text:
    16175.
    Tompkins v. Hardison et al.

    Costs, 15 C. J. p. 238, n. 55 New.
    Frauds, Statute of, 27 C. J. p. 385, n. 25.
    Logs and Logging, 38 C. J. p. 193, n. 5.
    Trial, 38 Oye. p. 1557, n. 21.
    Decided February 26, 1926.
    Action, for breach of contract; from city court, of Dublin—Judge Sturgis. December 27, 1924.
    STATEMENT OF PACTS BX STEPHENS, J.
    This is a,suit by I. D. Tompkins against J. H. Hardison and others for damages on account of the breach of an alleged contract under which the plaintiff purchased a sawmill from the defendants and contracted to cut and saw a certain body of timber for them. The contract sued upon, as established by the testimony of the. plaintiff, was as follows: “I had a contract with the Hardison-Gragg Lumber Company on August 8, 1919. I made that contract with Mr. J. H. Hardison. We contracted to cut a certain tract of timber on Mr. O. S. Kennedy’s place and Mr. Tom Smith’s place. I contracted with him to cut it. He guaranteed me 500,-000 feet. . . The trade was that I was to cut timber on those two places at $12 a thousand, and he was to pay me $11 a thousand, and the other $1 was to go on the mill until I paid for the mill. He was to pay me that much. He said there would be 500,-000 feet of that timber. If I had' cut the 500,000 feet of timber for him, I was to continue to cut for him. . . The first 500,-000 feet of timber that I cut was to be cut at the sum of $12 a thousand, and I was to put $1 a thousand on the mill. $1 a thousand was to go on the mill. . . All those advances that was made to me by Mr. Hardison was to come out of that $12-a-thousand proposition, I was to pay him back for those advances he made me. I was to pay him out of the lumber that I sawed, and he was to pay me for what I sawed. He was to pay me $11 a thousand, and the other $1 was to go on the payment of the mill. . . The contract between me and him was that the title of the mill was to be in him, and I was to pay $1 a thousand on the mill until I got it paid for, and then it was to be mine. That was the contract between' me and him. I bought the mill with the understanding that I was to pay $1 a thousand out of every thousand feet of.lumber that I sawed; that was to be put in the contract. He guaranteed me 500,000 feet. He said that there would be at least 500,000 feet of lumber in that tract of land, and I was to pay $1 a thousand on the mill, which would have been $500 on the mill, and that would have left me due him $1000 and interest, and I was to go on and saw for him at other places until that mill was paid for. . . I was to get $12 a thousand to cut this particular tract of timber.”
   Stephens, J.

1. The evidence is sufficient to establish the contract sued on and a breach thereof by the defendants.

2. Whether or not the contract was reduced to a writing satisfying the statute of frauds, there appears to have been such part performance as would authorize a finding that the contract was taken out of the statute.

3. The trial court erred in overruling the plaintiff’s motion to reinstate the case after a nonsuit.

4. The trial court, when making the judgment of the Court of Appeals (31 Ga. App. 265, by which a judgment of the trial court in this case •was reversed) the judgment of the trial court, erred in not entering up judgment for $15 court costs due the State of Georgia, taxed in the remittitur and recovered in the Court of Appeals. This is true although the case had been to the Court of Appeals upon an affidavit in forma pauperis. Sigman v. Austin, 112 Ga. 570 (37 S. E. 894).

Judgment reversed, with direction.

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

There was evidence to the effect that the contract between the parties was reduced to writing, and for some reason was not signed by them. There was also evidence that the contract as reduced to writing was to the same effect as the parol agreement testified to by the plaintiff. From the evidence, it appears that the plaintiff was placed in possession of the sawmill which he claims to have purchased under the contract, and that he entered upon the land and sawed a considerable portion of the timber.

8. P. New, for plaintiff.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16199.
    PYLANT v. SCHOEN BROTHERS INCORPORATED.
    1. An ordinance of the City of Atlanta which provides that “every licensed slaughter-house shall slaughter for the public without discrimination” is valid.
    Animals, 3 O. J. p. 188, n. 47 New.
    Appeal and Error, 4 O. J. p. SJ17-34; 933-22.
    Damages, 17 0. J. p. 807, n. 78.
    Municipal Corporations, 28 Cyc. p. 730, n. 79.

      2. One who operates a licensed slaughter-house for the slaughter of animals ' for food within the limits of the City of Atlanta, and who arbitrarily and without cause refuses to slaughter animals for a member of the public, is liable in damages therefor.
    3. The petition set out a cause of action and was good as against general demurrer.
    4. Certain special demurrers were properly sustained.
    Decided February 26, 1926.
    Action for damages; from city court of Atlanta—Judge Eeid. December 6, 1924.
    Certiorari was granted by the Supreme Court.

      James W. Austin, for plaintiff.

      Walter W. Visanslca, Branch & Howard, for defendant.
   Stephens, J.

The general welfare clause in the charter of a municipality authorizes the passage of reasonable ordinances for the protection, comfort, and good government of all the people of the municipality. Crum v. Bray, 121 Ga. 709 (49 S. E. 686, 1 Ann. Cas. 991). Under the authority of the general welfare clause a municipality may, in the interest of the public health, regulate or even perhaps prohibit entirely within its limits the business of slaughtering animals for food. Since a municipality might find it to be in the interest of the public health to discourage or even prohibit entirely within its limits the private slaughter of animals, it is a reasonable regulation to provide that those slaughtering for the public do so without discrimination. An ordinance of the City of Atlanta which provides that “every licensed slaughter-house shall slaughter for the'public without discrimination” is a reasonable regulation, in the interest of the comfort and convenience of all the people of the city, and is valid under the general welfare clause in the charter of the city. It follows, therefore, that the owner and proprietor of a licensed slaughter-house operating under the authority of the City of Atlanta, whose business consists in slaughtering animals for their owners for a service charge, can not arbitrarily and without just cause refuse to render such service to any member of the public offering animals for slaughter.

This being a suit against the operator of a licensed slaughterhouse in the City of Atlanta by a plaintiff who alleges that he was a butcher and vendor of meat in the community, and that the defendant, arbitrarily and without just cause, and to the plaintiff’s damage in the destruction of his business, refused to slaughter animals offered by the plaintiff, thereby violating the provisions-of an ordinance of the city prohibiting such discrimination, the petition set out a cause of action and was good as against 'general demurrer.

There being no obligation upon the defendant to continue in business and to serve the public, and it not appearing that the plaintiff’s business was totally destroyed by the act of the defendant, the future profits inhering in the plaintiff’s business are not recoverable as items of damages. That paragraph of the plaintiff’s petition wherein such profits were alleged to be part of the plaintiff’s damage was properly stricken upon demurrer.

Certain allegations in the petition as to the amount of expenses incurred by the plaintiff in operating his business, and which the -plaintiff alleged were chargeable against his damages, were beneficial to the defendant, and the striking of the paragraph in which these allegations were made was not reversible error.

The paragraph of the petition alleging, as an item for recovery, attorney’s fees incurred by the plaintiff in the conduct of the present litigation was properly stricken on demurrer.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur.

This judgment was affirmed on July 15, 1926. 162 Ga.


text:
    16250.
    Roberts et al. v. Benson.
    Vendor and Purchaser, 39 Cye. p. 1581, n. 33; p. 1582. n. 36; p. 1965, n. 71.
   Stephens, J.

1. In a suit upon unpaid purchase-money notes representing an unpaid balance of the purchase-money agreed to be paid for land described in a bond for title as land lots Nos. 42 and 49 in a certain county, containing 405 acres, more or less, the purchaser may set off against the entire purchase price the proportionate value of that portion of the described land lots to which title has been previously vested in an adjoining landowner by virtue of an established dividing line between the two tracts. This is true although the purchaser may have known at the time that the obligor was not the owner of.all the land in the land lots, where there was no mistake in the description., Foute v. Elder, 109 Ga. 713 (35 S. E. 118); Miller v. Desverges, 75 Ga. 407; Smith v. Eason, 46 Ga. 316.

2. The issue was as to whether the land which the defendant failed to obtain fell within the described survey, and was not as to the establisliment of a dividing line between contiguous landowners. Godwin v. Maxwell, 106 Ga. 194 (32 S. E. 114).

Decided February 26, 1926.

Complaint; from city court of Dublin—Judge Sturgis. December 23, 1924.

Application for certiorari was denied by the Supreme Court.

C. C. Crochett, W. M. Clements, J. H. Milner, for plaintiffs.

George B. Davis, for defendant.

3. The charge of the court, fairly to the plaintiff, submitted to the jury all the issues presented.

4. No error of law appears. The evidence authorized the verdict found for the defendant.

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.


text:
    16391.
    Thompson v. Hanes.
    Master and Servant, 39 O. J. p. 492, n. 41; p. 517, n. 49; p. 1107, n. 9; p. 1168, n. 78.
   Stephens, J.

1. “There is no presumption of law that a minor over fourteen years of age, who applies for a position involving dangerous service, is aware of the danger and needs no instruction.” Atlanta & West Point R. Co. v. Smith, 94 Ga. 107 (20 S. E. 763).

2. In a suit by a minor, seventeen years of age, against his employer, to recover for personal injuries received while engaged in working in close proximity to a revolving circular saw, where it was alleged that the minor was feeble-minded and possessed a mental capacity below that of the average boy fourteen years of age, and could not appreciate the danger incident to the work, whether or not the plaintiff, while standing upon a foundation strewn with slippery pieces of bark, and engaged in moving lumber from an unguarded revolving circular saw as the lumber was cut, had sufficient capacity to appreciate the obvious danger of performing the work in close proximity to the saw, where he was backward in learning at school, and had no previous experience in such work, although he may have been aware of the slippery condition of the bgrk, was a question of fact for a jury; and whether or not the master, who was aware of the minor employee’s lack of experience in such work, should have known of the slippery condition of the bark and the consequent danger to the minor incident to the performance of such work, and was guilty of negligence in directing the minor to perform such work without warning the minor of the dangers incident thereto, were also .questions of fact for a jury. Girvin v. Georgia Veneer Co., 140 Ga. 405 (78 S. E. 1091); Betts Co. v. Hancock, 139 Ga. 198 (10) (77 S. E. 77). The jury might, from observation of the plaintiff, who was backward at school, have concluded that he did not possess sufficient mental capacity to appreciate the danger incident to his work. McIntyre v. Empire Printing Co., 103 Ga. 288 (29 S. E. 923).

Decided February 26, 1926.

Action for damages; from city court of Hall county—Judge Sloan. February 19, 1925.

Charters & Wheeler, for plaintiff.

Ed. Quillian, for defendant.

3. This being a suit brought by the minor employee against the master to recover for injuries to the employee, caused from slipping upon the bark and falling upon the unguarded saw while engaged in the performance of such work under the direction of the master, the evidence, under the above rulings, was sufficient to authorize a finding for the plaintiff, and the court erred in awarding a nonsuit.

4. It is immaterial that the defendant was not the actual owner of the sawmill. It is sufficient that he was the master and the employer of the plaintiff and directed the plaintiff in the performance of the duties.

Judgment reversed.

Jenkins, P. J., and Bell, J., concu/r.


text:
    16479.
    Garrard et al. v. Southern Cotton Oil Company.
    Evidence, 22 0. J. p. 188, n. 16 New.
    Frauds, Statute of, 27 0. J. p. 389, n. 92 New.
    Sales, 35 Oye. p. 273, n. 78; p. 628, n. 72; p. 632, n. 19; p. 637, n. 60; p. 649, n. 94.
   Stephens, J.

1. Where a seller, on delivery to a carrier for shipment to the purchaser of the commodity contracted for, draws a sight draft upon the purchaser for the purchase-money and causes the draft to be transmitted through a bank to a bank at the point of destination, for presentation to the purchaser, the seller impliedly consents to any reasonable or unavoidable delay accompanying the presentation and collection of the draft. Where, upon arrival of the draft at the collecting bank, the plaintiff was absent from his place of business, but paid the draft on the following day, such delay does not demand the inference, as a matter of law, that the plaintiff had failed to pay cash, as contracted for, for the commodity shipped, and therefore does not demand the inference, as a matter of law, that the seller was absolved from his contractual obligation to make future deliveries under the contract.

2. In a suit by the purchaser against the seller upon two contracts for the sale of personalty, certain correspondence between opposing counsel was properly admitted as tending to establish a written admission by counsel for the defendant, with authority from the defendant, of the existence of the contracts sued on, and therefore taking them out of the statute of frauds. Capital City Brick Co. v. Atlanta Ice Co., 5 Ga. App. 436 (63 S. E. 562).

3. A letter from the plaintiff, making demand upon the defendant for performance of the contract, was properly admitted in evidence.

4. The contract price of a commodity sold is not necessarily the market value of the commodity on the date of the sale. It follows, therefore, that evidence that the market value of the commodity increased by a certain amount between the date of the contract and the date for delivery under the contract, in the absence of evidence as to the market value on the date the contract was entered into other than the price agreed upon in the contract, and in the absence of evidence as to the market value upon the date for delivery other than the contract price named in a new contract made on that date for the sale of a commodity of the same description, is insufficient to establish conclusively without dispute the amount of damage suffered by the purchaser resulting from a breach of the contract, namely, the difference between the contract price and the market value of the commodity sold at the time and place for delivery.

Decided February 26, 1926.

Breach of contract; from Baldwin superior court—Judge Park. April 15, 1925.

STATEMENT OE EAOTS BY STEPHENS, J.

Southern Cotton Oil Company sued P. R. and W. T. Garrard as a partnership, alleging that the plaintiff, on October 23, 1922, purchased of them “two carloads of twelve tons each, white Spanish peanuts, at $80 per ton f. 0. b. Milledgeville, Georgia, to be delivered within ten days;” and that on November 2, 1922, the plaintiff purchased from the defendants “fifteen hundred bushels of peanuts or 18.75 tons f. 0. b. Milledgeville, at $95, delivery to be made within ten days, being same kind peanuts as above;” that the defendants delivered one carload of peanuts under the terms of the contract entered into on October 23, 1922, and were paid therefor, but that the defendants failed'and refused to deliver the second carload of peanuts agreed to be delivered under that contract, to the damage of the plaintiff in the sum of $360, which was the difference in the contract price for the second carload of twelve tons at $80 per ton and the same at $110 per ton, the market value at the time and place for delivery; that the defendants failed and refused to make deliveries of peanuts in compliance with the contract of November 2, 1922, although the plaintiff had demanded of them performance of this contract, to the plaintiff’s damage in ' the sum of $281.25, which was the difference in the contract price of 18.75 tons at $95 per ton and the same at $110 per ton, the market value at the time and place for delivery. The defendants filed a general denial. The plaintiff’s petition was silent as to whether either of the contracts sued upon was oral or was in writing. There was no plea setting up the statute of frauds. It appears from the record that the defendants moved for a nonsuit on the ground that the contract of November 2, 1922, was not in writing as required by the statute of frauds, and the motion was overruled. There was no exception to the overruling of this motion.

5. There being no evidence that the time for delivery, as provided for in the first contract, which was within ten days after its execution on October 23, 1922, had been extended beyond that period to November 9, 1922, or any other date, the damages for a breach of that contract must be determined with reference to the time for delivery specified therein. Since, under the ruling in paragraph 4 above, the evidence does not conclusively establish the amount of damages resulting from a breach of the fii;st contract, the court erred in directing the verdict for the plaintiff as respects this contract.

6. The evidence demanded a verdict for the plaintiff in a definite amount for a breach of the second contract sued upon, namely, the contract dated November 2, 1922.

7. No error, except as indicated above, appears.

Judgment, reversed.

Jenhins, P. J., and, Bell, J., concur.

It appears from undisputed evidence that the parties contracted as alleged in the petition, but that the contracts were not in writing; that the only performance by the defendants consisted in delivering one carload of peanuts.as contracted for under the contract of October 23, 1922; that in payment therefor a draft was drawn through a bank in Milledgeville by the agent of the plaintiff, directed to the plaintiff and payable to the defendants, which draft the Milledgeville bank transmitted to its correspondent bank in Macon, whence it was finally transmitted to a bank in Greensboro for collection; that when the bank in Greensboro notified the office of the plaintiff in Greensboro of the draft, the bank was informed that the draft would be paid the next day; that on the next day, which was November 8, the draft was paid by the plaintiff at the bank in Greensboro; that on November 9 the defendants, who were loading a car in Milledgeville, preparatory to making a delivery of a second carload, took the peanuts out of the ear and failed to ship any more peanuts under either of the contracts, excusing this action upon the ground that the draft had not been paid.

The testimony of R. S. Patillo, a witness for the plaintiff, which was undisputed, was in part as follows: “The market value on November 9, 1922, f. o. b. cars Milledgeville, was $110 a ton. Peanuts never went below $110 until this last spring, in July. . . Between October 23, 1922, and ten days later, which would put it to the second of November, 1922,—between those dates the advance in the market value of white Spanish peanuts f. o. b. cars Milledgeville was $15 a ton. November 2 would make a great deal of difference, because I bought two cars on two different days and made $15 a ton difference.” No evidence was introduced to show the market price of peanuts at any time between October 23, 1922, and November 2, 1922, the period within which delivery was to have been made under the terms of the first contract, other than the contract price of $95 per ton in the contract of November 2, nor was there any evidence, other than the contract price agreed upon in the contract dated October 23, to establish the market value on that date.

The court directed a verdict for the plaintiff for the full amount sued for under both contracts. The defendants made a motion for a new trial, excepting to the admission of certain evidence, as indicated in the syllabus, and to the direction of a verdict. The motion for a new trial was overruled.

Allen & Pottle, for plaintiffs in error.

Sibley & Sibley, contra.


text:
    16520.
    Grand Lodge Knights of Pythias v. Massey.
    Beneficial Associations, 7 C. J. p. 1128, n. 77 New.
    Corporations, 14a C. J. p. 809, n. 28; p. 812, n. 72 New.
    Process, 32 Cye. p. 434, n. 25; p. 525, n. 28; p. 532, n. 84.
   Stephens, J.

1. Where the defendant is described in a petition as “the Grand Lodge, Knights of Pythias of Georgia, under the jurisdiction of the Supreme Lodge Knights of Pythias of N. A., S. A., B., A., A., and A.,” a process attached which is directed to “the defendant, Grand Lodge of Knights Pythias of Georgia,” is directed to the defendant named in the petition and is not void as being directed to a different person. If the process is defective, it is not for this reason invalid, as such defect is curable by amendment. Civil Code (1910), § 5709; Baldwin, Starr & Co. v. McMichael, 68 Ga. 828; Smith v. Morris, 29 Ga. 339; Scudder v. Massengill, 88 Ga. 245 (14 S. E. 571).

2. A return of service of a petition and process made by a sheriff which recites that he has served the defendant, a corporation, by personally serving a named person, imports a legal service upon the corporation, as required under section 2258 of the Civil Code (1910), and therefore that the person served was a person, as an agent or officer of the corporation, upon whom legal service could be perfected. Williams v. Atlanta National Bank, 31 Ga. App. 212 (4) (120 S. E. 658), and cases there cited. This is true although the return of service does not affirmatively recite that the person served was an officer or agent of the corporation. An affidavit of illegality, attacking the service upon the ground that the individual served was not an officer or agent of the defendant corporation, is insufficient in the absence of a traverse of the officer’s return.

Decided February 26, 1926.

Affidavit of illegality; from city court of Dawson—Judge Edwards. April 13, 1925.

B. D. Feagin, for plaintiff in error.

H. A. Wilkinson, contra.

3. A subordinate lodge of a fraternal organization is capable of being the agent of the grand lodge of the organization; and, where such is the case, service upon the grand lodge may be perfected by serving the subordinate lodge through one of the officers of the subordinate lodge. Springfield Fire Ins. Co. v. Price, 132 Ga,. 687 (2) (64 S. E. 1074) ; National Council, Junior Order v. Evans, 34 Ga. App. 701 (131 S. E. 121).

4. Where the return of service upon a petition and process made by a sheriff recites he has served “the defendant by personally serving McGhee Williams, chief executive officer of a local lodge, to wit: Ella James Lodge No. 9 of the Knights of Pythias of North America, a subordinate lodge of the defendant, with a copy of the within petition and process of date of March 11th, 1922,” an affidavit of illegality, attacking such service upon the ground that the individual served was not in fact at the time of service an agent or officer of the defendant corporation, is, where no traverse of the return of service is filed, insufficient as against a demurrer.

5. The affidavit of illegality may, however, in the absence of a traverse of the return of service, go behind the judgment and return of service and show a want of jurisdiction in the court to render the judgment upon which the execution issued. McKnight v. Wilson, 158 Ga. 153 (122 S. E. 702); Perry v. Tumlin, 161 Ga. 392 (131 S. E. 70); Maund v. Keating, 55 Ga. 396. A meritorious ground alleging want of jurisdiction is set out in the affidavit of illegality, where it is alleged that at the date of filing the suit the defendant was a corporation chartered by the authority of the State of Georgia, with its principal place of business in another county, and had no office, agent, or place of business in the county in which the suit was filed, that the person served with the petition and process was not at the time an agent of the defendant, and that the defendant was in default, had never pleaded to the suit and had never appeared to defend the suit, and had never authorized anyone to plead or appear for it.

6. The affidavit of illegality, in so far as it alleges matter in defense to the plaintiff’s ease as made in the petition, sets out no ground of illegality.

7. Under the ruling made in paragraph 5 above, the court erred in sustaining the demurrer to the affidavit of illegality.

Judgment reversed.

Jenhins, P. J., and Bell, J., concur.


author: Bloodworti-i, J.

text:
    16657.
    HOME INSURANCE COMPANY v. HEAD.
    A contract of fire insurance, to be binding, must be in writing; but delivery is not necessary if in other respects the contract is consummated.
    Eire Insurance, 26 O. J. p. 45, n. 93; p. 58, n. 83.
    Decided March 2, 1926.
    Complaint; from Jackson superior court—Judge Stark. June 13, 1935.

      Egbert Beall, for plaintiff.

      Pemberton Gooley, for defendant.
   Bloodworti-i, J.

Section 2470 of the Civil Code of 1910 provides that a contract of fire insurance, “to be binding, must be in writing, but delivery is not necessary if in other respects the contract is consummated.” In this case it appears that an application was made to the agent of the plaintiff in error for an insurance policy to cover certain property for five years; that the first premium was paid in cash and a note given for the remainder, payable in four equal annual installments, and that an insurance policy was written in accordance with the application. After the first installment on the note fell due a disagreement arose as to the second payment, and suit on the note was brought by the insurance companji-, for the full amount thereof. The defendant denied liability. On the trial of the case the judge charged the jury in part as follows: ' “Now, on the first matter (the issue raised by the defendant that he has never received any insurance policy for which the note was given), it is for you to determine from the testimony in this ease whether or not Mr. Story was the agent of Mr. Head, as Well as the agent for the insurance company. If he occupied the dual position,—that is, if he was agent both of the insurance company and Mr. Head,—any application [in applying?] for the insurance, then, if you believe that the policy was delivered to Mr. Story, and he occupied that dual position of being agent for both, that, in law, would be delivery by the agent of the policy to Mr. Head.” Ho question is raised as to the' authority of the agent to write the policy. Hnder the facts of the case the contract was consummated when the policy was written; and, as the actual delivery thereof was not essential to its validity, the foregoing excerpt from the charge is error, requiring the grant of a new trial. It is not necessary to consider the other allegations of error.

Judgment reversed.

Broyles, G. J., and LuTce, J., concur.


author: Bloodworth, J.

text:
    16676.
    CENTRAL OF GEORGIA RAILWAY CO. v. WRIGHT, comptroller-general.
    The judge of the superior court did not err in refusing to recommit the case to the auditor, nor in “overruling and disallowing all of the exceptions of fact and all exceptions of law as amended,” nor “in making the findings of the auditor the judgment and decree of the court.”

      (а) Section 513 of the Civil Code of 1910 names nine purposes for which taxes may be levied, and wlien a tax is levied for any one of these nine purposes it includes all items named in that purpose.
    (б) It is generally held that counties and municipal corporations are liable for money had and received by them and applied beneficially to their authorized objects, although the contract by which the money was obtained was unauthorized by law.
    (c) County warrants are not such claims as are required by section 411 of the Civil Code to be presented within twelve months after they accrue.

      [d) The statute of limitations does not begin to run against county warrants until a demand for payment is repudiated or a fund out of which they can be paid is provided.
    Counties, 15 C. J. p. 559, n. 77; p. 609, n. 97, 98 New; p. 635, n. 86; p. 639, n. 17 New; p. 648, n. 69.
    Municipal Corporations, 28 Cyc. p. 669, n. 89.
    Taxation, 37 Cyc. p. 976, n. 99.
    Decided March 2, 1926.
    Affidavit of illegality; from Meriwether superior court—Judge Roop. May 11, 1925.

      Application for certiorari was made to the Supreme Court.
    On March 4, 1924, William A. Wright, comptroller-general, in behalf of Meriwether county, issued a tax fi. fa. against the Central of Georgia Eailway Company for $2488.32 for county taxes for the year 1923 (the Central having paid to the county all of its 1923 taxes except this amount). The fi. fa. was levied on certain property of the defendant, and the defendant filed an affidavit of illegality. The papers were returned to the superior court, and on motion the case was referred to an auditor, with all the powers given him by section 517 of the Civil Code of 1910. The affidavit of illegality was amended by the railway company. The auditor rendered a report against the affidavit of illegality, and the railway company filed a written motion to reiefer the case to the auditor, and also filed exceptions both of fact and of law to the auditor’s report. Later the defendant filed an amendment to its exceptions of fact and of law, which was allowed. The judge of the superior court overruled the motion to rerefer the case to the auditor, overruled all exceptions of fact and of law, and rendered a judgment making the finding of the auditor the judgment of the superior court, and assessing costs against the defendant. The railroad company excepted.

      Arnold & Battle, for plaintiff in error.

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

(After stating the foregoing facts.) The tax levied for Meriwether county for 1923 contains ten items. Items 1 and 2 only are attacked by the affidavit of illegality. These items are: “1. To pay legal indebtedness of said county, due or past due or to become due, during the year 1923, including bonds and interest on same issued for building the court-house. .002515. per cent, or $2.51 1/2 per $1000.” “2. To build or repair courthouses, jails, bridges, ferries, or other public improvements, according to the contract. .005730 per cent, or $5.73 per $1000.00.” In the affidavit of illegality it is alleged that each of these items was excessive, and each item was uncertain because levied for “several separate and distinct” purposes, and the per cent, for each of these purposes was not stated, and they were levied for the purposes stated as a subterfuge, and the money raised thereunder was actually used for the expense of the chain-gang and the public roads. Are these allegations of the affidavit of illegality true? A determination of this will settle whether or not the execution is proceeding illegally.

The insistence that certain items were levied as a subterfuge we do not think deserves serious consideration. And there is no merit in the contention of the railroad company that these items of the levy are uncertain because levied for different purposes and the per cent, for each of these purposes was not named. Item 1 is substantially in the language of section 513 (1) of the Code of 1910,. except that there are added the words, “including bonds and interest on same issued for building- the court-house.” The defendant is not contesting the legality of the levy for the payment of the bonds and interest thereon. Item 2 of the levy follows section 513 (2) of the Code of 1910. So it appears that the defendant is insisting that when a county levies taxes “to pay legal indebtedness of said county, due or past due or to become due,” or levies taxes “to build or repair court-house, jails, bridges, ferries, or other public improvements,” it should specify the different purposes and the per cent, of each for the several items named in these subdivisions of this section of the code. That is not necessary. This section names nine general purposes for which taxes may be levied. When a tax is levied for any one of these nine items all the purposes named in that particular item are embraced in the levy. In Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173), the Supreme Court said: “In Mitchell v. Speer, 39 Ga. 56, it was said: Tt is clearly the intent of the code . . that the county taxes shall be assessed specifically for the several purposes authorized by law. . / Every order assessing a tax should specify the per cent, laid for each of the nine specific purposes mentioned in section 5Ji8” (Civil Code of 1910, § 513). (Italics ours.) To the same effect is a statement in the case of Albany Bottling Co. v. Watson, 103 Ga. 506 (2) (30 S. E. 270). In that case Justice Little said also: “Every order assessing a tax should specify the per cent, laid for each of the nine specific purposes mentioned in section 548” (Civil Code of 1910, § 513). The original record of file in the office of the clerk of the Supreme Court will show that in the case of McMillan v. Tucker, 154 Ga. 154 (113 S. E. 391), the tax levy was practically in the language of section 513 of the Civil Code of 1910 as to the several items named therein, and in no item was there any more specific statement as to the object of the levy than is made in the code, -or as to the per cent, for each purpose than that named at the beginning of each item; as, for example, “39 cents on the $100.00 to build and repair bridges, repair court-house and jail, and for all other improvements, by the purchase of necessary material and the hiring of the necessary labor.” The plaintiffs insisted that the levy in that case was illegal for'several reasons, and was null and void and of no effect for the further reason that the order levying the said tax was not in compliance with the law, in that the said order does not specify the per cent, of the State tax levied for each specific purpose in said order named as by law required. In passing upon that case the Supreme Court said (p. 168) : “The second objection to the validity of this tax levy is that each item of the tax so levied does not specify the per cent, of the State tax levied for each of the specific purposes named. Counsel for plaintiffs in error rely on the cases of Mitchell v. Speer, 39 Ga. 56, Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 270), Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173), and Butts County v. Jackson Banking Co., 136 Ga. 719 (71 S. E. 1065). None of these cases sustain the position of counsel for plaintiffs. These cases simply hold that the tax levy for the specific purposes mentioned in the Civil Code (1910), § 513, shall not'be levied in gross sums, but that the per cent, levied for each of these purposes shall be specified in the order. The ease of Albany Bottling Co. v. Watson, just cited, did not involve a tax on property, but only a business tax. An assessment which gives the cents levied upon each one hundred dollars of property for each of these purposes is a substantial compliance with this provision of the code.” Thus it appears that the tax levy as made was a substantial compliance with the provisions of the code. In Gaines v. Dyer, 128 Ga. 594 (58 S. E. 179), Justice Atkinson said: “The Political Code, § 404 (§ 513 of the Code of 1910), contains nine purposes for which taxes may be levied by the county authorities. Among the purposes mentioned is that of taxation in order to provide funds for the building of public bridges. The item of the levy which is objected to is in the language of the code, and sufficiently specifies the purpose for which the levy was made.” In Commissioners of Habersham County v. Porter Mfg. Co., 103 Ga. 619 (30 S. E. 550), Justice Cobb, referring to a tax levy to pay “other lawful charges against the county,” said: “The legislature having granted the power in this general way, we can not say that a levy which is in the exact language of the statute is so indefinite that it should be enjoined. While this question was not directly passed upon, the view above presented is deducible from what is said by Judge McCay in the case of Mitchell v. Speer, 39 Ga. 56.”

Were the levies under items 1 and 2 excessive? The law presumes a tax to be legal, and the burden is on the party attacking it to prove otherwise. Wright v. Southern Railway Co., 146 Ga. 582 (7) (91 S. E. 681); Blalock v. Adams, 154 Ga. 326 (3), 333 (3) (114 S. E. 345); S. A. L. Ry. Co. v. Wright, 32 Ga. App. 258 (122 S. E. 900). County expenses can not be anticipated exactly, and the law gives to the county authorities a broad discretion in this regard. McMillan v. Tucker, 154 Ga. 154 (3) (113 S. E. 391). This discretion will not be disturbed by the courts unless manifestly abused. In Commissioners of Habersham County v. Porter Mfg. Co., supra, Justice Cobb said (p. 617) : “The discretion vested in the county authorities must be from the nature of the case a broad one, and therefore the reviewing power of the judge of the superior court must be exercised with caution, and no interference had unless it is clear and manifest that the county authorities are abusing the discretion vested in them by law. See Barlow v. Ordinary of Sumter County, 47 Ga. 639; Waller v. Perkins, 52 Ga. 233.” In determining whether or not the county authorities abused their discretion in making levies for .taxes, we can take into consideration conditions as they presented themselves at the time of the levy as well as the amount actually raised by it. The record shows that the county had 950 miles of public highways, more than 400 bridges, many of them across large streams and several that crossed Flint river. The evidence showed that the bridges needed repairs, as did the court-house and other public buildings. The record shows also that when the commissioners met to, fix the tax rate for the year 1923, they discussed the indebtedness of the county, the amount necessary to repair the court-house, the jail, the bridges, and malee other public improvements, and that the tax levy was made in the light of the information which they then had. G. A. Huddleston, clerk of the board, swore that the commissioners “figured the needs they would have for the year 1923, and made the levy accordingly. . . To the best of my recollection they figured that it would take something like $2500 to put a new roof on the court-house. . . They figured cn repairing the jail.” This witness testified that when the commissioners got together in 1923 to levy this tax they discussed various amounts as to what it would require to fix the court-house, jail, build and repair bridges, and make other public improvements in the county. He swore also: “1 heard Mr. Gaston, chairman of the board, say it would take $25,000 to fix the bridges he had in mind to fix at that time. . . They contemplated doing all of these repairs during the year 1923 or as soon as they could get to them. They said at the September meeting that they were going to attempt to do it during the current year. On January 1, 1923, Meriwether county owed something like $38,000 or $40,000. These obligations were incurre'd by warrants that had been issued by the county to pay debts of the county, . . legal debts, little warrants that had been issued all through 1922.” In addition to the above, one of the court-house bonds and the interest thereon, amounting to $1400, was provided for in this levy. In view of these facts can it be said that the levy under either item number 1 of $2.51 1/2 per thousand or under item number 2 of $5.73 per thousand, was excessive, the total property subject to taxation being $5,411,580? The amount actually raised under item 1 was $10,908.18, and under item 2 was $25,080. The auditor found that under item 1 a tax could be legally levied to pay the following:

Court-house bond ................................$ 1000.00

Interest on court-house bond........................ 400.00

Liability to Mrs. B. M. Leverett..................... 2000.00

Liability to W. M. McClendon ...................... 5000.00

Amount paid Dixie Metal & Culvert Co. in March, 1923. 1000.00

Amount due LaGrange Banking & Trust Co. in May, 1923, on Hunt contract ......................... 1000.00

Amount paid W. G. Cleavland Co. in May, 1923, on Hunt contract ................................. 1376.00

Amount paid LaGrange Banking & Trust Co. in July, 1923, on Hunt contract ......................... 7000.00

Total.................................$18,776.00

In its endeavor to show that item 1 was excessive the railroad company insists that the only portion of the levy under this item which was legal was' that for bonds issued for building the courthouse and the interest thereon, and that the other items were improperly classified as “indebtedness of said county due or past due or to become due.” With this contention we can not agree. The amount paid the Dixie Metal & Culvert Company was on a claim originating in 1922, and comes cleai’ly under the ruling in Wilson v. Gaston, 141 Ga. 770 (1 b) (82 S. E. 136), and Voris v. Early County, 25 Ga. App. 650 (104 S. E. 89). In each of these cases the appellate court held that where a county allowed a legal claim to go by default in the year in which it was created, this would not prevent the county making provision for its payment during the next year. The Leverett and McClendon claims were for money borrowed in years previous to 1922. .While notes had been given these parties, they were void and unenforceable. It appears, however, that these claims were originally for legal expenditures for which the county was liable and for which warrants had been issued, and that the holders of these warrants had a right of action against the county for money had and received. The treasurer testified that the money received from these parties was deposited in the Greenville Bank and used to take up warrants and indebtedness of the county that had not been paid.

In Butts County v. Jackson Banking Co., 129 Ga. 801 (82 S. E. 136), headnotes 3 and 4 are as follows: “An action for money had and received may be maintained by one who has loaned money to a couffiy, and which has been used by it to discharge a legally incurred liability for a current expense, although the governing official or officials of a county have no authority to borrow the money or to give a note therefor. Where a county incurs a lawful liability for a current expense, and issues its warrant on the treasury for its payment, and subsequently procures another to pay the same out of a loan which he makes to the county, upon disaffirmance of the illegal loan by the county the lender is subrogated to the rights of the warrant holder whose warrant was paid ©ut of the proceeds of the illegal loan.” In discussing that case Presiding Justice Evans said (pages 807, 808, 810): “In all cases considered by this court since the adoption of the constitution of 1877, the borrowing of money by counties (not to supply a casual deficiency of revenue) has been treated as forbidden by the constitution. Mason v. Comm'rs of DeKalb County, 104 Ga. 35; Hall v. Green, 119 Ga. 253; Town of Wadley v. Lancaster, 124 Ga. 354. We therefore think that the contract of loan, in pursuance of which the notes to the defendant in error were executed, 'is violative of article 7, section 7, paragraph 1, of the constitution, and that the notes aré not enforceable against the county. Counsel for plaintiffs in error contend that the- illegality^ of the notes pervades the whole transaction, and bars a recovery of the money, even though beneficially applied to a lawful purpose: To this contention- we can not give our assent. It is very generally held that counties and municipal corporations are liable for money had and received by them and applied beneficially to their authorized objects, although the contract bjr which the rnoiiey was obtained was unauthorized by law. Allen v. LaFayette, 89 Ala. 641; Salt Lake City v. Hollister, 118 U. S. 256; Parkersburg v. Brown, 106 U. S. 487; Dill. Mun. Cor. § 126; 20 Am. & Eng. Enc. L. (2d ed.) 1158; Luther v. Wheeler, 73 S. C. 83. The principle of liability rests upon the theory that the obligation implied by the law to pay does not originate in the unlawful contract, but arises from considerations outside of it. In ascertaining the quantum of liability the amount of the loan is not taken into account, but the measure of recovery is the money actually applied to lawful municipal or county uses. The obligation to account for money received by the county and actually devoted to lawful purposes rests upon the broad principle of common honesty, which will not permit the county to retain the benefit of money lawfully applied to its use, and at its request, simply because the county lacked the power to borrow the money. . . If a legal liability for a current expense is incurred, and the county issues a note or a bond to pay for it, the note or bond is void. The creditor can not enforce such invalid note or bond by suit, but he can enforce the payment of the county’s primary liability to him. If the county received the money borrowed by its officers without authority, and applied it to the purchase of property which it was authorized to buy and hold, or to defraying any other liability which it could legally incur, the lender would stand in the same relation to the county as the person to whom his money was paid.”

In Peed v. McCrary, 94 Ga. 488 (21 S. E. 232) (4), the court said: “Although it may be true that the constitution, of its own vigor, does not confer power to borrow money by temporary loans to supply casual deficiencies of revenue, yet where the money of a lender has actually been applied to the legitimate uses of a county, that is, to objects to which county revenue may rightly be devoted, it is lawful *to repay the loan out of the county treasury when funds for the .purpose are on hand, with seven per cent, interest thereon.” In Sheffield v. Chancy, 138 Ga. 686 (75 S. E. 1116), Justice Beclc said: “If a debt is legal and legally incurred, and is not paid at the time when it falls due, it remains a legal debt and ranks as an accumulated debt.” In Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136), Justice Atkinson said (pp. 771, 772) : “The validity of the contract was not destroyed by reason of the diversion of the funds provided for its payment, under the circumstances above enumerated; but, notwithstanding such diversion, the obligation of the county to pay continued to exist. McCord v. City of Jackson, 135 Ga. 176 (5), 177 (69 S. E. 23). After default in payment of the warrant the county was in a condition of having a valid, overdue obligation, and without funds to meet it. What was the duty of the county under these circumstances ? The law provides that a tax may be levied to pay the legal indebtedness of a county due, or to become due during the year, or past due. Civil Code, § 513 (1).”

The amounts paid the LaGrange Banking Company and W. G. Cleavland Company were for three warrants isssued to G. W. Hunt for building a county road prior to 1922. By indorsement Hunt transferred two of these warrants to the LaGrange Bank and the other to Cleavland Company. These warrants were for a legal debt of the county, and the holders thereof were subrogated to the rights of Hunt, who built the road. As the only question before the court in the Wilson and Voris cases, supra, was whether or not the county authorities were authorized to levy a tax to pay certain debts during the next succeeding year after the debts were contracted, these cases are not authority to support the contention made by the railroad company in regard to the claims of Leverett, McLendon, The LaGrange Banking Company, and the Cleavland Company, that if these claims were taxable at all under any head, they were only taxable in the year immediately succeeding the year in which the liability was incurred. If such is the construction to be put upon the ruling in these cases would not the provisions of section 507 of the Civil Code of 1910 be a “dead letter?” That section is as follows: “When debts have accumulated against the county, so that one hundred per cent, of the State tax, or the amount specially allowed by local law, can not pay the current ex: penses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, every year.” That section clearly provides that the county under certain contingencies may have four years in which to pay its accumulated debt. When do debts accumulate? When they are due or past due. Counsel for plaintiff in error in their brief contended that “if the Leverett and McLendon obligations were taxable at all in 1923, the obligations themselves, not being debts, could not be taxable under the head of debts, but should be taxable under paragraph 9, section 513 of the Civil Code of 1910, reading as follows: ‘To pay any other lawful charge against the county/ ” This question is settled adversely to the contention of counsel for plaintiff in error by the principle announced in the cases of Butts County v. Jackson Banking Co., Peed v. McCrary, and Wilson v. Gaston, supra, and especially by the decision in Seaboard Air-Line Ry. Co. v. Wright, 157 Ga. 726 (5) (122 S. E. 37), where it was held: “Subdivision 1 of section 513 is intended to cover and does cover the entire item of a tax levy ‘to pay the legal indebtedness of the county due, or to become due during the year, or past due/ Under the terms ‘due’ and ‘past due’ is embraced, necessarily, the ‘accumulated indebtedness’ of the county. Indebtedness of the county ‘due’ or ‘past due’ may possibly be more extensive, in the last analysis of those expressions, than ‘accumulated indebtedness,’ but ‘accumulated indebtedness’ can not be more extensive than the aggregate of the indebtedness which is due and that which is past due. And consequently a tax for the purpose of paying ‘accumulated indebtedness’ is provided for exclusively under subsection 1 of section 513 of the Civil Code; and it follows that a tax for the purpose of paying accumulated indebtedness, as allowed under section 507 of the Civil Code, can not be lawfully levied under item 9 of section 513, which authorizes a levy ‘to pay any other lawful charge against the county.’ ”

Counsel for plaintiff in error insist that “there is another reason why the Leverett and McLendon obligations were not taxable under any head in 1923. Under section fill of the Civil Code a claim against a county, to be enforceable, must be made within twelve months from the time of the accrual of the obligation for which the claim was made. . . In other words, in 1923 both of these claims were barred and were not legally taxable under any head.” As warrants had been issued to each of these parties, under the holding in Jackson Banking Co. v. Gaston, 149 Ga. 31 (99 S. E. 30), there is no merit in this contention. The record in that case shows that the petition was filed in September, 1915, praying that the sole commissioner of Butts County be compelled by mandamus to pay county warrants issued in 1906, and which were held by the bank. In the statement of facts we find that “the defendant interposed a demurrer based on the ground that the petition set out no cause of action, and showed on its face that it was barred and that the “claim’ had not been presented within twelve months.” The Supreme Court held: ““The suit was not barred by the statute of limitations, which begins to run only when demand for payment is repudiated or from the time when a fund out of which the warrants can be paid is provided. Justices v. Orr, 12 Ga. 137, 141; Barnes v. Turner, 10 L. R. A. (N. S.) 478 (14 Okla. 284, 78 Pac. 108, 2 Ann. Cas. 391). County warrants are not such “claims’ as are required to be presented within twelve months after they accrue or become payable, as required by the Civil Code, § 411. Dement v. DeKalb County, 97 Ga. 733, 735 (25 S. E. 382) ; Butts County v. Wright, 136 Ga. 697 (71 S. E. 1046).”

• While there may be some slight errors in the ruling of the auditor, they are not of such materiality as to affect his general findings. The judge of the superior court did not err in refusing to rerefer the case to the auditor, nor in ““overruling and disallowing all of the exceptions of fact and all exceptions of law as amended,” nor ““in making the findings of the auditor the judgment and decree of the court.”

Judgment affirmed.

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


author: Luke, J.

text:
    16811.
    CLAXTON BANK v. WAY.

    Dissolution of the garnishment by giving bond did not prevent the garnishee from showing that the fund in its possession was not subject to the debt.
    On tile issue as to whether the fund in the bank was the individual property of the defendant or was held by him merely as agent, the evidence was in conflict, and the question should have been submitted to the jury. The court therefore erred in directing a verdict against the garnishee.
    Garnishment, 28 C. J. p. 316, n. 26; p. 366, n. 6ó New.
    Decided March 2, 1926.
    Garnishment and claim; from city court of Claxton—Judge Burroughs. August 18,-1935.

      W. G. Warnell, C. L. Cowart, for plaintiff in error.

      P. M. Anderson, contra.
   Luke, J.

C. R. Way sued A. Walpert, and caused summons of garnishment to be served upon the Claxton Bank. By its answer as amended the bank admitted having a large deposit to the credit of Walpert, but set up that the deposit was in truth the property of Latham Cotton Company, Walpert being the agent of that company and having possession of the fund solely as agent for it. Way traversed the answer of the garnishee. Walpert dissolved the garnishment by filing the statutory bond. Evidence was introduced, and the court directed a verdict finding the fund in controversy subject to the garnishment, and rendered a judgment accordingly.

The evidence did not demand the verdict directed. The amended answer of the garnishee and the traverse thereto raised a question of fact, to wit, whether the fund in1 the bank to the credit of Walpert was his individual property or whether it was the property of the Latham Cotton Company. IJpon this question the evidence was in conflict, and the question should have been submitted to the jury, and the court erred in directing a verdict against the garnishee. See, in this connection, Spain v. Beach, 53 Ga. 494.

The dissolution of the garnishment by the giving of a bond did not prevent the garnishee from showing that the fund in its possession was not subject to the debt. Born v. Williams, 81 Ga. 796 (2) (7 S. E. 868).

Judgment reversed.

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


text:
    16901.
    ALABAMA GREAT SOUTHERN RAILROAD CO. v. BUCHANNON & CRISP.
    The question whether the presumption of negligence raised by proof of the killing of a dog by the running of a locomotive is rebutted is essentially for determination by a jury; and since the jury in this case could have legitimately concluded, from the evidence, that the employees of the railroad company failed to exercise ordinary care to discover the dog upon the track and to avoid killing it, the verdict against the company can not be disturbed by this court.
    Appeal and Error, 4 O. J. p. 852, n. 56.
    Railroads, 33 Cyc. p. 1215, n. 42; p. 1274, n. 16; p. 1276, n. 29; p. 1305, n. 39.
    Decided March 2, 1926.
    Appeal; from Dade superior court—Judge Tarver. October 10, 1925.
    McClure, Hale & McClure, Maddox, $laddox & Mitchell, for plaintiff in error.

      B. T. Brock, contra.
   Luke, J.

This is a suit for damages for the alleged negligent killing of a dog by the defendant’s south-bound passenger-train. A justice of the peace rendered a judgment for plaintiffs, the case was appealed to the superior court, and a jury in that court found for plaintiffs. The overruling of defendant’s motion for a new trial based solely upon the general grounds brings the case to this court.

The only eye-witness (sworn for the plaintiff) testified substantially as follows: “I was in the yard and happened to look up when the train run, and I seen the dog come out just as it hit him. He was about 150 yards, or 100 yards, from the crossing. Don’t think I heard any whistle. If I did, I don’t remember it. . . The dog was on the railroad right this side of the crossing. There were two other dogs there. They were running something in the field there that morning. The dogs had just got over the track. Just as I looked up, the train hit the dog. I don’t know whether it had been on the track or not. I could hardly say except that it hit him. They were all in sort of a bunch together. This dog must have been about the middle of the track when it knocked him off. I think the crossing was a private one. People used it. It had been a public crossing. The railroad on each side is fenced. There is a cattle-guard at this gate. The engine was right on my dogs when I seen them,—must have been right on them. Could not see the dogs for the steam coming out of the engine. Seems this dog was kind of in front of the other dogs, in front of my dogs, and mine got out of the way and this one didn’t. I heard them over there in the field adjoining the railroad. They were somewhere in that field running when I heard them. I didn’t hear the train when I saw the dogs running. It must have been thirty minutes until I heard the train coming. Just happened to look up and see it hit the dog. Wasn’t any time at all until the engine hit the dog.”

The engineer testified that he rode on the right side of the engine, that he could not have seen the dog if it came upon the track within fifty feet of the engine, that he did not see the dog at all, that he only knew of the killing when told about it later, that he could have seen the dog on the track a distance of 150 yards ahead of him, and that he did not think the crossing below which the dog was killed was a public crossing. He testified: “I am to look out all the time and to observe anything and everything that might present itself on the track. I was looking out when I went down there. I am looking for anything that may present itself on the track. I have a pretty good steaming engine, and steam is always there. There is also a steam-gauge pop-valve. When it gets too much it pops off. It don’t get too low on that run.” The fireman’s position was on the left side of the engine. Nearly all his time was taken up with firing, and he did not see the dog. He knew the crossing near which the dog was said to have- been killed. There was a slight down-grade there, and the train could hardly have been stopped within a distance of 150 yards.

A prima facie case was made for plaintiffs by proof that the dog was killed by the defendant’s locomotive, and there should have been a recovery unless the company made it appear that its agents exercised “all ordinary and reasonable care and diligence.” Civil Code (.1910), § 3780. It was the duty of the company, through its delegated agents or employees, to keep a lookout ahead of the train and to use ordinary and reasonable diligence to discover the dog upon the track and to avoid injuring it. Ga. R. & Bkg. Co. v. Churchill, 113 Ga. 12 (38 S. E. 336); Civil Code, § 3780, supra. The defendant contends that the evidence of the only eye-witness stows that the dog came suddenly upon the track immediately in front of the engine, that the occurrence was an unavoidable accident, and that under the following decisions cited by him there could have been no recovery: So. Ry. Co. v. Thompson, 129 Ga. 367 (58 S. E. 1044); Macon, Dublin & Savannah R. Co. v. Hamilton, 9 Ga. App. 254 (70 S. E. 1120); A. C. L. R. Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268) ; Central of Ga. Ry. Co. v. O’Neal, 11 Ga. App. 461 (75 S. E. 674). We can not agree with the defendant. We think that a careful reading of the testimony of the eye-witness to the killing shows that the jury could have legitimately reached the conclusion that he suddenly looked up and saw practically nothing of the transaction except the knocking of a dog off the track. In view of the fact that neither the engineer nor the fireman saw, or was conscious of the occurrence at the time, and that their material testimony was largely hypothetical and opinionative, we can not say that the jury were bound to conclude that the employees of the railroad company used ordinary and reasonable care and diligence to discover the dog upon the track and to avoid injuring it. See Ga. So. & Fla. Ry. Co. v. Converse, 29 Ga. App. 411 (116 S. E. 20); Seaboard Air-Line Ry. Co. v. McDonald, 19 Ga. App. 627 (2) (91 S. E. 1053).

Judgment affirmed.

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


text:
    16909.
    Smith et al. v. International Lawyers.
    Attorney and Client, 6 C. J. p. 713, n. 55; p. 716, n. 93,
   Luke, J.

A petition against a firm of attorneys at law which substantially alleges that the plaintiff, a collecting agency, caused various clients to forward their claims to the said firm of attorneys for collection, that the said firm collected the claims and failed and refused to pay over the money collected, that the said agency reimbursed the said clients for the said money, and that the defendants were indebted to the said agency for the money so expended by it, does not show that the relation of attorney and client existed between the said agency and the defendants in regard to the said claims, and therefore does not set out such a state of facts as will sustain a petition for a rule under section 4954 of the Civil Code (1910), brought by the said agency directly against the said attorneys. The court erred in overruling the general demurrer of each of the two defendants. Haygood v. Haden, 119 Ga. 463 (46 S. E. 625) ; Haden v. Lovett, 133 Ga. 388 (65 S. E. 853); Knight v. Rogers, 22 Ga. App. 308 (95 S. E. 997).

Decided March 2, 1926.

Rule; from Berrien superior court—Judge Knight. September 22,1935.

Jeff. 8. Story, W. B. Smith, E. D. Bivers, for plaintiffs in error.

William Story, contra.

(es) The court having erred in overruling the general demurrers, the trial oí tne case thereafter was nugatory.

Judgment reversed.

Broyles, G. J., o/nd Blood/worth, J., eonour.


text:
    16912, 16913.
    LAND v. PIKE’S PEAK LUMBER COMPANY; and vice versa.

    1. A material amendment to a petition opens the case, if in default, for answer by the defendant; aliier when the amendment makes no material change in the cause of action or the defense. Civil Code (1910), § 5652; Oalhoun v. Mosley, 114 Ga. 641 (3) (40 S. E. 714) ; Griffin v. Augusiad Knoxville R. Go., 72 Ga. 423 (2 6) ; Kelly v. fUrouse, 116 Ga. 872 (1 6) (43 S. E. 280).
    (a) One of the amendments merely amplified the description of the articles sued for in trover. The other was not called for by the law, or required by the court. Neither was material, and the judgment that these amendments did not open the case for answer was correct. Oenlral Ry. Go. v. Waldo, 6 Ga. App. 842 (65 S. E. 1099), and citations.
    2-, The direction of the verdict was proper, and the questions presented by the cross-bill of exceptions need not be considered.
    Judgments, 34 C. J. p. 157, n. 64, 6S.
    Trover and Conversion, 38 Cyo. p. 2069, n. 7.
    Decided March 2, 1926.
    Rehearing denied April 14, 1926.
    Trover; from Twiggs superior court—Judge Camp. August 38, 1935.

      B. A. Harrison, Highlower & New, for Land.

      11. F. Griffin Jr., James D. Shannon, contra.
   Luke, J.

Pike’s Peak Lumber Company brought an action of trover against Grover C. Land to the August term of the superior court of Twiggs county, 1933, for numerous articles of personal property constituting a sawmill outfit. The case was marked “in default” at that term. At the February term, 1934, the defendant filed a motion to open the default, and the motion was overruled. At the September term, 1935, the defendant made an oral motion “to dismiss the action,” (1) because it was not alleged that the plaintiff had “title or the right of possession,” and (3) because the property was not sufficiently described. The court sustained the sepond ground of the demurrer, and .the plaintiff filed an amendment meeting both grounds. The defendant then offered his sworn answer, and it was disallowed. The plaintiff elected to take a verdict for the property, and proved his case. The defendant having introduced no evidence, the court directed a verdict for the plaintiff for the property, and entered a judgment accordingly. The defendant excepted. His sole contention is that the plaintiff made a material amendment to his petition, -and that this opened the default.

Without considering the effect of the previous ruling that the default was not opened, and without deciding whether or not it was within the court’s power to open the default at the time the petition was amended (see Avery v. Sorrell, 157 Ga. 476 (1, 2), 121 S. E. 828), and assuming (but not deciding) that a material amendment made at the time the amendment was offered would have opened the default, we decide the precise question presented, by holding that the amendment amplifying the description of the property sued for “did not so change the plaintiff’s petition as for the first time to make a particular defense available” (Central Ry. Co. v. Waldo, 6 Ga. App. 842, 65 S. E. 1099, and citations), that it did not materially change the cause of action or the defense, and that it could not in any event have had the effect of opening the default. Since the petition alleged' that plaintiff “claims title” to the property, the1 plaintiff’s amendment to meet the first ground of the demurrer was not called for by the law (Van Dyke v. White Co., 33 Ga. App. 627, 127 S. E. 617); nor did the ruling of the court require it. Clearly it was immaterial.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

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


text:
    16918.
    Smith v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; 17 C. J. p. 252, n. 16.
   Luke, J.

The evidence warranted the conviction, and the verdict has the approval of the trial judge; and under the facts of the case, and in view of the charge of the court in its entirety, the ground of the motion for a new trial attacking an excerpt from the charge of the court is wholly without merit.

Decided March 2, 1926.

Accusation of sale of liquor; from city court of Summerville— Judge Neal. October 21, 1925.

C. D. Rivers, for plaintiff in error.

J. F. Kelly, solicitor, contra.

Judgment affirmed.

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


text:
    16920.
    CENTRAL OF GEORGIA RAILWAY CO. v. GRIFFIN.
    “Although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to Mm.”

      (a) The statute referred to in subdivision e of paragraph 9 of the petition, as to the stopping of trains within fifty feet of the place of crossing, and the manner of moving them forward, when the tracks of different railroads cross each other (Penal Code (1910), § 517), is designed to prevent collisions between trains, and has no reference to such cases as the one under consideration; and the court erred in overruling the special demurrer attacking this part of the petition.
    Negligence, 29 Cyc. p. 426, n. 70; p. 438, n. 63.
    Railroads, 33 Cyc. p. 976, n. 56.
    Decided March 2, 1926.
    Action for damages; from Muscogee superior court—Judge McLaughlin. October 19, 1925.

      Arnold & Battle, for plaintiff in error.

      George G. Palmer, contra.
   Luke, J.

Only such portions of the record as are necessary for an understanding of the ruling herein made will be discussed.

Percy Griffin brought a suit for damages against the Central of Georgia Railway Company because of a collision with one of the defendant’s trains at a crossing on a public street in the City of Columbus while Griffin was driving his automobile along the street and perpendicularly to the defendant’s track. The record shows that the defendant’s railroad runs east and west on 9th Street, and that the track of the Southern Railway Company runs north and south on 6th Avenue, and that at the intersection of 6th Avenue and 9th Street the track of the Central crosses the Lack of the Southern. The petition alleges that the plaintiff was driving his automobile along 6th Avenue traveling north, and that “just as said automobile reached the track of the main line of the said defendant railway company at a point about 20 feet east of where its track crosses the track of the Southern Railway Company at the intersection of 6th Avenue and 9th Street in the said City of Columbus, Georgia, the defendant carelessly and negligently ran its engine, which was pushing one freight-ear along and upon its railroad-track, immediately in front of plaintiffs automobile, at a rapid rate of speed, to wit from 20 to 25 miles per hour, thereby causing a collision between the said freight-car, which" was in front of said engine, and plaintiffs automobile.” The record shows that the automobile ran against the side of the freight-car of the defendant, and that this collision caused the damage for which suit was brought.

The defendant filed general and special demurrers to the petition; the petition was amended several times, and to the petition as amended the defendant renewed its demurrers, and the demurrers were overruled. Exceptions pendente lite to the overruling o£ the demurrers were filed, and error is assigned thereon in the bill of exceptions, but the brief of counsel for plaintiff in error recites that “The railway company abandons all of the grounds of both its general and special demurrers made to the original petition and renewed to the petition as finally amended, except the 7th ground of its special demurrer.” This 7th ground of the special demurrer was directed to paragraph 9 (e) of the petition as amended, which is as follows: “Defendant was negligent in that defendant did not bring its engine and car to a stop within fifty feet, and moving forward slowly before crossing the railroad track of the Southern Railway Company, a separate and independent railroad on Sixth Avenue, at the intersection of Ninth Street in said City of Columbus, Muscogee County, -Georgia, in compliance with section 517 of the Penal Code of the State of Georgia.” This section of the Penal Code is as follows: “Whenever the tracks of separate and independent railroads cross each other, all engine drivers and conductors must cause the trains which they respectively drive and conduct to come to a full stop within fifty feet of the place of crossing, and then to move forward slowly. The train of the road first constructed and put in operation shall have the privilege of crossing first. A person violating the provisions of this section «shall be guilty of a misdemeanor.” The 7th ground of the special demurrer is as follows: “Defendant demurs specially to subhead e of paragraph 9, upon the ground that the allegations therein contained are immaterial and irrelevant, and upon the further ground that it affirmatively appears from the petition that the alleged violation of the statute set forth in no wise contributed to the injury and damage complained of, and upon the further ground that the violation of said statute is not an act of negligence in so far as the driver of an automobile along the public street is concerned, said statute being designed to prevent accidents due to collisions of trains and not accidents due to collision of a train and an automobile.” Assuming that the above allegations of the petition are true, for the purpose of testing it as against this demurrer, the violation of the said statute by the railway company did not constitute an act of negligence so far as the plaintiff in this case was concerned. Clearly the object of this statute is to prevent accidents due to collisions of trains, and it was not designed to prevent accidents between a train and an automobile driven along a public street, as in the instant case. The ease of Atlanta &c. Air-Line Railway Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145), while differing somewhat from the instant case in its facts, is directly in point in principle. In that case all the material Georgia cases up to that time are reviewed, and numerous cases from other States are discussed. The substance of the court’s holding in that case, so far as it relates to the case under consideration, is shown by the following quotations in the opinion: “If there is no duty, there can be no negligence. If the defendant owes a duty, but does not owe it to the plaintiff, the action will not lie. . . In order to maintain an action for a negligent injury, it must appear that there was a legal duty due from the person inflicting the injury to the person on whom it was inflicted, and that such duty was violated by a want of ordinary care on the part of the defendant. It is not sufficient that there be a general duty to the public which is violated, but in all civil cases, the right to enforce such duty must reside in the individual injured because of a duty due him from his injurer, or he can not recover. . . In an action for neglect of duty, it is not enough for the plaintiff to show that the defendant neglected a duty, and that he would not have been injured if the duty had been performed; but he must also show that the duty was imposed for his benefit, or was one which the defendant owed to him for his security from the injury. . . Metallic Compression Casting Co. v. Fitchburg R. R. Co., 109 Mass. 277, 280, was an action against the railroad company for damages alleged to have been caused by negligence in running a train over a line of hose stretched across the track and being used in extinguishing a fire. A few hundred feet above this point the defendant’s track was crossed by another railway. It was held that the defendant’s failure to comply with the statutory requirement of stopping before crossing another railroad at grade had no bearing upon the question of negligence. Chapman, C. J. says: ‘But the object of the statute was solely 'to prevent the collision of trains at crossings, and had no reference to the extinguishment of fires. It is not applicable to this case.’ ” For a full discussion of the principle involved in the Gravitt case see headnote 4 (p. 370) and subdivision 4 of the opinion (pp. 390 to 408). In the case of Platt v. Southern Photo Material Co., 4 Ga. App. 164 (60 S. E. 1071), this court said: “Therefore, although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to him; and when the lawmaking power has created a particular obligation or has inhibited certain conduct, before a plaintiff can invoke that law in his behalf it must appear (to borrow an expression from the grammarians) that he, either in his own right or as a member of a class, is the indirect object of the legislative action. The statute being the direct object, he must occupy the relation expressed by the dative case, while the statute stands in the accusative. Therefore, in determining whether the violation of a statute is negligence so as to support an alleged cause of action, the court is called upon to examine the law in respect to its objects; for if it appears that, notwithstanding the violation, none of the consequences contemplated and sought to be guarded against have ensued, or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the statute was enacted, the court can not declare that there is a case of negligence per se as to that cause of action or that plaintiff.” See also headnote 2 (c) (p. 159). Numerous decisions from other States hold that even though a statute be violated, in order to constitute actionable negligence the injury must be such as the statute was intended to prevent, and no one not included in the class to be benefited may complain because the statute was not complied with. See Denton v. M. K. & T. Ry. Co., 90 Kansas, 51 (133 Pac. 558, 47 L. R. A. (N. S.) 820, Ann. Cas. 1915B, 639); Bourne v. Whitman, 209 Mass. 155 (90 N. E. 404, 35 L. R. A. (N. S.) 701); Guse v. Martin, 96 N. J. L. 262 (114 A. 316); Di Caprio v. N. Y. Central R. Co., 231 N. Y. 94 (131 N. E. 746, 16 A. L. R. 940).

The statute referred to in subdivision e of paragraph 9 of the petition is clearly designed to prevent collisions between trains, and has no reference to cases such as the one under consideration; and the court erred in overruling the special demurrer attacking this portion of the petition.

While the 2d and 5th grounds of the amendment to the motion for a new trial relate to the principle hereinbefore discussed, it is not necessary to discuss these or any other grounds of the motion, as the above ruling is controlling, and the failure to sustain the special demurrer to this portion of the petition rendered everything thereafter nugatory.

Judgment reversed.

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


text:
    16924.
    GAY et al. v. THE STATE.
    Where the evidence upon which the State mainly relied for a conviction of the offense of larceny from the house, and without which there could have been no legal conviction, consisted of proof of possession by the accused of goods alleged to have been stolen, and there was an explanation by the defendants of their possession, which, if true, was consistent with their innocence, the failure by the court to submit to the jury the question whether that explanation was reasonable and satisfactory is cause for a new trial. Mayfield v. State, 17 Qa. App. 115 (86 S. E. 284), and eases cited.
    Criminal Law, 16 C. J. p. 1151, n. 5.
    Decided March 2, 1926.
    Conviction of larceny from house; from Colquitt superior court —Judge W. E. Thomas. October’ 16, 1925.

      James L. Bowling, for plaintiff in error.

      Clifford B. Hay, solicitor-general, contra.
   Luke, J.

The defendants in this case were indicted for the offense of larceny. The State’s case depended for a conviction ■upon proof of recent possession of the articles stolen by the defendants. The court failed to submit to the jury the question •whether the explanation offered by the defendants of their possession of the goods was reasonable and satisfactory. Error is assigned by the defendants upon the court’s failure so to charge. Under the rulings of this court and of the Supreme Court a reversal, of the judgment overruling the motion for a new trial necessarily follows.

Judgment reversed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    16925.
    Citizens Auto Company v. State of Georgia.
    Intoxicating Liquors, 33 O. J. p. 688, n. 85 New; p. 689, n. 12.
    New Trial, 29 Oye. p. 947, n. 9.
    Decided March 2, 1926.
    Confiscation; from Dade superior court—-Judge Tarver. October 17, 1925.

      C. A. Noone, McClure, Hale & McClure, for plaintiff in error.

      C. C. Pittman, solicitor-general, contra.
   Luke, J.

1. Where a proceeding is instituted under the act approved March 28, 1917 (Park’s Code Supp. (Penal), § 448 (oooo)), to condemn an automobile alleged to have been used in conveying intoxicating liquors over a designated public road, and the evidence does not demand a finding that the vehicle was used in conveying liquors “on the public roads named in the petition,” the direction of a verdict “for confiscation” is reversible error. Wells v. State, 33 Ga. App. 426 (126 S. E. 856).

2. Special grounds 1 and-2 of the motion for a new trial, complaining of the exclusion of certain documentary evidence, present nothing for adjudication, for the reason that the rejected evidence is not set forth therein either literally or in substance, nor attached as an exhibit to the motion. Shaw v. Jones, 133 Ga. 446 (9) (66 S. E. 240) ; Holton v. State, 29 Ga. App. 387 (115 S. E. 284) ; Bank of LaGrange v. Commercial Credit Co., 31 Ga. App. 529 (121 S. E. 142).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., eoneur.


text:
    16936.
    Goolsby v. The State.
    Decided March 2, 1926.
    Indictment for possession of liquor; from Jasper superior court —Judge Park. October 10, 1925.

      Clement & Campbell, for plaintiff in error.’

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

The evidence was sufficient to authorize the conviction, and the verdict has the approval of the trial judge. He did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16937.
    Goolsby v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 88, n. 46; p. 27!, n. 41.
    Decided March 2, 1926.
    Indictment for possessing distilling apparatus; from Jasper superior court—Judge Park. October 10, 1925.

      Clement & Campbell, for plaintiff in error.

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

1. The defendant was convicted of the offense of possessing on his premises an apparatus for distilling whisky. The evidence was sufficient to show his guilt.

2. The special assignment of error, that “the evidence adduced upon the trial of said case fails to disclose and show that the offense alleged-to have been committed was committed in Jasper County, Georgia,” where the crime was alleged to have been committed, can not work a reversal, for the reason that in a note to the motion for a new trial the trial judge says: “The recital of facts contained in the foregoing motion for new trial and amended motion for new trial are not approved as true and correct, for the reason that my recollection is that R. L. Oxford swore that the crime was committed in Jasper county. This must be correct, for I charged the jury they could not convict until the evidence showed it was in Jasper county, and the verdict of the jury corresponds with said recollection.”

(a) Grounds of a motion for a new trial must have the unqualified approval of the trial judge.

Judgment affirmed.

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


text:
    16940.
    Murray v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Juries, 35 C. J. p. 216, n. 85, 90.
    Decided March 2, 1926.
    Indictment for selling liquor; from city court of Blackshear— Judge Mitchell. September 28, 1925.

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

      S. Thomas Memory, solicitor, contra.
   Luke, J.

1. In section 28 of the act establishing the city court of Black-shear (Ga. L. 1911, p. 210) it is provided that “in all eases, civil and criminal,' trial by jury of twelve shall be had in said court where so demanded, such demand to be made m writing at or upon the caM of the docket, and not thereafter . . ; should no demand be made as provided for trial by jury of twelve, then the judge shall cause three panels of eight each to be made up of the twenty-four jurors, sixteen of which shall constitute a panel of jurors from which to select a jury . . . ; in criminal cases the defendant shall be entitled to five strikes and the State three, the remaining eight jurors shall constitute a trial jury” (italics ours). -Under these provisions and the facts of the instant case, including the note of the judge, the refusal of the court to grant the oral demand of the defendant to be tried by a jury of twelve was not error for any reason assigned. No attack is made by the accused upon the above-stated provisions of the act.

2. The verdict was demanded by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

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


text:
    16943.
    Gunter, alias Smith, v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; 17 C. J. p. 264, n. 89; p. 349, n. 93.'
    Decided March 2, 1926.
    Conviction of manufacture of liquor; from Wilkes superior court—Judge Perryman. October 5, 1925.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Luke, J.

The evidence, though conflicting, was amply sufficient to authorize a verdict of guilty.

The special assignments of error, upon two excerpts from the charge of the court, and upon the failure to charge the law of confessions, when the entire charge is read, are without merit.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., coneur.


text:
    16946.
    WENDELKEN v. THE STATE.
    A conviction of possessing an apparatus for making intoxicating liquor was authorized by the evidence. Intoxicating Liquors, 33 C. J. p. 758, n. 80.,,
    Decided March 2, 1926.
    . Certiorari; from Effingham superior court—Judge Strange. October 20, 1925.

      J. H. Smith, for plaintiff in error.

      John 0. Hollingsworth, solicitor-general, contra.
   Luke, J.

Wendelken was convicted of possessing an apparatus for distilling and manufacturing intoxicating liquors. The sole assignment of error insisted upon is that the evidence did not authorize h'is conviction, because the evidence did not show that he was the owner of the premises on which the still was located. Held: The court properly overruled and denied the petition for certiorari. The evidence was positive that the defendant was in possession of a great quantity of stilled beer that was intoxicating and that the still for its distillation was there with the beer; and a finding that he had an interest in the still was amply authorized by the evidence. The evidence was ample to authorize the trial court to find that he was in possession of the apparatus upon lands presumptively his own. Wendelken has had a legal trial and the sentence of which he complains was within the province of the trial court.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., dissents.


text:
    16975.
    KING v. THE STATE.
    The jury were authorized to find that there was sufficient corroboration of the testimony of an accomplice, and the conviction of burglary was authorized by the evidence.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided March 2, 1926.
    Conviction of burglary; from Chatham superior court—Judge Meldrim. October 5, 1925.

      Aaron Kravitch, Gasper Wiseman, for plaintiff in error.

      Walter G. Hartridge, solicitor-general, contra.
   Luke, J.

The plaintiff in error contends that the conviction of burglary should not stand because there was not sufficient corroboration of the testimony of an accomplice. The jury were fully authorized to find that there was such corroboration. The judge, having approved the verdict, did not, for any reason pointed out, err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, <7., concur.


text:
    16994.
    Goins v. The State.
    Criminal Law, 16 C. J. p. 1002, n. 21.
    Decided March 2, 1926.
    Conviction of arson; from Upson superior court—Judge Searcy. November 5, 1925.

      J. A. Dairsey, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Luke, J.

The evidence amply authorized the jury to find that the houses alleged in the indictment to have been burned were unlawfully burned. The defendant confessed. Aside from the proof of the corpus delicti, the circumstances were sufficient to corroborate the confession.

The charge upon the law as to confessions, under the facts of this case, was not reversible error. Plummer v. State, 27 Ga. App. 186.

Judgment affirmed.

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


text:
    17000.
    WATKINS COMPANY v. MIMS.
    Exceptions to rulings as to the sufficiency of pleadings can not properly be taken in a motion for a new trial.
    Several grounds of the motion for a new trial are not in proper form for consideration.
    On disputed questions of fact the jury’s finding, approved by the trial judge, will not be disturbed by this court.
    Appeal and Error, 3 C. J. p. 967, n. 42; p. 978, n. 37; 4 C. J. p. 843, n. 65; p. 866, n. 51.
    New Trial, 29 Oye. p. 761, n. 5.
    Decided March 2, 1926.
    Complaint; from city court of Dawson—Judge Marlin. October 24, 1925.

      W. H. Gurr, J. H. Fletcher, for plaintiff.

      H. A. Willcinson, for defendant.
   Bloodworth, J.

1. “Rulings upon the sufficiency of pleadings are not proper subject-matter for a motion for a new trial.” Coulson v. State, 13 Ga. App. 148 (2), 150 (78 S. E. 1108), and citations; Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E. 623), and citations. Under the foregoing ruling there is no merit in special ground 1 of the motion for a new trial.

2. The 2d special ground of the motion for a new trial alleges that the court “erred in admitting the following material evidence, to wit: the certificate of discharge in bankruptcy to C. S. Lee.” This ground is imperfect because it does not set forth the discharge in form or substance so that this court may determine from the assignment itself what were the contents of the evidence objected to. McCollum v. Thomason, 32 Ga. App. 163 (8) (122 S. E. 800).

3. “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 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). Wellborn v. State, 32 Ga. App. 55 (2) (122 S. E. 648); American Machinery Co. v. Arbuthnot, 33 Ga. App. 575 (3) (127 S. E. 416). Under the rulings in the foregoing cases, grounds 3 and 4 of the amendment to the motion for a new trial can not be considered. Reference to other portions of the record would have to be made to ascertain the relevancy of much of the evidence referred to in this ground. Who is the “Mr. Preston” and the “Mr. York” referred to 'therein, and what, if any, is the connection of each with the case, and what is the written contract referred to therein, and what “exclusive territory” was promised to plaintiff?

4. The Court of Appeals has no authority to settle disputed questions of fact. The jury on conflicting evidence settled the issue in favor of the defendant, their finding was approved by the judge who heard the case, and the judgment is

Affirmed.

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


text:
    17002.
    JONAS v. CENTRAL GEORGIA LUMBER COMPANY.
    The special lien given by the Civil Code (1910), § 3335, to laborers, on the product of their labor, attaches to the property of their employers ' only.
    Logs and Logging, 38 O. J. p. 220, n. 81; p. 227, n. 24.
    Master and Servant, 39 O. J. p. 220, n. 15.
    Decided March 2, 1926.
    Levy and claim; from Wilkinson superior court—Judge Park. November 4, 1925.
    Application for certiorari was made to the Supreme Court.

      Wli B. Hubbard, for plaintiff. George H. Carswell, contra.
   Luke, J.

B. A. Jonas filed a foreclosure affidavit alleging that he was employed by W. G. Smallwood to work and labor, that as such laborer he operated the saw at the sawmill of said Small-wood in sawing 80,000 feet of lumber, that he completed his contract, that he earned $127.00 which was due and unpaid, and that he demanded said sum from said employer and that the same had not been paid. Central Georgia Lumber Company, a partnership composed of several persons, filed a statutory claim to 5,000 feet of lumber levied on under the lien foreclosure. “By way of amendment and joinder of issue” the plaintiff offered an amendment substantially as follows: (1) Claimant owned a large body of timber, and contracted with Smallwood to saw same for $7.50 per thousand feet. (2) Smallwood employed affiant to operate said sawmill, and especially to cut said timber into lumber. (3) After affiant had been so employed, a member of claimant's partnership who was its general manager “came to the mill where affiant was at work, and on several different occasions gave him instructions as to the size and length, width and thickness, to saw said lumber, and told him that if the lumber was not cut according to said instructions that the company would not pay for said lumber.” (4) “Said company, through its agents and managers, knew that affiant was performing the work in sawing their timber into lumber, and they never at any time gave him notice that they would not pay for his labor if done according to instructions, and they gave him instructions as to how the labor should be performed, and he performed the labor according to such instructions, with the result that the partnership property was greatly enhanced in value, and they accepted the services and the benefits of his labor.” (5) “The lumber levied on by virtue of said foreclosure was cut and sawed by plaintiff, and said claimant could have deducted the amount due him from the amount paid to affiant’s employer, and therefore, if either party should sustain a loss, it should be the claimant rather than the plaintiff, because the claimant knowingly accepted plaintiff’s services.” (6) “Defendant in fi. fa. owns no property out of which his said lien can be satisfied, and the products of his labor is the only thing out of which he can collect his debts.”

The case was submitted to the court for decision upon the following agreed statement of facts: “It is agreed by the parties that the plaintiff was in the employ of W. G. Smallwood, performed the labor as alleged in the affidavit to foreclose the lien, and that the plaintiff had not been paid for said labor, and that the said sum as alleged in the foreclosure was and is due; that the lumber levied upon was the products of plaintiff’s labor, and that W. G. Smallwood owned no property out of which the lien could be satisfied; that the lumber levied upon was the property of claimant, and that claimant contracted with W. G. Smallwood to saw said lumber, and that the said claimant had paid the said W. G. Smallwood for sawing said lumber.” The court rendered judgment in favor of the claimant, and the plaintiff excepted.

It will be noted that the plaintiff’s amendment is in substance and almost in words identical with the plea in Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 (75 S. E. 898). He contends in his brief that the words in the agreement, “performed the labor as alleged in the affidavit to foreclose the lien,” had the effect of making “the pleadings as much a part of the agreed facts as if incorporated therein,” and that therefore this case was necessarily controlled by decision in the case cited above. To this we can not accede. We think the words, “performed the labor as alleged in the affidavit to foreclose the lien,” referred to the allegations in the original affidavit of foreclosure, and that to hold as contended by the plaintiff would be to contort, contradict, and entirely change the agreed statement of facts. The judgment in favor of claimant was demanded by the following decisions: Lanier v. Bailey, 120 Ga. 878 (48 S. E. 324); Tallent v. Hunter, 32 Ga. App. 656 (124 S. E. 361); Hobbs v. Broad River Lumber Co., 32 Ga. App. 447 (123 S. E. 756); Quillian v. Central R. Co., 52 Ga. 374.

Judgment affirmed.

Broyles, O.J., and Bloodworih, J., concur.


text:
    17003.
    DANIELS v. ARLINGTON WHOLESALE COMPANY.
    It was not error to omit to charge the jury, without request, that the burden was on the plaintiff to make out his case by a preponderance of evidence.
    The slight inaccuracy in the charge of the court in stating what “the defendant sets up in his plea” was not likely to mislead the jury, and is not ground for a new trial.
    There being no material error of law on the trial, the verdict, which is supported by evidence and approved by the trial judge, can not be disturbed.
    Appeal and Error, 4 0. J. p. 864, n. 34.

    New Trial, 29 Cye. p. 791, n. 15.
    Trial, 38 Cyc. p. 1693, n. 55; p. 1702, n. 57; p. 1750, n. 16; p. 1751, n. 21.
    Decided March 2, 1926.
    Complaint; from city court of Blakely—Judge Sheffield. November 16, 1925.
    17. I. Geer, for plaintiff in error. E. L. Smith, contra.
   Bloodworth, J.

1. The first of the two special grounds of the motion for a new trial alleges that “the court erred in not giving in charge to the jury, even without any request to do so, the rule of law in reference to the preponderance of evidence; and because nowhere in the entire charge did the court inform the jury that the burden was upon the plaintiff to make out his case by a preponderance of the evidence.” There is no merit in this ground. The 4th headnote in Western Union Telegraph Co. v. Travis, 144 Ga. 110 (86 S. E. 221), is as follows: “In the absence of a timely written request, the failure of the court to charge upon the subject of the burden of proof and the preponderance of evidence is not ground for the grant of a new trial. Small v. Williams, 87 Ga. 681 (13 S. E. 589).” In Brooks v. Griffin, 10 Ga. App. 497 (5) (73 S. E. 752), this court held: “The court is not required to charge the jury upon the preponderance of testimony unless requested so to do.” Moreover, the judge did charge the jury that “if you believe by the greater weight of evidence that this note,” etc.

2. While in the excerpt from the charge of which complaint is made in the other special ground of the motion there is a slight inaccuracy as to what “the defendant sets up in his plea,” this is not such an error, in view of the facts, as likely misled the jury.

3. The jury passed upon the disputed questions of fact, determined the issue in favor of the plaintiff, and, in the absence of any material error of law committed on the trial, this court can not interfere with the verdict supported by evidence and approved by the judge who tried the case.

Judgment affirmed.

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