whether to give in charge the provisions of § 4503 and also 1 4504 in a ease of this sort would be error, as tending to authorize a double recovery, and whether § 4503 could not be applicable at all in a slander case, are questions not presented by the present record or referred to in the briefs, and this decision is not to be understood as adjudicating either of these questions. Southern Ry. Co. v. Harden, 101 Ga. 263 (1) (28 S. E. 847) ; Hooks v. Sanford, 29 Ga. App. 640 (2) (116 S. E. 221).

Decided November 18, 1925.

Complaint; from Walton superior court—Judge Fortson. April 20, 1925.

Roberts & Kelley, for plaintiff in error.

K. W. Roberts, J. O. Knox, contra.

6. Eor the error pointed out in paragraph 4 above, the court erred in refusing the defendant’s motion for a new trial.

Judgment reversed.

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


text:
    16597.
    Domingos v. Dessau, agent.
    Decided November 18, 1925.
    Distraint; from Bibb superior court—Judge Malcolm D. Jones. May 4, 1925.

      Ryals & Anderson, for plaintifE in error.

      8. W.- Hatcher, contra.
   Bell, J.

1. “A ruling of the court in disallowing an amendment to the pleading can not be made a ground of a motion for a new trial.” Simmons v. Lanford, 21 Ga. App. 686 (1) (94 S. E. 907) ; Brown v. Horn, 32 Ga. App. 96 (122 S. E. 710); Boyce v. Day, 3 Ga. App. 275 (1) (59 S. E. 930).

2. After verdict and judgment in favor of the landlord, in a distress-warrant proceeding, the tenant filed a motion for a new trial, which was overruled, and he excepted. The sole contention made by the plaintiff in error in this court being that the court erred in disallowing an amendment to the counter-affidavit, and the exception to . this ruling being contained only in the motion for a new trial, this court under the settled practice can not do otherwise than to affirm the judgment. However, a careful examination of the record has been made, and no error appears.

Judgment affirmed.

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


author: Luke, J.

text:
    16431.
    YATESVILLE PLANING MILL COMPANY v. JOHNSON.
    On the trial of an action of trover for certain boards, where it was claimed in the testimony for the plaintiff that the plaintiff bought from the defendant the timber from which the boards were cut, and the plaintiff offered to pay to the defendant a stated sum as a balance due on the purchase-money, but no formal tender of the money was made or pleaded, and the defendant denied that he had sold the timber to the plaintiff, and did not claim that anything was due him on it, the court did not err in omitting to charge the jury, as orally requested by the plaintiff’s counsel, that if they should find for the plaintiff, their verdict should be for the highest proved value of the lumber, less the balance of the purchase-money due the defendant.
    Newly discovered cumulative and impeaching evidence did not require a new trial.
    It is not cause for a new trial that the court did not charge the jury as to impeachment of witnesses, there being no timely written request for a charge on that subject.
    Decided October 6, 1925.
    Trover; from Monroe superior court—W. M. Clark, judge pro bae vice. April 1, 1925.

      John B. McDonald, Willingham & Willingham, for plaintiff.

      G. L. Redman, for defendant.
   Luke, J.

The plaintiff, a partnership, sue.d in bail-trover for the highest proved value of 300,000 feet of boards, claimed to have been manufactured from timber purchased from the defendant. The defendant replevied the property, and denied that he had sold the timber to the plaintiff, or that the plaintiff had title to it. The plaintiff’s evidence tended to sustain its contention, while the evidence of the defendant flatly denied a sale to the plaintiff. From the plaintiff’s evidence it developed that the plaintiff had purchased from the defendant “all the timber defendant had remaining standing on his place, with the exception of 100,000 feet that he wanted to reserve;” that the plaintiff “was to pay for the remaining timber at the rate of $2 stumpage whenever defendant demanded it;” that $200 was paid down on the purchase-price; that the plaintiff hired a third person to saw the timber, and contracted with the defendant to deliver it on board ^ars; that the defendant did not deliver it, and that a portion of the purchase-price had not been paid. At the trial, in the presence of the jury and in open court, the plaintiff’s counsel, in his argument to the jury, admitted that there was a balance due on the purchase-price of the timber, stated that he stood ready to pay such balance upon delivery of the timber, offered to pay the defendant that amount, and requested the court to instruct the jury that in the event they found for the plaintiff, their verdict should be for the highest proved value of the lumber, less the balance of the purchase-money due defendant, at the rate of $2 per thousand feet of lumber. No formal tender was made or pleaded, no written request to charge was submitted, and the defendant did not claim that any purchase-money was due him.

1. The court did not err in failing to charge as orally requested by counsel for the plaintiff. In this connection see Malcolm v. Dobbs, 127 Ga. 487 (4) (56 S. E. 622).

2. “The alleged newly discovered evidence was cumulative and impeaching in its character, and the court did not err in overruling the special ground of the motion for new trial based thereon.” Camp v. Bagwell, 23 Ga. App. 690 (2) (99 S. E. 234); Pool v. Duckworth, 148 Ga. 180 (96 S. E. 179).

3. “Failure to charge the jury the law with reference to the impeachment of witnesses, even when the same is applicable, in the absence of a timely written request for a charge on that subject, is not cause for a new trial.” Williamson v. State, 143 Ga. 267 (2) (84 S. E. 584).

4. The other special grounds of the motion for new trial are without merit, and further reference to them is unnecessary.

5. There was evidence to sustain the verdict for the defendant, and the court did not commit error in overruling the general grounds of the motion for new trial.

Judgment affirmed.

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


author: Per Curiam. Luke, J.,

text:
    16478.
    HARRELL v. THE STATE.
    Under the facts of this ease, in which, under an indictment for murder, the accused was convicted of voluntary manslaughter, the admission of the testimony objected to, which tended to prove intent, motive, and malice, was not cause for a new trial.
    Decided October 6, 1925.

      Indictment for murder—conviction of manslaughter; from Decatur superior court—Judge Custer. April 18, 1925.
    Conrad Harrell, the defendant, shot and killed Herschel Nazworth, a young man who, according to the testimony of HarrelFs adopted daughter Gertrude, was engaged to be married to her. She testified that the defendant had objected to every boy that came to see her, and on the Friday night before the killing accused her and Herschel of doing wrong, and raved about it, and cursed her and his wife, her adopted mother, who had always taken her side, and that they tried to get a peace warrant against him. In ground 2 of the motion for new trial exception is taken to the admission of testimony of this witness to the effect that before Herschel Nazworth began to go with her the defendant tried at different times to have intercourse' with her; that she resisted him and refused to do so, and he said, “You- think you are going to marry Braxton Martin, but if you do, I want you to know you will do no man no good;” that if she did not do as he wanted her to do, she would do no man any good, and that if he ever caught Braxton Martin on the place any more, he would blow his brains out; that she began going with Herschel Nazworth about eighteen months or two years after she broke up with Braxton Martin. This testimony was objected to as being irrelevant, immaterial, and prejudicial.
    In ground 4 exception is taken to the admission of testimony of Gertrude Harrell to the effect that “four or' five years ago” the defendant had trouble with his wife about a dog, broke up the dishes and threatened to break the necks of the wife and the witness, and that they got a peace warrant against him; that she (the witness) was not concerned with going with the boys then, and did not suppose she was concerned in this quarrel with her mother, but that when he got mad with one of them he got 'mad with the other. The solicitor-general stated that this testimony was offered for the reason that counsel for the defendant “stated in his statement that they never had any trouble except about her; that she caused it.” The testimony was objected to on the ground that it was irrelevant and immaterial, “the same being a controversy between the accused and his wife some five or six years ago.”

      Hartsfield & Conger, fox plaintiff in error.

      B. C. Gardner, solicitor-general, C. E. Crow, Billie B. Bush, contra.
   Per Curiam.

Harrell was indicted for murder, and a verdict of voluntary manslaughter was returned. Neither the general nor the special grounds of the motion for a new trial show reversible error. Special grounds 2 and 4, which are largely relied upon for a reversal, are without merit, for the reason that the evidence set out in them, which was admitted over the objection of the movant, tended to prove malice, intent, and motive. The element of motive was conspicuous in the case, and the evidence was admissible. See, in this connection, Fountain v. State, 149 Ga. 527 (101 S. E. 294); Fraser v. State, 55 Ga. 326, and Everett v. State, 62 Ga. 65 (2). The court, having approved the verdict, properly overruled the motion for a new trial.

Judgment affirmed.

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

Luke, J.,

dissenting. I do not concur in the judgment of affirmance in this case. In my opinion the two special grounds in •paragraphs 2 and 4 of the motion for a new trial, upon the authority of Cooper v. State, 13 Ga. App. 697 (2) (79 S. E. 908); Moore v. State, 145 Ga. 361 (2) (89 S. E. 335); Davis v. State, 113 Ga. 749 (39 S. E. 295); Cawthorn v. State, 119 Ga. 395 (4-5-6) (46 S. E. 897), and Fountain v. State, 149 Ga. 519 (5) (101 S. E. 294), show reversible error.


text:
    16567.
    HILL v. BLACKMON.
    No defense to this action for principal, interest, and attorney’s fees provided for in a promissory note was presented by the allegations of the defendant’s plea as to what passed between him and the plaintiff’s attorney when the defendant was making efforts to pay the note before suit, and as to a cash tender on the return day, after the suit had been filed, the plea not showing a legal tender before suit.
    Decided October 6, 1925.
    Complaint; from Wilkes superior court—Judge Perryman. May 5, 1925.
    Application for certiorari was made to the Supreme Court.

      Hugh E. Combs, Colley & Colley, for plaintiff in error.

      Clement E. Sutton, contra.
   Luke, J.

Blackmon sued Hill for principal, interest, and attorney’s fees on a promissory note. Hill admitted the execution of the note and pleaded that he was not liable for the attorney’s fees, for the reason that prior to the return day for filing suits for the February term, 1925, of the superior court of Wilkes county he stated to the attorney for Blackmon that he would be ready to pay the npte on the day before the return day, and the attorney told him that he would not be at home on that day, whereupon he told the attorney to leave the note where he could pay it. Hill further pleaded that he went to see the plaintiff in person on the day before the return day, to settle and pay the note, and the plaintiff told him that she could not do anything until she saw her attorney, whereupon Hill advised her that her attorney had gone to Augusta for the day, and the plaintiff then advised him that if the roads were not too bad she would come to Washington the next morning, so that he could settle with her. Hill further pleaded that about 10 o’clock a. m. on the return day he went to the plaintiff’s attorney and stated to him that he had the money and wanted to pay the note, whereupon the attorney stated that the suit had already been filed. Hill further pleaded that on the return day, at about 2 or 3 o’clock in the afternoon, he tendered to the plaintiff’s attorney in cash the whole amount due on the note for principal, interest, and court costs, and the tender was refused. Blackmon demurred to this plea upon the ground that it was not pleaded that the principal and interest due upon the note was tendered prior to the filing of the suit on the return day. The court sustained the demurrer of Blackmon and struck the defendant’s plea.

No legal tender of the principal and interest due upon the promissory note sued upon having been made prior to the actual filing of the suit, it was not error to strike the defendant’s plea. A verdict for the plaintiff for his principal, interest, and attorney’s fees was proper.

Judgment affirmed.

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


text:
    16576.
    Carter v. The State.
    Decided October 6, 1925.
    Dynamiting fish; from city court of Baxley—Judge Speer. April 29, 1925.
    In that part of the charge to which the foregoing decision refers the judge said, “I charge you, with reference to this crime, that if you find that this crime was committed on a stream of water which was the boundary of two county lines,' the court of either county may maintain jurisdiction;” that if the jury should find that “the crime was committed” on the Tattnall side of the center of the main channel of the Altamaha river, they could convict the defendant, etc.

      V. B. Padgett, for plaintiff in error.

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

1. The' excerpt from the charge of the court, complained of in the 1st ground of the amendment to the motion for a new trial, clearly intimated that a crime had been committed. This was reversible error. Phillips v. State, 131 Ga. 426 (62 S. E. 239); Green v. State, 7 Ga. App. 803 (68 S. E. 318).

2. The relationship of the jurors to the prosecutor was not definitely established, and the affidavits of the supporting witnesses were defective in that the names of the affiants’ associates were not given.

Judgment reversed.

Broyles, 0. J., and Bloodworth, J., concur.


author: Stephens, J.

text:
    16345.
    Board of Education of McIntosh County v. United Supply Company.
   Stephens, J.

1. A public body which has entered into a contract for the construction of public work can not, by notice to a materialman of its intention to pay direct to the contractor all bills for material which may be furnished to the contractor by the materialman for the purpose of the contract, and that it will not be liable to the materialman for such material, relieve itself of the statutory liability imposed upon it by an act approved August 19, 1916 (Ga. L. 1916, p. 94), for loss to a materialman resulting from the failure of the public body to take the bond required under that act for the use of persons furnishing material for the purpose of such contract. Nor will such notice to the materialman operate to estop him from asserting his right, under the statute, to hold the public body liable.

2. Where, by reason of the insolvency of the contractor and the failure of the public body to take the statutory bond required, the materialman will suffer a loss in the amount of the purchase-price of the material furnished, he may, under the authority of the statute, recover for such loss against the public body.

Decided October 17, 1925.

Complaint; from McIntosh superior court—Judge Sheppard. February 13, 1925.

Application for certiorari was denied by the Supreme Court.

Tyson & Tyson, for plaintiff in error.

Conyers & Wilcox, contra.

3. The board of education of McIntosh county is a public' body liable to suit under the provisions of the act of 1916, supra, by a materialman who suffers a loss by reason of the failure of the board, when letting a contract for public work, to take the statutory bond required under that act for the protection of materialmen, etc., furnishing material for the purposes of the contract. Ty Ty Consolidated School Dist. v. Colquitt Lumber Co., 153 Ga. 426 (112 S. E. 561).

4. This being a suit against the board of education of McIntosh county by the United Supply Company, a materialman, which furnished material to one who contracted with the defendant for the erection of a schoolhouse, and it appearing that, under the ruling in American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617), and United Supply Co. v. United States Fidelity & Guaranty Co., 32 Ga. App. 472 (123 S. E. 907), the bond taken by the defendant was not the statutory bond required under the act of 1916, supra, and it appearing that by reason of the insolvency of the contractor the plaintiff suffered loss of the material furnished to the contractor for the purpose of being used for the erection and construction of the building contracted for, the verdict and judgment found for the plaintiff were authorized. Decatur County v. Southern Clay Mfg. Co., 34 Ga. App. 305 (129 S. E. 290).

Judgment affirmed.

Jenlcims, P. J., and Bell, J., concur.

ON MOTION EOE REHEARING.

The ruling made in paragraph 3 of the syllabus above is not only sustained- by the act approved August 19, 1916, supra, but is not in conflict with the ruling of the Supreme Court in Hannah v. Lovelace-Young Lumber Co., 159 Ga. 856. It was there held that where a public-school board, which had let a contract for a public-school building, had failed to take the bond required under the act approved August 19, 1916, supra, where it did not appear that the defendant was “a local district in which the levy of the local tax sought to be enforced by mandamus is authorized by law,” mandamus would not lie to compel the school district to levy a tax for the'purpose of raising funds to pay the claim of one who had furnished material which went into the construction of the building. That case is not authority for the proposition that the school board is not subject to suit.

Rehearing denied.


author: Bloodworth, J.

text:
    16639.
    Treadaway v. Harris, trustee, etc.
    Decided November 10, 1925.
    Complaint; from city court of Floyd county—Judge Bale. June 6, 1925.
    In this action G. A. H. Harris Jr., trustee in bankruptcy of T. J. Treadaway, sought to recover from the bankrupt’s wife, Amanda Treadaway, rents of land which the bankrupt had conveyed to her by a deed cancelled by a decree in equity in a suit of the trustee in bankruptcy in the Hnited States district court, as having been executed in fraud of creditors. From the petition it appears, that the deed mentioned was executed on November 30, 1917; that in 1922 T. J. Treadaway was adjudicated a bankrupt; that in 1923 the trustee in bankruptcy filed the suit in the Hnited States court to cancel the deed, and on August 3, 1923, a decree adjudicating it to be void and cancelling it was rendered; and that from the time of the execution of the deed until November 8, 1924, the defendant .remained in possession of the property conveyed, claiming it under, that deed, and receiving the rents, issues and profits arising from it; it is alleged that a reasonable rental for the building on the land during the time of such possession would be $25 a month, amounting to the total sum of $2085, and the plaintiff prays that he have judgment for that sum. •
    The defendant demurred to the petition as follows: Hnder the facts stated in the petition the plaintiff is not entitled to judgment for rents, issues, and profits from the land described arising prior to the decree mentioned; for under the rules of law and equity in causes for the recovery of real estate, separate suits are not allowed for the recovery of the property and for the recovery of rents, issues, and profits, the rule being that these two claims shall constitute one suit. Plaintiff, having elected to sue for the land without claiming rents, issues, and profits, can not now maintain this suit for them. By amendment the defendant demurred further on the ground that the said real estate was made subject to the debts of T. J. Treadaway through the plaintiff as trustee in bankruptcy, and under this state of facts the defendant, as the wife of Treadaway, is not personally liable for the rents and profits as claimed. The defendant moved to dismiss the petition because its allegations show that the alleged cause of action is an equitable cause, and the court in which it was brought has no jurisdiction to hear and determine a cause in equity. The court overruled the demurrer and the motion to dismiss the petition.
   Bloodworth, J.

The court did not err in its rulings on the pleadings, and properly overruled the motion to dismiss the petition.

Judgment affirmed.

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

The defendant in her answer admitted the material allegations of fact in the, petition, except as to the amount of the rent, and in paragraph 2 alleged: “Said decree contained the following clause, to wit: ‘Amanda Treadaway is hereby ordered and directed to make and sign an instrument in writing, releasing and relinquishing all rights or claims she may have in and to said property, and to execute such instrument in the presence of witnesses as required by the laws of the State of Georgia, and file the same with the clerk of the superior court of Floyd county, Georgia; this to do within twenty days from this date. Upon failure so to do this decree shall operate as a cancellation of all rights or claims she may have in and to said property, and vest the same in said trustee in bankruptcy of the estate of Thomas J. Treadaway, bankrupt/ Defendant alleges that she did not make and execute deed as directed, and that said decree did not become operative until August 23, 1923.” In paragraph 5 of the answer “defendant says that said plaintiff is not entitled to receive rents, issues and profits from the premises described in said petition until after the 23d of August, 1923, because of the terms and conditions stated in said decree hereinbefore alleged. Defendant further says the reasonable rents, issues, and profits of said premises received by her, with interest thereon, amounted to $......after paying taxes, insurance, and repairs on said premises.” The court on demurrer struck the two foregoing paragraphs of the answer. The demurrer to paragraph 2 was on the ground that it set forth no defense. The demurrer to paragraph 5 was on the following grounds: It does not appear in said paragraph or elsewhere in the answer that in the cause determined in the United States court there was any issue raised or decided with reference to rents, issues, and profits from the property. No defense is set forth in said paragraph. The defendant fails to state any specific sum as a proper amount to charge against her in this suit. The defendant fails to allege what amount she has expended for improvements, repairs, and taxes on the property. Such sums are not proper charges if set off against the plaintiff’s demand, and can not be pleaded as a defense to this suit. The case came to this court on exceptions to each of the rulings stated.

E. P. Treadaway, Lamar Camp, L. A. Dean, for plaintiff in error,

cited: 12 Euling Case Law, 642, par. 149, notes 9 and 10; 61 Ga. 602 (3); 7 Ga. 246, 257-8; Civil Code (1910), § 5576; 133 Ga. 493, 496; 126 Ga. 196, 201; 95 U. S. 3, 9; 154 U. S. 631.

Maddox, Matthews & Owens, Willingham, Wright & Covington, contra,

cited: 61 Ga. 602 (3), 607; 68 N. E. 676 (4); 7 C. J. 113; Bankrupt act, 1898, sec. 70-a (4), 67-e; Civil Code (1910), § 5576; 143 Eed. 201 (2); 152 Fed. 41, 52; 100 U. S. 100.


text:
    16650.
    JONES v. THE STATE.
    A conviction of trespass was authorized by the evidence.
    Decided November 10, 1925.
    Accusation of trespass; from city court of Ludowici—Judge Price. June. 8, 1925.
    The accusation charged W. H. Jones with having unlawfully entered upon and cut twenty-nine cypress trees on certain uninelosed land of W. D. Farris and E. K. Hopkins, on December 31, 1923. On the trial there was evidence that in December, 1923, the land described was owned by W. D. Farris, and that during that month -twenty-nine cypress trees were cut off the land. Farris •testified: “Jones was cutting the timber on the adjoining land. There is a line dividing my land from the land they were working on; it is a surveyed and blazed line. A portion of the land— nearly all—is in the swamp. The line I would not say is clear, but it is clear enough to see between my land and the land they had a lease over. . . I guess anybody could see that it was a land line. Most of it was through the swamp. . . I did not see Jones cutting the timber. . . Mr. Jones knew he was cutting this timber on my land, for I sent him a letter and told him that he was cutting the timber on my land, and he did not pay any attention to my letter, and so I sent him another one by registered mail and told him that he was cutting my timber. I registered that letter at Ludowici. The first letter came back, but the regis-' tered letter was not returned. . . I had been informed that Mr. Jones had been cutting timber. . . There had been other timber cut beside this, and that is why I wrote Mr. Jones this-letter.” John Smith testified: “I went with Mr. Farris and saw where the timber was cut. I hauled some of the timber off the land. It was off Mr. Farris’ land. I was working for Mr. Jones. . . I did not know that I was hauling the timber off Mr. Farris’ land. I did not know his land only when they showed me where the timber was cut and they told me it was his land.” It was testified that Farris said to Jones, “You know you cut my timber, and I want you to pay for it;” that Jones asked him what he wanted for it, and Farris said that he would take $100 for it, and Jones said he would like to have it counted, and he could then arrive at the amount, and Farris said that he had already counted it; that later a letter offering to settle for $50 was written to Jones, but nothing was heard from him in response to the offer.
    I. B. Skipper, a witness for the defendant, testified: “I worked ■for Mr. Jones during the year 1923. I was overseeing his business, and he employed me to keep his hands straight with reference to lines, and not to let them cut over the lines. . I know where Mr. Farris’ land is, and I know where the line is dividing the land over which Mr. Jones was cutting and the land of Mr. Farris. I know those lines, as I had been in charge of the land for a number of years, for the people they leased from, and they did not cut any timber over the lines. I was not working for Mr. Jones individually, but was working for the Roberson-Jones Lumber Company. Mr. Jones is a member of the firm of Roberson-Jones Lumber Company. . . I was not working for Mr. Jones at the time the timber was alleged to have been cut, and don’t know anything about the cutting of this particular timber.” The defendant, in his statement at the trial, said: “I was cutting this timber for the Roberson-Jones Lumber Company. I had Mr. Skipper employed to keep me straight on the lines, and I don’t know whether or not we cut any timber over the line. I was not there when it was alleged the timber was cut. It is true that I had a .talk with Mr. Farris with reference to the cutting of this timber,, and I told him that if I had cut any timber, I was willing to pay him for it. I don’t know whether or not I cut this timber. I was depending upon Mr. Skipper to keep me straight on the lines, as he knew all about the lines. I did not cut the timber myself, but if there was any cut it was cut. in the name of Boberson-Jones Lumber Company, as I was not operating at the time as an individual.”

      Raymond Pierce, for plaintiff in error.

      Thomas J. Parrish, solicitor, contra.
   Bloodworth, J.

The verdict is approved by the trial judge, and this court can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 562, 563 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which it set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of this State, we can not -overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

The facts in the instant ease differentiate it from the case of Campbell v. State, 127 Ga. 307 (56 S. E. 417), cited and relied upon by the plaintiff in error.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    16651.
    OCEAN ACCIDENT & GUARANTEE CORPORATION LIMITED v. HODGES.
    The evidence authorized a finding that the relation of Hodges to the • lumber company, under Ms contract to cut and haul logs for it at a ■ stated sum per thousand feet, and to furnish the tools, teams,, and laborers necessary for the work, was not that of an independent contractor, but that of an employee; and the award of compensation, under the workmen’s compensation act, was authorized.
    Decided November 10, 1925.
    Appeal; from 'Washington superior court—Judge Hardeman. May 28, 1925.

      Ralph G. Sims, for plaintiff in error.

      Evans &' Evans, contra.
   Broyles, C. J.

This was a claim arising under the workmen’s compensation act. The only question to be decided is whether Hodges, the deceased, was an employee of the lumber company in question, or whether he was an independent contractor. Upon the hearing of the claim before a member of the industrial commission the evidence showed that Hodges and the lumber company entered into an oral contract, under which Hodges was to cut and haul logs for the company at $5 per thousand feet. He was to furnish the tools, teams, and laborers necessary for the work. His name was put upon the company’s pay-roll, but the names of the men he hired to assist him were not on the pay-roll, he paying them himself. Hodges himself actually did the work of a laborer, cutting down and hauling the logs. Evidence was also adduced (see pages 17, 24, and 33 of the record) which, together with the legal inferences and deductions arising therefrom, authorized a finding that the lumber company retained the right to direct Hodges, not only as to what work he should do, but how he should do it.

The commissioner, therefore, was authorized to find that the relation of master and servant existed between the lumber company and Hodges. See, in this connection, Singer Mfg. Co. v. Rahn, 132 U. S. 518 (1) (33 L. ed. 440); 26 Cyc. 966. It follows that the judge of the superior court did not erf in affirming the judgment and award of the commissioner.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16671.
    HOLBROOKS v. FORD RENTAL SYSTEM.
    The action being for damages because of the striking of the plaintiff by an automobile when he was crossing a highway, and it not appearing from the petition that the alleged violation of law in not displaying a number-plate on the automobile, or in letting out the automobile for hire on the Sabbath day, had any causal relation to the injury, the court did not err in sustaining a demurrer to the allegations as to such violation of law.
    Admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover upon the theory that the proximate cause of the injury was the alleged defective brakes of the automobile. The judgment declaring a nonsuit was not error.
    Decided November 10, 1925.
    Action for damages; from city court of Floyd county—Judge Bale. June 10, 1925.

      Porter & Mebane, for plaintiff.

      Denny & Wright, for defendant.
   Luke, J.

Plaintiff, aged ten, by his next friend, sued Ford Bental System, a partnership composed of Charlie and Phil Men'delsohn, for damages alleged to have been inflicted upon him by reason of a collision of the defendant’s Ford automobile with him while he was crossing a public highway. At the time of the collision the automobile was rented to Alex Dixon and Joe McCarver, and was being driven by the former in an easterly direction on the Alabama public road towards Eome. The allegations of negligence, briefly stated, are: (1) When defendant let out said automobile the brakes were so loose and defective that, though the driver of the ear saw plaintiff in time to have avoided the collision had the brakes been good, and though he promptly and properly tried to apply them, yet because of their defective condition the collision occurred and plaintiff was injured. (2) Defendant was guilty of negligence per se, in violating the automobile laws of Georgia in failing to equip said automobile with efficient and serviceable brakes. (3) Defendant was negligent in failing to display the number-plate assigned to said automobile as required by the laws of Georgia. (4) Defendant was negligent in letting out said automobile for hire on the Sabbath day in violation of section 416 of the Penal Code (1910), inhibiting any person from pursuing his business or the work of his ordinary calling on the Sabbath day.

1. It not appearing from the petition that the alleged violations of the laws of Georgia in failing to display a number-plate on the automobile and in letting .out the automobile for hire on the Sabbath day had any causal relation to the plaintiff’s injuries, the court did not err in sustaining the demurrer to the allegations as. to negligence in these particulars. Central of Ga. Ry. Co. v. Moore, 149 Ga. 581 (101 S. E. 660); So. Ry. Co. v. Pair, 32 Ga. App. 378 (123 S. E. 142).

2. Admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover upon the theory that the proximate cause of his injuries was the alleged defective brakes. The judgment declaring a nonsuit was not error.- Civil Code (1910), § 5942.

Judgment affirmed.

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


author: Bboti.es, O. J.

text:
    16673.
    Clifton v. The State.
    Decided November 10, 1925.
    Indictment for possessing liquor; from city court of Floyd county—Judge Bale. June 29, 1925.
    Ida Clifton was convicted on the charge of possessing intoxicating liquor. From the evidence it appeared that several gallons of corn whisky, a gallon can that had been opened, a funnel, some measuring cups, and a number of pint bottles were found in a vacant house next to and about twenty steps from the house in which the defendant lived with her husband. An officer broke open the door of the vacant house, on which was a new Yale lock, and found on a table with the opened can of whisky a key which fitted the lock. A key of the same kind and number, which fitted the door mentioned and the' door of the house in which the defendant lived, was found in her house. There was a freshly used path between the two houses, and she had been seen going in and out of the vacant house. Her brother had formerly lived in that house, but was then at the State farm, to which he had been sent for possessing liquor, and had turned the house over to her, and arranged with another woman to occupy one room in it at night. It was testified that at the time the liquor was found in the vacant house liquor bottles and a can from which liquor had been freshly poured out were found in the defendant’s house, but no'liquor was found there. In her statement at the trial she said that she had nothing to do with the liquor and knew nothing about it.
   Bboti.es, O. J.

The conviction of the defendant depended wholly upon circumstantial evidence, and the evidence was not sufficient to exclude every reasonable hypothesis save that of her guilt. It follows that the court erred in overruling her motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Porter & Mebane, for plaintiff in error.

Alec Harris, solicitor, contra.


text:
    16691.
    Camp v. The State.
    Decided November 10, 1925.
    Accusation of unlawful fishing; from city court of Floyd county —Judge Bale. June 30, 1925.
    The accusation charged George Camp “with the offense of a misdemeanor, for that the said George Camp, on the 12th day of May, 1925, in the county aforesaid, with force and arms did fish with nets in the Coosa river, about four hundred yards up the river above Yeal’s ferry in said State and county, it being a closed season at the time said George Camp was so fishing, and the said George Camp did take fish from said nets, contrary to the laws of said State,” etc.
    The demurrer was on the following grounds: (1) No crime under the laws of the State is set out in the accusation. (2) It fails to describe the character of the nets with sufficient definiteness to put the defendant on notice of the charge against him. (3) It fails to describe with sufficient certainty the manner of taking fish from the river. (4) It fails to describe definitely the character of water from which the defendant fished. (5) It fails to describe what regulation of the Georgia State Board of Game and Fish, prescribed under authority of section 26 of the act approved August 8, 1924 (Ga. L. 1924, p. 112), the defendant is charged with having violated; and therefore the defendant is not properly on notice of the character of charge against him.
    The court overruled the demurrer; and the case' came to the Court of Appeals on exceptions to that judgment.

      John Gamp Davis, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Bloodworth, J.

The accusation sufficiently charges a violation of section 612 of the Penal Code of 1910, and is not subject to any ground of the demurrer lodged against it. See Bolton v. State, 12 Ga. App. 358 (77 S. E. 208).

Judgment affirmed.

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


author: Broyles, O. J.

text:
    16749.
    Hart v. The State.
    Decided November 10, 1925.
    Indictment for perjury; from Cook superior court—Judge Knight. July 11, 1925.
    The indictment charged John Hart with “the offense of John Hart, for that the said perjury, on the 13th day of November in the year 1922 in the county [of Cook] aforesaid, did then and there unlawfully and with force and arms wilfully, knowingly, absolutely, and falsely swear in a matter material to the issue in the case of the State of Georgia vs. Homer Smith, charged with simple larceny in the superior court of Cook county, Georgia, after a lawful oath had been administered to him, the material matter so sworn to by the accused being as follows: [setting out the testimony], This testimony was material upon the issues involved in the ease as stated above. Contrary to the law of said State,” etc.
    The demurrer was on the following grounds: (1) The indictment charges John Hart with “the offense of John Hart, for that the said perjury” did, etc. This charges no offense. (2) The indictment fails to allege that Cook superior court had jurisdiction of the case of the State vs. Homer Smith; the day on which it is claimed the defendant committed the offense of perjury is not alleged; it is not alleged that the superior court had power and authority to administer an oath to the said John Hart in the trial of said case; it is not alleged that there was a legal, valid indictment or special presentment returned against said Homer Smith, or that the same was returned by a legally empanelled, qualified grand jury of' Cook superior court.
   Broyles, O. J.

1. The demurrer to the indictment was properly overruled.

2. Under all the facts of the case it is not made to appear that the court abused its discretion in denying the motions for a continuance of the case.

3. The accused was charged with having committed perjury during the trial of a criminal case in which the defendant (charged with hog-stealing) was acquitted. Upon the trial in the instant case the indictment in the former case, with the verdict and other entries thereon, was introduced in evidence, as were also the minutes of the court. Upon the uncontradicted showing by the State that a record of the former case had never been made, since the testimony, although taken down in short-hand, had never been transcribed by the reporter, and that the reporter was dead, it was not error to allow oral evidence as to the testimony in the former trial by the accused in the instant case. The case of Hefling v. State, 88 Ga. 151, cited and relied on by counsel for the plaintiff in error, is easily distinguished by its facts from this case.

4. None of the special grounds of the motion for a new trial shows reversible error, the verdict was authorized by the evidence, and for no reason assigned in the exceptions pendente lite is another hearing of the case required.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Jeff. S. Story, Hendricks & Hendricks, for plaintiff in error.

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


text:
    16770.
    DAVIS v. THE STATE.
    The charge of the court on the law of voluntary manslaughter was authorized by the evidence and the defendant’s statement at the trial.
    The charge of the court as to the preponderance of evidence was not cause for a new trial.
    Decided November 10, 1925.
    Conviction of manslaughter; from Macon superior court— Judge Eve presiding. August 13, 1925.
    In the motion for a new trial it is contended, as to the charge on the preponderance of evidence, which is set out in the decision, that “it is inapt, not demanded, and absolutely prejudicial to the defendant’s rights, and serves to confuse the minds of the jury, there being a conflict in the testimony between the State and the defendant on the issues in the case depending on the weight to be given conflicting evidence. It is error to charge the law of preponderance of evidence at all.”

      John B. Guerry, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, C. J.

1. Under the evidence adduced and the defendant’s statement, the court did not err in instructing the jury upon the law of voluntary manslaughter.

2. It was not reversible error to instruct the jury as follows: “There are certain general principles of law that, according to the opinion of the court, it is entirely proper should be given for the consideration of the jury in investigations of any and all criminal eases, of whatever nature, character, and kind. Some of these are now given you in charge, for your information and guidance and consideration. Moral and reasonable certainty is all that can be expected in legal investigations. In all civil cases the preponderance of the testimony is considered sufficient to produce mental conviction. What amounts to preponderance of testimony, or the meaning of it, there might be doubt in your minds as to exactly its meaning. The Civil Code says: ‘By a preponderance of the testimony is meant that superior weight of the evidence upon the issues involved which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.’ That is the definition of ‘preponderance of evidence,’ contained in this section. Continuing, it says, in this section of the Penal ■ Code: ‘In criminal cases a greater strength of mental conviction is held.necessary to justify a verdict of guilty;’ meaning a greater than preponderance of testimony.” See, in this connection, Wilburn v. State, 141 Ga. 510 (8) (81 S. E. 444). In the case of Mill v. State, 2 Ga. App. 398 (58 S. E. 673), cited and relied upon by counsel for the accused, the charge was quite different from that in the instant case; for, as stated by Hill, C. J., in the opinion, “The excerpt from the charge on the subject of the preponderance of evidence led the jury to believe that they would be authorized to base a conviction on the greater weight of the evidence.” The charge complained of in the instant case clearly informed the jury that the accused could not be convicted upon a mere preponderance of the evidence.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bl.oodworth, J.

text:
    16707.
    TEEMS v. THE STATE.
    There was no abuse of discretion in refusing to continue the case.
    A conviction of voluntary manslaughter was authorized by the evidence.
    Decided November 11, 1925.
    Conviction of manslaughter; from Chattooga superior court-judge Wright. June 11, 1925. .

      F. W. Copeland, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. N. Andrews, contra.
   Bl.oodworth, J.

1. The only special ground of the motion for a new trial alleges that the court erred in overruling a motion to continue the case on account of the absence of a witness. The motion to continue shows that this witness was present when the difficulty arose in which a person was killed and out of which grew the indictment against the defendant; that the witness had moved from Georgia and was living in Alabama, and that on cross-examination the defendant swore: “I don’t know what I can prove by him. He never told me, but he will swear the truth. I have never talked to him. He is over in Alabama. I have been in jail two months. I got out this subpoena since court started this week.” Hnder this showing we can not say that the judge abused his discretion in refusing to continue the ease. Smith v. State, 21 Ga. App. 237 (1) (94 S. E. 265). Moreover, the-motion to continue was incomplete. There is no statement from the defendant “that he expects he will be able to procure the testimony of the witness at the next term of court; and that the application is not made for the purpose of delay, but to enable the-party to procure the testimony of the absent witness.” See Penal Code (1910), § 987; Jones v. State, 128 Ga. 23 (1) (57 S. E. 313); Long v. State, 25 Ga. App. 22 (2) (102 S. E. 359).

2. There is evidence to support the verdict of voluntary manslaughter.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    16723.
    Bostick v. The State.
   Bloodwobth, J.

“A ground of a motion for a new trial which assigns error on the refusal to exclude evidence, but fails to set out either literally or in substance such evidence, is insufficient to raise any question for decision by this court.” Ga. & Fla. Ry. Co. v. Stapleton, 143 Ga. 46 (1) (84 S. E. 120). “Under repeated rulings of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court. McCall v. State, 23 Ga. App. 770 (99 S. E. 471) ; Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (87 S. E. 681), and citations.” Franklin v. State, 28 Ga. App. 460 (1 b) (112 S. E. 170).

“The conviction not being wholly dependent upon circumstantial evidence, an assignment of error upon the ground that, without request, the court failed to charge the law of circumstantial evidence is without merit.” Bearden v. State, 32 Ga. App. 779 (124 S. E. 811).

Decided November 11, 1925.

Indictment for burglary; from Fulton superior court—Judge Howard. June 6, 1925.

Vernon F. Taylor, for plaintiff in error.

John A. Boyhin, solicitor-general, Ralph H. Pharr, contra.

“It was not cause for a new trial that the court, in defining circumstantial evidence and in instructing the jury as to the law on that subject, in the same connection gave the jury the definition from the code of ‘sufficient evidence,’ ‘cumulative evidence,’ ‘direct evidence,’ and presumptive evidence.’” Wilburn v. State, 141 Ga. 512 (6) (81 S. E. 445).

Under the rulings in the foregoing cases and the note of the trial judge to the motion for a new trial, there is nothing in any of the special grounds of the motion that requires a rehearing of th'e case; and this court can not say that there is no evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., amd LuJce, J., concur.


text:
    16726.
    MILLIKEN v. THE STATE.
    No question for decision is presented by a ground of the motion for a new trial which, for stated reasons, assigns error on the ■ admission of certain testimony objected to at the trial, but does not show what ground of objection was then stated to the court.
    If the testimony objected to was illegally admitted, the error would not require a new trial, for practically the same evidence was admitted without objection.
    The charge complained of, or the failure to charge as requested, does not require a new trial.
    There is some evidence to support the verdict.
    Decided November 11, 1925.
    Accusation of riot; from city court of Baxley—Judge Speer. June 27, 1925.

      Hartwell L. Williams, James R. Thomas & Son, for plaintiff in error.

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

1. “Grounds- of a motion for a new trial, complaining of the admission of evidence, which state that the evidence was admitted ‘over the timely objections of the defendant/ but which fail to show what grounds of objection were then and there urged and overruled by the trial court, present no question for decision by this court. Somers v. State, 116 Ga. 535 (3) (42 S. E. 779).” Ingram v. State, 26 Ga. App. 233 (1) (105 S. E. 727). “This court can not consider a ground of a motion for a new trial, alleging error in admitting evidence over the movant’s objection, unless it distinctly appears that the objection insisted upon here was made and passed upon at the trial. There has been no departure from this rule, and it can not be varied, no matter how important or vital may be the question sought to be made as to the admissibility of the evidence in question.” (Italics ours.) Phillips v. State, 102 Ga. 594 (27 S. E. 699). “It should appear from the record that proper objections were made, and that they were passed on in the trial court, before exceptions made thereto can avail movant in the Supreme Court. Phillips v. State, 102 Ga. 594 (27 S. E. 699); White v. State, 116 Ga. 573 (42 S. E. 751); Wells v. State, 97 Ga. 209 (22 S. E. 958); Summers v. State, 116 Ga. 535 (42 S. E. 779).” (Italics ours.) Weldon v. State, 158 Ga. 144 (123 S. E. 218). “A ground of a motion for a new trial based upon the admission of evidence should state what objection was made thereto when it was offered at the trial, and should affirmatively show that the objection was then urged; otherwise no question is raised for determination by the court. McFarland v. Darien &c. R. Co., 127 Ga. 97 (56 S. E. 74).” (Italics ours.) Hill v. Chastain, 138 Ga. 750 (1) (75 S. E. 1130). See City of Rome v. McWilliams, 145 Ga. 191 (2) (88 S. E. 931). Under the rulings in the foregoing cases the assignment of error based upon that ground of the motion for a new trial which complains of the court’s ruling in admitting certain evidence can not be considered. Moreover, should we concede that this evidence was illegally admitted, this was not such a material error as would require the grant of a new trial, for- practically the same evidence was admitted without objection. Louisville & Nashville R. Co. v. Lovelace, 26 Ga. App. 286 (3) (106 S. E. 6), and citations.

2. When considered in the light of the charge of the court as a whole, neither the excerpt therefrom nor the failure of the judge to charge as requested shows reversible error.

3. There is some evidence to support the verdict.

Judgment affirmed.

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


text:
    16733.
    GRAHAM v. THE STATE.
    Decided November 11, 1925.
    Conviction of manslaughter; from Pierce superior court—Judge Eeed. July 13, 1925.

      James B. Thomas & Son, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Per Curiam.

1. There was no error in the following charge: “A witness may be impeached, by disproving the facts testified td by him, or by proof of contradictory statements previously made by him of matters relevant to his testimony and to the case, or by proof of general bad character. When thus impeached, or sought to be, in either of the latter instances, he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury.” (Italics ours.) The phrase “in either of the latter instances” excludes the first method of impeachment,—by disproving the facts testified to by the witness,— and this differentiates the case from the eases of Bell v. State, 100 Ga. 78 ( 27 S. E. 669), and Harper v. State, 17 Ga. App. 561 (87 S. E. 808), cited and relied upon by plaintiff in error. See, however, McBride v. State, 150 Ga. 92 (1) (102 S. E. 865).

2. There are some theories deducible from the evidence and the statement of the defendant that would tend to show voluntary manslaughter. Under the broad rulings of the Supreme Court and of this court “if there be any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both of these offenses should be given. Jackson v. State, 76 Ga. 473, 478; Wayne v. State, 56 Ga. 113.” And “if there is anything deducible from the evidence or from the defendant’s statement at the trial that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter.” Griffin v. State, 18 Ga. App. 462 (89 S. E. 537). See Weldon v. State, 21 Ga. App. 330 (h) (94 S. E. 326).

Judgment affirmed.

Broyles, O. J., ■and Bloodworth, J., concur. Luke, J., dissents.

Luke, J.,

dissenting. I can not agree to the second division of the decision. In my opinion, the evidence of the State was in substance that the deceased was coming towards the accused without any attempt or threat to commit a serious personal injury upon him. The statement of the defendant and the evidence introduced by him was in substance that the deceased had threatened to kill him, that the threat had been communicated to him, and that at the time of the homicide the deceased was advancing upon him with a knife. The evidence of the State made a case of murder, while that of the defendant made a case of justifiable homicide; and for this reason the trial judge, in my opinion, erred in charging on voluntary manslaughter. See James v. State, 123 Ga. 548 (51 S. E. 577); Worley v. State, 138 Ga. 336, 339 (75 S. E. 240); Dyal v. State, 97 Ga. 428 (25 S. E. 319); Hudson v. State, 24 Ga. App. 310 (100 S. E. 784).


author: Bloodwoeth, J.

text:
    16739.
    Strickland v. The State.
    Decided November 11, 1925.
    Indictment for larceny; from city court of Hinesville—Judge W. C. Hodges. June 20, 1925.
    The indictment charged the larceny of “three black turkey hens and one black turkey gobbler and one brown turkey gobbler.” The defendant demurred on the grounds that the description of the turkeys was insufficient, that their sizes, weight, or ages were not given, and that it was not alleged whether they were wild or tame, “said species being respectively different in form and having distinct natural' colors and marks, either specie being the subject of simple larceny.”
    Mrs. DeLoach, from whom the turkeys were alleged to have been stolen, testified: that in December, 1924, she lost turkeys from her yard; “there were three black turkey hens with white tips on their feathers; two of the gobblers were young, one black and one brown,” and she never saw them afterwards; Strickland, the defendant, lived about half a mile from there and owned turkeys which ranged towards her turkeys. Mary Eutch testified: that she lived about half a mile from Strickland, and he owned fifty-one head of turkeys, and her turkeys got together with them and she went to his place and saw in his pen four turkeys—three hens and a gobbler; that “part were right brass colored on the wings;” that she had seen Mrs. DeLoaclds turkeys about a week before, when at Mrs. DeLoaeh’s house, and these looked like Mrs. DeLoach’s turkeys; that Mrs. Strickland asked her to help find an owner for them, and she told Mrs. Strickland that it looked to her mind that they, were Mrs. DeLoach’s turkeys; she told Mrs. Strickland that “they were her turkeys;” she would not swear that they were Mrs. DeLoach’s turkeys. In another part of her testimony the witness stated that after she had seen these turkeys at the defendant’s house she saw him at her own house, and he asked her if she knew whose turkeys were shut up at his- house, and said that they were strange turkeys, but she did not know. Others testified that the defendant had turkeys in his yard that he said did not belong there, and that he said he did not know whose they'Wére. A witness testified that a short time before Christmas the defendant called him to look at four turkeys in coops at the defendant’s place, asked if he had seen anybody looking for any, and said he did not want strange ones; the witness did not find the owner. It was testified that 6n Tuesday before Christmas the defendant carried to Savannah and sold forty-seven turkeys which he got from a pen; that they were cooped in his stable. The defendant, in his statement at the trial, denied that he stole the turkeys.
   Bloodwoeth, J.

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

2. The verdict is without evidence to support it, and the court erred in ' refusing to grant a new trial.

Judgment reversed.

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

M. Price, for plaintiff in error.


text:
    16758.
    Reese v. The State.
    Decided November 11, 1925.
   Bloodworth, J.

The trial court is alleged to have erred in reopening this case in order to allow the State to introduce additional evidence. What objection was urged against reopening the ease is not shown. The reopening of a case is always in the sound discretion of the trial judge. •In this case it does not appear that the judge abused his discretion. Holland v. State, 22 Ga. App. 135 (3) (95 S. E. 538) ; Pitts v. State, 15 Ga. App. 436 (1) (83 S. E. 673), and citations.

2. It is alleged that the court, after reopening the case, erred in allowing to go to the jury evidence that the deceased was mad with the accused and refused to speak to him, because the accused had been caught by the deceased in the bed with his wife. This was relevant to show motive. See Harrell v. State, ante, 577 and cit.; Harris v. State, 17 Ga. App. 723 (7) (88 S. E. 121); Hayes v. State, 126 Ga. 95 (1) (54 S. E. 809); Little v. State, 150 Ga. 728 (105 S. E. 359).

3. When the entire charge of the court is considered, a new trial is not required either by the excerpts complained of or by the failure. to charge as requested. The charge given - covered the issues in the case, and if a fuller charge on any particular subject was desired, it should have been requested as provided for by the law.

4. There was sufficient evidence to support the verdict.

Judgment affirmed.

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

Conviction of manslaughter; from Lumpkin superior court— Judge J. B. Jones. August 1, 1925.

R. H. Baker, Charters & Wheeler, for plaintiff in error.

Robert McMillan, solicitor-general, contra.


author: Luke, J. Broyles, C. J.

text:
    16768.
    BRADLEY v. THE STATE.
    Decided November 11, 1925.
    Conviction of arson; from Tattnall superior court—Judge Sheppard. July 15, 1925.

      E. J. Giles, C. L. Cowart, P. M. Anderson, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Luke, J.

The defendant was convicted of arson. His conviction was dependent wholly and entirely upon circumstantial evidence. The evidence was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. For this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloockoorth, J., coneurs. Broyles, O. J., dissents.

Broyles, C. J.

I think that the evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt.


text:
    16771.
    SMITH v. THE STATE.
    Acquittal on an indictment under section 442 of the Penal Code (1910), charging the defendant with having appeared in an intoxicated condition on a public highway, which intoxication was made manifest by boisterousness and indecent condition and acting, and by vulgar, profane, and unbecoming language, was no bar to a conviction on an indictment under the act of 1910 (Ga. L. 1910, pp. 90, 93; Park’s Code (Political), § 828 (i) ; Park’s Penal Code, § 528 (c) ), charging the defendant with ■ having operated an automobile on the public highway while in an intoxicated condition.
    Decided November 11, 1925.
    Indictment for operating automobile while intoxicated; from Clarke superior court—Judge Eortson. August 5, 1925.
    Application for certiorari was made to the Supreme Court.
    Each indictment charged that the offense was committed on a public highway leading from Winterville, Ga., to Athens, Ga., on February 23, 1924, and the plea alleged that the indictments were founded upon the same facts and transaction.

      Carlisle Cobb, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Luke, J.

The defendant was indicted for operating an automobile on a public highway while under the influence of intoxicating liquor. He had been acquitted upon an indictment which charged him with appearing in an intoxicated condition on the public highways, which intoxication was made manifest by boisterousness and by indecent condition and- acting, and by vulgar, profane, and unbecoming language, and by loud and violent discourse. The defendant filed a plea of former jeopardy, which, on demurrer, was stricken; the trial proceeded, and the jury returned a verdict of guilty.

The court properly struck the plea of former jeopardy. The evidence amply authorized the conviction, and for no reason pointed out was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworfh, J., concur.


text:
    16778.
    NORMAN et al. v. THE STATE.
    The evidence as to ownership of the dwelling house alleged to have been maliciously injured was sufficient to support the allegation as to ownership; and the verdict of guilty was authorized by the evidence.
    Decided November 11, 1925.
    Indictment for malicious mischief, from Colquitt superior court —Judge Persons presiding. August 13, 1925.

      James L. Dowling, for plaintiffs in error.

      Clifford E. Hay, solicitor-general, contra.
   Bloodworth, J.

1. The special ground of the motion for a new trial will not be considered, because it is not specifically argued in the brief of plaintiff in error, and there is no general insistence on all the grounds of the motion.

2. It is urged that a new trial should be granted on the general grounds, counsel for plaintiff in error calling attention to the fact that in the indictment it was alleged that the dwelling house which was “willfully and maliciously” injured was “the property of J. E. Powell,” and that this allegation was not supported by proof.. J. E. Powell swore: “The house belonged to me because I bought it from the First National Bank. . . I had owned the house some little time. . . On the day that Castleberry moved out I went into possession. I have been in possession ever since.” Mrs. Castleberry, while testifying about the injury to the dwelling, said: “The bank sold it to Mr. Powell.” This evidence went to the jury without objection, was not contradicted, and is sufficient to establish the ownership of the property in J. E. Powell. There is sufficient evidence to support the verdict.

Judgment affirmed.

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