author: Bloodwortii, ,T.

text:
    16066.
    NEW JERSEY INSURANCE COMPANY OF NEWARK v. ROWELL.
    1. The court did not err in admitting in evidence either the policy of insurance on which the suit was based, or the receipt for it given the insured after the fire and signed: “New Jersey Insurance Company, by James S. Bailey for the Company.”
    2. For no reason alleged was it error for the court' to refuse to grant a nonsuit.

      (a) “A complete contract of insurance exists when the minds of the insurer and the person to be insured meet upon the essential elements, to wit: the subject-matter to which the policy should attach, the' risk insured against; the duration of the risk; the amount of the indemnity; the premium to be paid; subject to the limitation that by statute in this State the policy must be written, though not necessarily delivered. All the essentials need not, however, be expressly negotiated upon, but may be understood from custom, course of dealing, or other circumstances from which assent to them may fairly be implied.” Todd v. German American Ins. Co., 2 Ga. App. 789 (1) (59 S. E. 94).

      (b) It is not necessary that an oath administered should be formal. “It is sufficient if both affiant and the officer understand that what is to be done is all that is necessary to complete the act of swearing.”
    (c) In view of the rulings in New Jersey Ins. Co. v. Rowell, 157 Ga. 3G0 (121 S. E. 414), s. c. 32 Ga. App. 16 (123 S. B. 38), the court did not err in refusing to grant a nonsuit for any of the reasons alleged in the other grounds of the motion for a nonsuit.

      \d) The court did not err in directing- a verdict in favor of the plaintiff for the full amount sued for, less the items for damages and attorney’s fees.
    Decided March 3, 1925.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. October 6, 1924.
    H. P. Rowell was lessee of a building occupied by him as a grocery store and owned by James Holmes. A fire-insurance policy, under which loss was payable to Holmes as his interest might appear, was issued to Rowell, insuring the building for $750 “while occupied by lessee (tenant) as a grocery store,” and insuring the goods in the building for other sums stated. Rowell, after the building and the goods had been damaged by fire, sued the insurance company for an alleged loss of $1732.07 on the policy, and for additional sums as damages and attorney’s fees. On exceptions to the overruling of a demurrer it was held that the petition “was not subject to general demurrer,” and that “the special demurrers to the petition are without substantial merit.” See 157 Ga. 360 (121 S. E. 414); 32 Ga. App. 16 (123 S. E..38). In the demurrer it was contended that it appeared from the petition that the insured had no insurable interest ip the building, or, if he had such an interest, his interest was not insured; and that he could not recover for damage to a building not owned by him and to which he had no legal or equitable title.
    On the trial the plaintiff testified that a part of the premium on the policy was paid in cash, and that the agent who issued it traded with him for a part of the premium, in groceries, cigars, etc. The defendant contended that the payment of a part of the premium in groceries, etc., constituted a fraud on the insurance company and rendered the policy void; and on this ground the defendant objected to the policy when it was offered in evidence. The receipt referred to in the first headnote was objected to on the grounds that it was irrelevant, and that there was no evidence, that Bailey had authority to sign it. The plaintiff testified that Mr. Stallings, of the Stallings Insurance Company, the agent that issued the policy, told him, after the fire, that he wanted the policy in his office to make out the proof of loss and adjust the loss, and that “Mr. Stallings’s representative,” Bailey, “acting for Mr. Stallings,” came to his place and got the policy; that he knew that Bailey was acting for Stallings, “because he had been working for him.” There was other testimony as to Bailey’s connection with Stallings,
    The grounds of the motion for a nonsuit were: (1) that the policy is void because a part of the premium was paid “by the exchange of or credit for goods; which constituted a fraud upon the company;” (2) that the alleged proofs of loss were not sworn to; (3) that there was no proof of loss as to the interest of the plaintiff in the building; he alleges damage merely to the building, and not to his interest in the building under his lease; (4) that the proof shows that the building was the property of Holmes, and that the plaintiff had no interest in it; (5) that the policy was an entire and indivisible contract, and if a single item is not recoverable, the entire cause of action falls with that item.

      Smith, Hammond S Smith, Kline & Moore, for plaintiff in error.

      B. S. Boddenbery Jr., Waldo DeLoache, contra.
   Bloodwortii, ,T.

Bowell brought suit against the New Jersey Insurance Company of Newark, New Jersey, on an insurance policy, for the amount thereof, and in addition asked for damages and attorney’s fees. On the trial the court directed a verdict for the plaintiff for the full amount of the policy, but denied a recovery of damages and attorney’s fees. To the judgment for the amount of the policy the defendant excepted. We will discuss only subdivisions a and b of the 2d headnote.

It is insisted that the policy sued upon is void because “a part of the premium was paid by the exchange of or credit for goods; which constituted a fraud upon the company.” As authority for this proposition counsel for plaintiff in error cite Hoffman v. John Hancock Mutual Life Ins. Co., 92 U. S. 161; Folb v. Firemen’s Ins. Co., 133 N. C. 179 (45 S. E. 457); and Cohen v. New Zealand Ins. Co. (N. J.), 126 Atl. Rep. 417. Neither of these cases supports the contention of the plaintiff in error. In the Hoffman case a life-insurance policy and an application for it were involved. Goodwin, a subagent of the Hancock Mutual Life Insurance Company, accepted from Hoffman certain personal property and notes, and issued to him a receipt in which it w;as stipulated that “it is expressly agreed and understood, that, if the above-mentioned application shall be declined by the said company, it shall be deemed that no insurance has been created by this receipt; but the amount above receipted shall be returned to the holder of this receipt, which shall then be given up.” Without knowledge of the receipt or of the agreement between Goodwin and Hoffman, the agent, Thayer, forwarded the application, and the policy was issued. Afterward, when Hoffman called for the policy, Thayer demanded the premium, and, when informed of the agreement between Hoffman and Goodwin, refused to ratify the transaction and deliver the policy. The record shows that no part of what was paid by Hoffman to Goodwin ever came into the hands of Thayer or the company, or inured in any way to the benefit of either. The Supreme Court of the United States held that “no valid contract as to the company could arise from such a transaction.” In the. Folb ease the plaintiff claimed that Hnderwood, a local agent for the Firemen’s Insurance Company, issued to him a policy upon a stock of goods, and that he paid the premium in merchandise. The record shows that “McBae, agent for the company, notified the plaintiff that the company Avould not recognise any liability. No policy of insurance was ever produced, nor was there any evidence that any policy was ever issued, nor that the defendant had any notice of the transaction until after the fire.” In that case the Supreme Court of North Carolina quoted from Ostrander on Insurance (2d ed.) p. 295, the following: “Where the agent delivers a policy to the merchant with whom he has dealings and to whom he is indebted for goods due for the use of his family, and the premium by agreement is placed to the credit of the account, it is a fraud on the principal, and should a loss occur, Ihe agent having failed to remit, the insurer will not be liable.” (Italics ours.) In the Cohen case the record shows that “on or about January 1, 1922, Weaver procured the policy from the plaintiff, stating that there was ‘something wrong’ with it which he would ‘fix up;’ that on January 11, 1922, Weaver sent the policy to the company, marked ‘can-celled, not wanted;’ that shortly thereafter Weaver absconded, and has not been heard from since; that the company never received anything whatsoever on account of the premium; that the plaintiff ‘forgot’ about the policy until after the fire, which occurred November 12, 1922; that the company upon receipt of proof of loss immediately disclaimed liability upon the ground that the policy had been returned and canceled.” The court in that case said:'“In this situation it seems clear that the policy in question never became an outstanding obligation of the company.” From the foregoing it will appear that the facts in the cases relied upon by. counsel for plaintiff in error clearly differentiate those cases from the case under consideration.

In Todd v. German American Ins. Co., 2 Ga. App. 793 (1) (59 S. E. 96), Judge Powell, speaking for the court, said: “It may be said generally that to constitute a completed contract of insurance, the minds of the parties should meet and agree upon five things: (1) The subject-matter to which the policy should attach; (2) the risk insured against; (3) the duration of the risk; (4) the amount of indemnity; (5) the premium to be paid. 1 Wood on Insurance, § 5; Michigan Pipe Company v. Michigan Ins. Co., 92 Mich. 482, 20 L. R. A. 277; May on Insurance, § 43 et seq.; Joyce on Insurance, § 43. ‘All the essentials need not, however, be expressly negotiated upon, since they may be understood, as where the terms of the usual policjr are presumed to have been intended; or where the usual rate of premium is presumed to have been meant; or in case the duration of the risk is understood to be the same as in a former policy; or where by custom and usage a certain course of dealing has been established/ Joyce on Insurance, § 46; Wynn v. Niagara Insurance Co., 91 N. Y. 186; Audubon v. Insurance Co., 27 N. Y. 222; Home Ins. Co. v. Adler, 71 Ala. 516. In this State, by the Civil Code [1895], § 2089, ‘Such contract, to be binding, must be in writing; but delivery is not necessary if, in other respects, the contract is consummated/ New York Life Ins. Co. v. Babcock, 104 Ga. 67; Southern Ins. Co. v. Kempton, 56 Ga. 339. Although a policy of insurance has been written, the insurer may defend against an action thereon, provided it is made to appear that the minds of the parties have never met as to the essential elements. On the other hand, ^a plaintiff in an action against an insurer may recover upon a policy written, but not delivered, if it appears that the policy was executed by the insurer in response to an offer on the former’s part to take such insurance; which offer may be direct, immediate, and express, or may be implied from general language, surrounding circumstances, or a previous course of dealing. This offer need not be made personally, but may be made by an agent. The consideration of the contract may consist either of the payment of the premium by the insured or by another, or of a promise, express or implied, to pay it [italics ours] ; wliicli promise likewise need not be. the personal promise of the insured, but may be the promise.of. any other person, acceptable to the insurer. These generalizations are not only deducible from those recognized rules of law which govern nearly all contracts, but are also sustained by the practically unbroken current of authority in England and America. See, in addition to the authorities,cited above, Fireman’s Ins. Co. v. Pekor, 106 Ga. 1; Mechanics Ins. Co. v. Mutual Assn., 98 Ga. 266; Lebanon Ins. Co. v. Hoover, 113 Pa. St. 591, 57 Am. Rep. 511, and notes.”

In the case we are now considering the policy was regularly issued and delivered. The insured paid to the local agent the full premium, and at the time of the lire the policy was in the hands of the insured. When these things are shown by competent evidence a prima facie case of liability is proved. Until there is evidence to the contrary it will be presumed that the agent kept faith with his principal and sent to it the premium, less commissions and expenses. Surely, where an insurance policy is regularly issued and the company receives the full amount of the premium, less commissions, the policy will not be rendered void by the simple fact that the local agent accepted a part of the premium in goods instead of in cash. See Metropolitan Life Ins. Co. v. Thompson, 20 Ga. App. 706 (3) (93 S. E. 299).

It is further alleged that “the evidence shows that no sworn proofs of loss were submitted.” The evidence relative to this shows that the proofs were prepared by the attorney of the insured; that the insured and his attorney went together to. the office of a notary public; that the insured, when asked if he knew the contents of the affidavit, replied that he did, and that it was true. The attorney swore that he did not know whether he or the notary administered the oath, "and that the insured signed the affidavit and then the notary signed it. We think this is sufficient to show that the affiant consciously took upon himself the obligation of the oath, and that the notary so understood, and that immediately after the affiant signed the affidavit the notary signed the jurat. In McCain v. Bonner, 122 Ga. 846 (51 S. E. 38), the Supreme Court said: “If, however, the affiant, at the time of tendering the affidavit to the officer, uses' language signifying that he consciously takes upon himself the' obligation of an oath, and the officer so understands and immediately signs the jurat, this will amount to such concurrence of act and intention as will constitute a legal swearing. The acts of the officer and of the affiant must be concurrent and must conclusively indicate-that it was the purpose of the one to administer and the other to take the oath, in order to make a valid affidavit. When an affiant presents to the officer an affidavit previously signed by him, with the statement that he is familiar with its contents, that what is therein contained is true, and that he swears to the same, and the officer immediately, on the faith of such declaration, affixes his official signature to the jurat, this conduct would not only indicate that the affiant understood he was taking an oath, but also that the officer likewise so understood, and, by presently signing the jurat, evidenced his intention to administer an oath. It is not necessary that the oath administered should be formal. What the law requires is that There must be,in the presence of the officer, something done whereby the person to be bound consciously takes upon himself the obligation of an oath.’ 2 Bish. Cr. Law, § 1018. Tt is not essential . . that affiant should hold up his hands and swear in order to make his act an oath, but it is sufficient if both affiant and the officer understand that what is done is all that is necessary to complete the act of swearing.-’ 2 Cyc. 16.” Moreover, in paragraph 18 of the petition it was alleged that the defendant had received satisfactory proof of loss, and in answer thereto the defendant admitted that “more than sixty days have elapsed since defendant received the sworn statement of the insured.”

The court did not err in refusing to' grant a nonsuit, and properly directed a verdict for the amount of the policy.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    16101.
    ROWELL v. NEW JERSEY INSURANCE COMPANY OF NEWARK.
    Under the record in. this case this court will not say that the insurance company’s refusal to pay the loss under the policy sued on was in bad faith, or that the trial court erred in refusing a recovery of damages and attorney’s fees.
    Decided March 3, 1925.
    Rehearing denied April 14, 1925.

      Complaint; from Colquitt superior court—Judge W. E. Thomas. October 6, 1924.
    The facts of this case are reported in New Jersey Insurance Go. V. Roivell, ante, 552.

      Waldo DeLoache, R. 8. Roddenbery Jr., for plaintiff.

      Smith, Hammond & Smith, Kline & Moore, for defendant.
   Bloodworth, J.

Bowell brought suit against the New Jersey Insurance Company of Newark, New Jersey, on an insurance policy for the amount thereof, and in addition asked for damages and attorney’s fees. On the trial the court directed a verdict for the plaintiff for the full amount of the policj', but denied a recovery for damages and attorney’s fees. The plaintiff excepted to the judgment denying to him damages and attorney’s fees, and to certain rulings on the admission of evidence. In the brief of counsel for the plaintiff the assignments of error on the admission of evidence are expressly abandoned, leaving for determination only the alleged error of the court in refusing the plaintiff a recovery of damages and attorney’s fees. Under the particular facts of this case and the issues raised, this court is not willing to say that the record shows that the refusal of the defendant to pay the loss under the policy was in bad faith, or that the court erred in refusing to the plaintiff a recovery of damages and attorney’s fees.

Judgment affirmed.

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


author: Duke, J.

text:
    16069.
    Buckner v. The State.
    Decided March 3, 1925.
    Conviction of receiving stolen goods; from Whitfield superior court—Judge Tarver. November 8, 1924.
   Duke, J.

1. “A showing for a continuance upon the ground of the absence of a witness, is insufficient if it omits to state that the application is not made for the purpose of delay.” Newsome v. State, 61 Ga. 481; Penal Code (1910), § 987; Cobb v. State, 110 Ga. 314 (1) (35 S. E. 178), and citations.

2. The above-stated ruling disposes of the amendment to the motion for a new trial; and the general grounds of the motion, not having been argued or insisted upon in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

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

J. *4. McFarland, for plaintiff in error.

J. M. Lang, solicitor-general, contra.


author: Bloodwobth, J.

text:
    16070.
    Ray v. The State.
    Decided March 3, 1925.
    Conviction of manufacture of liquor; from Troup superior court —Judge Eoop. October 25, 1924.

      B. II. Hill, 'for plaintiff in error.

      W. T. Allcinson, solicitor-general, contra.
   Bloodwobth, J.

The motion for a new trial is based upon the general grounds; the verdict is approved' by the trial judge, and this court can not say that there is no evidence to support it. See Yonce v. State, Morgan v. State, 154 Ga. 419 (114 S. E. 325); 29 Ga. App. 173 (114 S. E. 584).

Judgment affirmed.

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


text:
    16073.
    MILLER v. MAYOR AND ALDERMEN OF SAVANNAH.
    “Whore a city maintains a 'park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public.” Gornelisen v. City of Atlanta, 146 Ga. 416 (1) (91 S. E. 415). See also Gity of Warrenton V. Smith, 149 Ga. 567 (101 S. E. 681) ; Miller v. Gity of Macon, 152 Ga. 648 (110 S. E. 873).
    Decided March 3, 1925.
    Action for damages; from city court of Savannah—Judge Freeman. October 21, 1924..

      J: B. Fawcett, Fdwin A. Cohen, for plaintiff.

      F. P. Mclntire, for defendant.
   Bloodworth, J.

Mrs. Miller brought suit for personal injuries against, the Mayor and Aldermen of the City of Savannah. She alleged in part that while crossing Forsyth Park in said city “her toe caught in a piece of upturned cement of the sidewalk where the said cement sidewalk had been in some way broken and cracked, leaving a piece several inches long and several inches wide upturned about two inches;” that she was thrown heavily on her side and severely injured. On the trial of the case the plaintiff supported by evidence the allegations of her petition. The defendant introduced in evidence a section of the code of the City of Savannah,—a codification of an ordinance passed in 1851,—which showed that the place where the plaintiff was injured was in certain boundaries which were “forever set apart as a public park.” Other evidence showed that this park was still in use as such by the public; that the walk on which plaintiff was walking when she fell “had been used for a walk since the fifties;” that the Park and Tree Commission of the City of Savannah had control, management and maintenance of the sidewalks and pavements of the park in which she was injured, and that the cement walk on which she fell was laid in 1903. After the evidence was all in the judge directed a verdict for the defendant, and plaintiff excepted.

Under the principle announced in the headnote to this case the court did not err in .directing a verdict for the defendant.

Judgment affirmed.

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


text:
    16078.
    CHARLES, administratrix, v. LOUISVILLE & NASHVILLE RAILROAD CO.
    The killing of the track-walker by the train when he was stooping to tighten a bolt of the track, in the discharge of Ms duty as an employee of the railroad company, or when, as alleged in the second count of the petition, he fainted and fell on the track, gave no cause of action against the company, under the allegations of the petition; and the court did not err in sustaining the demurrer' and dsimissing the petition.
    Decided March 3, 1925.
    Action for damages; from Gilmer superior court—Judge Blair. October 11, 1924.
    "While on the railroad-track, standing in a stooping position, with his head bent and his eyes fixed on a bolt which he was tightening, in the discharge of his duty as a track-walker or section-hand of the railroad company, the plaintiff’s husband, according to the first count of her petition, was struck and killed bjr the train. It was alleged that because of a heavy wind which was blowing with great velocity past him and towards the approaching train, he could not hear the train until it was upon him and it was too late for him to avoid being struck. The second count alleged that while he was engaged in the work mentioned above he fainted and became unconscious and fell upon the track in a partially reclining or prone position, and was in that position when the train struck him; that he was subject to such fainting spells, and that they were frequently caused by the sight of blood or by a minor physical injury, such as mashing a finger or an abrasion upon the skin, or a sudden shock. It was also alleged that the track at that point was constantly and generally used-by the public as a walkway, and that this was known to the defendant and its employees in charge of the train.

      John T. Dorsey, for plaintiff.

      Tye, Peeples & Tye, William Bult, Campbell Wallace, for defendant.
   Bloodworth, J.

This was a suit for damages for the homicide of the plaintiff’s husband while he was in the employ of the defendant as a track-walker and section-hand. The following opinion which Judge Blair wrote in sustaining the demurrer to the petition fully meets our approval, and we adopt it as our opinion in this case.

“The decedent, as an employee of the defendant in interstate commerce, assumed all ordinary risks incident to the employment. In my opinion this rule controls the plaintiff’s case against her. L. & N. R. R. Co. v. Kemp, 140 Ga. 657 (79 S. E. 588); So. Ry. Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321); So. Ry. Co. v. Simmons, 24 Ga. App. 96 (100 S. E. 5). There is not an allegation as to anything unusual about the operation of the train. It came just as the decedent had a right to expect it to come, and the running of the trains was a risk he assumed. It is alleged that the wind was blowing, but the deceased must have known when he took employment that he would have windy weather during the winter months, and assumed that risk. That it was windy was known to him as well as to the enginemen. It is alleged that the enginemen saw the decedent at work when 225 to 300 yards away from him; but they had the right to assume that he was on the lookout and would leave the place of danger in time to avoid injury to himself. In the Blackwell case, supra (p. 637-), the court said: ‘Had the foreman actually notified the engineer in charge of the train that the plaintiff was at work on the track only a short distance ahead of the train, the engineer would still have had a perfect right to assume that the plaintiff would be on the lookout to protect himself, and consequently would not have been guilty of any negligence whatever in acting upon this assumption and operating his train accordingly.’ It is alleged that the enginemen ‘saw and were aware of the fact that the plaintiff’s husband was unaware of the approach of the said train.’ The sufficiency of this averment is challenged by the demurrer. It seems to me that so improbable an averment should be supported by a statement of facts, and that the demurrer that characterizes it as a mere conclusion is well taken. My conclusion is that the first count fails to set forth a cause of action, and the demurrers are sustained.

» “Is the second count any better ? I think not. The negligence alleged in this count is the failure of the enginemen to discover the plaintiff’s husband in his helpless condition and thereby avoid injuring him. The language does not charge that the enginemen knew of his condition or saw him in liis helpless plight. Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (2) (89 S. E. 481); Thomas v. Ga. Granite Co., 140 Ga. 459 (79 S. E. 130). There was no duty on the enginemen to look out for him, but it was his duty to look out for them. Authorities cited under first division. It is alleged that the decedent was subject to fainting spells. If so, he must have known it when he accepted this employment, and if it imposed a greater risk upon him, lie assumed it. There is no sufficient allegation that the defendant or its enginemen knew of this infirmity of the deceased or that he was suffering therefrom at the time he was hit. In the absence of such knowledge on the part of the enginemen, the defendant’s duty to the deceased could not be increased. It is alleged that the defendant’s track was used by the public as a walkway; but this is insufficient. Tapley’s case, supra; Gulf Line Ry. Co. v. Way, 137 Ga. 109 (72 S. E. 717). Besides, the plaintiff could not benefit by such a license, if it existed. Her case is based upon the relations existing between her husband and the defendant. Construing this count of the petition most strongly against the plaintiff, it can not be held that the petition charges or means to charge that the enginemen saw or knew that the deceased was in a helpless condition and in a place of danger. In my opinion no cause of action is alleged, and the petition is dismissed.”

Judgment affirmed.

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


author: Luke, J.

text:
    16080.
    Hill, for use, etc., v. Fryer.
    Decided March 3, 1925.
    jdomplaint; from Early superior court—Judge Yeomans. October 10, 1924.

      A. H. Gray, Homer Beelancl, for plaintiff.

      Glessner & Collins, for defendant.
   Luke, J.

1. .Where the vendor of cattle retains the title thereto until payment in full of the purchase-money, without any stipulation touching . the loss, damage, or destruction of the property, and, before payment of the purchase-money, the property or a part thereof is lost without the vendee’s fault, and the vendor thereafter sues the vendee for purchase-money, in order for the vendee to avail himself of this fact as a defense, it must affirmatively appear that the property was lost or destroyed without his fault. Wells v. Fay & Egan Co., 143 Ga. 732 (3) (85 S. E. 873).

2. It appearing in the present case that the cattle wore in the custody of a third person at the time of the conditional sale, and that they remained in his custody until converted by him to his own use, each contracting party contending that the custodian was the agent of the other, and the contract itself being silent both as to time and place of delivery and as to such custodian, parol evidence tending to show that the custodian was the agent of the vendor alone was not subject to the objection that it sought to add to, take from, or vary the written contract in question. Civil Code 1910, §§ 4268, 5788; Shiels v. Stark, 14 Ga. 429 (4).

3. Upon the controlling issues the evidence was conflicting, presenting questions for determination by the jury. The' charge of the court was sufficiently full and fair; and the verdict of the jury, having the approval of the trial judge, can not be disturbed by this court.

Judgment affirmed,.

Broyles, O. J., and Bloodioorlh, J., concur.


author: Bloodworm, J.

text:
    16081.
    Savage v. Southern Railway Co.
    Decided March 3, 1925,
    Action for damages; from city court of Hall county—Judge Sloan. November 19, 1924.
    Application for certiorari was denied by the Supreme Court. The petition as amended alleged: that while the plaintiff was in the employ of the defendant railway company as assistant extra gang foreman and in the performance of his duties as such, engaged in repairing the company’s main track and roadbed, then in use in the transportation of interstate commerce, and was in a lever-car of the defendant and in his usual place in the car, with three laborers, on the way to obtain material for repairing the track at a described place, the car, which was then running at a speed of ten or twelve miles an hour, encountered a rock in the track, which threw the car upward, landing it forward where it struck another rock, causing the car to derail, and he was thrown from the car with great violence and injured in a manner described. It was alleged that the defendant was negligent in not providing him with a safe place and with safe instrumentalities to work; that the defendant’s negligence arose by allowing the rock which the car struck to remain in the track, the rock being of such size as to derail the car when struck by it; that the defendant was negligent in not inspecting the track to ascertain Avhetlier such rock would endanger the safety of its employees; and that “the same was negligence in that its track and roadbed, by allowing this rock to remain, constituted an unsafe place to work.” It was alleged that the plaintiff was free from fault; that he had every reason to believe, from constantly crossing over the track, that the track would be safe, and he was under no duty to look for an obstruction thereon; that “before the same could have been visible to him it was his duty to maintain a lookout for other trains, and he was engaged at the time in examining his timepiece in order to determine the arrival of a train, so as to clear the track, for the benefit of the employees in the car; therefore he was free from fault and could not, by the exercise of ordinary care and diligence,'ascertain that the roadbed and track was in an unsafe condition;” that “it was not his duty to patrol the main track upon which he was injured, to ascertain its safe condition;” that he was a member of an extra gang, and his duties as such called upon him to travel over the main track, but not to keep it free from obstructions, but it was the duty of the defendant, through other employees, to maintain the roadbed free from obstructions. The petition stated that the plaintiff’s cause of action was based on the act of Congress approved April 22, 1908, and amendments thereto, known as the Federal employer’s liability act. To the petition as amended the defendant demurred generally and specially, and the court sustained the demurrer and dismissed the petition.
   Bloodworm, J.

The petition as amended did not set out a cause of action, and the demurrer thereto was properly sustained.

Judgment affirmed.

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

G. N. Davie, 0. 8. Reid, D. D. Kenyon, for plaintiff.

J. Q. Adams, Del. Qidllian, Gluorters & Wheeler, for defendant.


text:
    16088.
    Farlow v. The State.
    Decided March 3, 1925.
    Accusation of sale of liquor; from city court of Carrollton— Judge Hood. November 13, 1924.

      Smith & Millican, for plaintiff in error.

      JEmmett Smith, solicitor, contra.
   Bloodwobth, J.

Where the evidence, as in this case, is conflicting, the trial judge has some discretion in setting aside a verdict, but where he has exercised this discretion and there is any evidence to support the verdict, and no error of law was committed, this court has no authority to interfere.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    16091.
    Moore v. Prudential Insurance Company of America.
    Decided March 3, 1925.
    Complaint; from city court of Carrolltont— Judge Hood. November 13, 1924.

      S. J. Boykin, Boykin & Boykin, for plaintiff in error.

      J. J. Reese, contra.
   Bloodwortii, J.

As it does not appear from the bill of exceptions that a final judgment has been rendered and exceptions filed thereto, a writ of error will not lie to the order sustaining- the demurrer of the plaintiff to the plea of the defendant. Civil Code (1910), § 6138; Braswell v. Macon Savings Bank, 30 Ga. App. 325 (117 S. E. 664), and citations; Samson Tractor Co. v. Furlong, 28 Ga. App. 659 (112 S. E. 903), and citations.

Writ of error dismissed.

Broyles, G. J., and Lúke, J., concur.


text:
    16093.
    SOVEREIGN CAMP WOODMEN OF THE WORLD v. SIMMONS.
    Where in an action upon an insurance policy the jury finds against a plea of suicide, and a contrary finding is not demanded by all the facts and circumstances, with all reasonable deductions and inferences therefrom, this court will not set aside the verdict.
    Decided March 3, 1925.
    Complaint; from city court of Albany—Judge Clayton Jones. November 22, 1924.

      Application for certiorari was denied by the Supreme Court.

      Kline & Moore, for plaintiff in error.

      B. K. L. Spence Jr., contra.
   Luke, J.

This is an action upon a certificate of insurance issued by the defendant, the Sovereign Camp of the Woodmen of the World, to Edgar J. Simmons, the husband of the plaintiff. The certificate contained the following stipulation: “If the member holding this certificate should die by his own hand or act, whether sane or insane, the certificate shall be null and void and of no effect.” The only portion of the defendant’s answer material to the decision of this case is as follows: “Defendant further shows that said Edgar J. Simmons, the holder of said certificate of insurance, died by his own act or hand; that is, he committed suicide on July 10, 19'23, which act on his part violated the provisions of said certificate herein above set out.” The verdict was for the plaintiff. The defendant’s motion for a new trial was overruled, and it excepted.

•Taken as a whole the charge of the court was full and fair, and the criticisms of excerpts from it are not meritorious. The sole remaining and controlling question is whether the jury’s verdict can stand under the evidence.

The evidence may be summarized as follows: The insured was found dead in a store run by him on Pine street, near the limits of the city of Albany, Georgia, on July 10, 1923. He had been dead at least half an hour before seen by any witness testifying. The store was a frame building about sixteen by forty feet, located near the highway. He was found lying on his back on the floor near the front of the store, with his head towards the front door, his feet towards the rear door, his right foot under his left, and his hands by his side. The front door was barred and the backdoor open. A thirty-eight-caliber hammerless pistol, with one of the shells fired, was lying on the floor, to his right and near his head. There was a bullet wound through his right temple, and blood about the wound. The bullet passed entirely through his head, coming out on the left side and going through the front glass of a show-case about the height of the head of a man sitting on the floor. The bullet appeared to be “rising the least bit” when it went through the other side of the show-case. A witness swore: “I found the bullet there two or three days afterward.” It was so bruised that the witness could not tell what caliber it was. A witness testified that it would have been impossible for the man to have been standing when lie was shot, and that it appeared that he would have had to be sitting down. Dr. Loot testified that “there were powder burns around where the ball entered the head, indicating that he had been shot at close range.” Two other witnesses, one who helped dress the deceased, and another who assisted in washing the bodj1', swore that they saw no powder burns,—one testifjdng that he thought he would have seen them if there had been any, and the other that he would have seen them had there been any. Another witness, who saw the body about an hour after the shooting, swore that he examined the store and found nothing unusual, nothing to indicate burglary, or a fight, or scuffle. There was a large break in the show-case. “If a bullet is going straight and rapidly it would make a small hole; if slowly and at an angle, a larger hole.” As to the ownership of the pistol a witness for plaintiff swore: “I swapped the pistol for another pistol and turned it over to Mrs. Simmons. I made the trade because she did not care to have that pistol any longer, and wanted to get rid of the pistol. I do not know whether the pistol belonged to Mr. Simmons. Mrs. Simmons said she did not want the pistol any longer, and asked me to trade it off for her. I do not know whether the pistol was hers or his.” Dr. Barnett had known the deceased very well for twelve years, and treated him off and on for about fifteen years, but for no serious illness, his trouble having been malaria, cold, and grippe. The deceased was a hard-working man, attended to his own business, and always paid his debts. He would take a drink, but witness had never seen him drunk. He had never treated the deceased for nervousness, and knew of nothing “interfering with” his health. Another witness, who' lived near the deceased, testified that he appeared to be all right the morning before his death, that he had recently complained of having high blood pressure, that he took him to a doctor a few days before his death, and that he seemed to feel that the doctor was doing him good. Dr. Cook had treated the deceased for alcoholism. His physical condition was good. He had seen the deceased when he had had drinks for four or five days. Sometimes he would be limp in bed. He gave him hypodermics, and emptied his stomach four or five times; had seen him when he was so prostrated he couldn’t walk, and “liis mind would be affected the same as his body.” He was likely to do anything, could not be responsible for .what he did. The doctor had treated him perhaps six or seven times during three or four years. He treated him the morning before the night, of his death, and suggested that he ought to be in the hospital. In his condition the deceased was likely to do anything, likely to kill his wife, his children, or himself. Dr. Cook further swore that he had “turned Mr. Simmons loose about thirty-six hours before he died,” and that he did not know his .condition the afternoon before he died. The deceased was asleep when he left him. It sometimes takes a patient in his condition a week or ten days to become normal. He was in a chronic alcoholic condition. Mr. Tift had known the deceased several years, and had sold him goods from time to time. He saw deceased on the day of his death. He was sick, was complaining of not feeling well, but did not know what his trouble was. He took the deceased for a long ride the afternoon before his death, because he thought it would make him feel better. The deceased was not able to attend to his business. They returned from the ride about an hour before dark, after being-together practically the entire afternoon. Witness knew the deceased was a sick man. He complained of his stomach. He thought the deceased was feeling a great deal better when he left him. He was much more cheerful and in better spirits than at any other time during the day. The deceased did not show any symptoms of drinking, and was not sick enough to require the services of a physician. The verdict of the coroner’s jury was that the deceased came to his death by his own' hand. The evidence in this case indicates that the insured died at about half-past seven o’clock p. m.

Certainly the evidence in this case would have amply sustained a verdict for the insurer, hut the jury found otherwise. The question for this court to determine is not which way the weight of the evidence leaned, but whether the facts and circumstances proved, with all reasonable deductions and inferences therefrom, absolutely demanded a finding in favor of defendant’s plea of suicide. We can not say that they do. "It was night, and at least half an hour elapsed before any witness saw the dead body of the insured. The evidence was contradictory as to whether or not there were powder burns on the body, and there was evidence from which the jury might have concluded that motive for suicide was not clearly shown. The law controlling this case will be found in New York Life Ins. Co. v. King, 28 Ga. App. 607 (112 S. E. 383), and Hodnett v. Ætna Life Ins. Co., 17 Ga. App. 538 (87 S. E. 813). The facts in those cases differentiate them from the case at bar.

Judgment affirmed.

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


text:
    16096.
    Patterson v. The State.
    Decided March 3, 1925.
    Indictment for manufacture of liquor; from Appling superior court—Judge Highsmith. November 11, 1924.

      Hartwell L. Williams, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Luke, J.

There being evidence tending to show that the accused and another were in possession of a whisky still which had recently been in operation, and of a barrel of mash which was itself intoxicating and ready for distillation, and that they were caught in the act of mixing the ingredients for making another barrel of mash, whereupon the accused stated that he was only hired by others to make such liquors and was making the same for them, the verdict finding him guilty of manufacturing intoxicating liquor was not without evidence to support it. Jenkins v. State, 24 Ga. App. 338 (100 S. E. 763); Belcher v. State, 25 Ga. App. 493 (103 S. E. 852). No other question is presented for decision.

Judgment affirmed.

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


text:
    16110.
    CHAPMAN v. THE STATE.
    There was no fatal variance between the allegation in the accusation, that the assault was committed upon “Charlie Iiodges,” and the proof that it was committed upon “Charlie Lee Hodge.”
    Decided March 3, 1925.
    Accusation of assault and battery; from city court of Macon— Judge Jordan. December 6, 1924.

      Hall, Grice & Bloch, for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Bloodworth, J.

The only ground of the motion for a new trial which is insisted upon is as follows: “Because the defendant was accused of an assault upon Charlie Hodges, and all the evidence showed that if any assault was committed, it was committed upon Charlie Lee Hodge, thus constituting a fatal variance between the accusation and the proof.” There is no merit in this ground. It is neither insisted that Charlie Hodges and Charlie Lee Hodge are in fact two different persons, nor that Charlie Hodges, the person alleged in the indictment to be the person assaulted, was a different person from Charlie Lee Hodge, the witness who swore that he had never been known by any other name, but who swore that he was the person assaulted. See Hall v. State, 22 Ga. App. 114 (95 S. E. 936), and cases cited; McLain v. State, 71 Ga. 280 (6); Robinson v. State, 68 Ga. 833 (2); Mitchum v. State, 11 Ga. 615 (2). “Idem sonans is no longer an infallible test. Identitate personae, and not identitate nominis, is and should always have been the true and only issue.” Chapman v. State, 18 Ga. 783 (1). Biggers v. State, 109 Ga. 105, 106 (34 S. E. 210); Fielding v. State, 30 Ga. App. 644 (118 S. E. 601).

Judgment affirmed.

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


author: Bloodwoktii, J.

text:
    16123.
    Tiller v. The State.
    Decided March 3, 1925.
    Indictment for keeping disorderly and lewd house; from Wilkes superior court—Judge Shurley. November 8, 1924.

      Hugh E. Combs, for plaintiff in error.

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

The special ground of tlic motion for a new trial shows no reason why a new trial should he granted; there is evidence to support the verdict; and, the judge who tried the case having approved the verdict, this court will not interfere with it.

Judgment affirmed.

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


text:
    16130.
    Cook v. The State.
   Luke, J.

1. In a prosecution for the offense of 'having intoxicating liquors, alleged to have been committed on a specified date within the statute of limitations, the State is not restricted in its proof to the date so alleged, but may make out its ease by proof that the alleged oSense was committed on that date or on any other date or dates within two years prior to the filing of the indictment or accusation. Holmes v. State, 7 Ga. App. 570 (3) (67 S. E. 693). The accused is protected against a subsequent prosecution for any such offense, whether the original charge, on the trial thereof, was or was not proved. Craig v. State, 108 Ga. 776 (2) (33 S. E. 653).

Decided March 3, 1925.

Possessing intoxicating liquor; from city court of LaGrange— Judge Duke Davis. November 20, 1924.

J. B. Terrell Jr., for pzlaintiff in error.

L. L. Meadors, solicitor, contra.

2. In the trial of such a case, evidence tending to show that, upon a search of the defendant’s premises, whisky was found concealed in his dwelling house, or in an outhouse on the premises, or in a field adjoining the dwelling house, or at any other place upon the premises, is not subject to the objection that it is irrelevant. O’Berry v. Davis, 31 Ga. 755 (2). Whether the accused or some other person had,, possessed, or eontz'olled it is a question for determination under all the evidence.

3. Since articles taken from the premises of the accused, tending to establish his guilt of the offense with which he is charged, are admissible in evidence against him, notwithstanding the articles were discovered by an unlawful search (Calhoun v. State, 144 Ga. 679, 87 S. E. 893), the l-efusal of the court to allow the witness who made the search to answer whether the search was with or without warrant affords no cause for a zzew tidal.

4. In a prosecution for having intoxicating liquors, where there is evidence tending to show that the accused repeatedly committed the alleged offense at times within the statute of limitations, additional evidence, tending to show commission of the same offense by the accused at a time not within the statute of limitations is not subject to the objection that it is irrelevant. It is relevant on the question as to intent, and as a cii-eumstance eoiToborative of the evidence z’elating to transactions within the statute. Lee v. State, 8 Ga. App. 413 (3) (69 S. E. 310); Bass v. State, 103 Ga. 227 (29 S. E. 966); Nobles v. State, 127 Ga. 213 (3) (56 S. E. 125).

5. The record discloses no reversible error.

Judgment affirmed.

Broyles, C. J., and Bloodroorlh, J., concur.


author: Bizoyles, O. J.

text:
    16063.
    Dunson Brothers Company v. Towns.
    Decided March 4, 1925.
    Complaint; from city court of LaGrange—Judge Duke Davis. October 15, 1924.

      M.- U; Mooty, J; T.-Thomasson, for plaintiff. '

      Lovejoy & Mayer, for defendant.
   Bizoyles, O. J.

This beiizg the first grant of a new trial, and it not affirmatively appearing from the record that the verdict was absolutely demanded by the evidence, the judgment is

Affirmed.

Luke and Bloodtoorih, JJ., concur.


author: Broyles, C. J.

text:
    16067.
    Georgia, Florida & Alabama Railway Co. v. Pippin.
    Decided March 4, 1925.
    Action for damages; from Bandolph superior court—Judge Yeomans. November 3, 1924.
    The action was against the last of connecting carriers, for damages on account of the death of five mules and of injury to two others. The defendant demurred to the petition generally and specially, and the court allowed the plaintiff to amend the petition in various particulars, over the objections that no cause of action was set forth in the original petition, that the amendment set forth a new and distinct cause of action, and that the original cause of action was based on common-law liability and the amendment set forth a statutory liability. A demurrer to the petition as amended was overruled, and the defendant excepted, alleging error in the allowance of the amendment and in the overruling of the demurrer.
    The original petition alleged, in paragraph 2, that the plaintiff bought five mules and two horses from a named company of St. Louis, Missouri, which shipped them to him at Cuthbert, Georgia, in a described car over named railroads to Bichland, Georgia, at which point the last-named railroad connected with the defendant, which undertook to transport and deliver the car to the plaintiff at Cuthbert. By amendment it was alleged that “The sai'd live stock were received by'the initial carrier [named] in good order.” Paragraphs 3, '4, 5, 6, and 7, which were stricken by amendment, alleged: (3) The car of live stock reached Cuthbert, Ga., about 8 o’clock a. m. on September 8, 1923, and the defendant immediately placed it at a live-stock pen and permitted the live stock to remain unloaded until after 11 o’clock a. m. of the same date. (4) The defendant did not notify the plaintiff as to the arrival of the live stock until after the hour last mentioned. (5) The time mentioned above was hot weather and the live stock became overheated because of being kept penned in the car more than three hours without moving, and this resulted in damage to two mules and the death of five. (6) It was impossible for the plaintiff to detect the overheating and damage when he received the live stock, and he did not at that time make exception to the condition of the stock. (7) In a few hours after the unloading of the live stock several of the mules became very ill, and, although the plaintiff employed skilled veterinary service and gave them all attention possible, five of them died and twb were damaged. Paragraph 8 g'ave the cost of the animals. Paragraphs 9, 10, and 11, which were stricken by amendment, contained allegations as to damage. Paragraph 12 alleged that written claim for the loss and damage was made to the delivering carrier by the plaintiff in six months after the delivery of the live stock. Paragraph 13, which was stricken by amendment, alleged that the defendant was negligent in not notifying the plaintiff, either in advance or immediately on arrival of the car, that the live stock was ready to be delivered to him. Paragraph 14 alleged that the defendant “was also negligent; after it had failed to notify . . petitioner of the arrival of said car of live stock, to permit them to remain loaded for over three hours after the car had been placed for unloading.” The next paragraph contained a prayer for damages in the sum of $867.45.
   Broyles, C. J.

The original petition set out a cause of action; the amendment to the petition was properly allowed; and the overruling of the demurrer to the petition as amended was not error.

Judgment affirmed,

hulee and Blood/ioorth, JJ., concur.

In lieu of paragraphs 3, 4, 5, and 6, it was alleged, by amendment, that on September 8, 1923, the car of live stock was delivered to the plaintiff in bad order, in that seven of the mules were sick, which condition was not visible and manifest and was not observed by the plaintiff until they had been carried to his barn. The plaintiff does not know the name and nature of the disease. In lieu of the stricken paragraph 7 it was alleged, that after receiving the mules the plaintiff drove them to his barn, a distance of about 300 yards, and immediately made further examination of them and discovered that seven of them were sick, and immediately procured the services of a skilled veterinary surgeon and used all efforts in his power to save the mules; nevertheless five of them died on account of the said sickness and two of them were permanently injured. The mules were sick at the time of their delivery by the defendant to the plaintiff, and the death of five of them was the result of the said sickness. Paragraph 8 was amended by adding specific items of damage. Paragraph 14 was amended by striking the first sentence, ending with the word “unloading,” and alleging that the total damages “on account of defendant’s failure to deliver said car of live stock to petitioner in good order amounts to $867.45 as aforesaid; and . . that he is entitled to interest on said sum since the date of his demand, which was made on September 20, 1923, . . and that his demand was made upon the defendant for said sums which were fully itemized as hereinbefore set out.”

W or rill & Patterson, Smith & Miller, T. 8. Hawes, for plaintiff in error,

cited: 113 Ga. 15; 87 Ga. 708, 710; 118 Ga. 292 (2); 2 Ga. 249; 124 Ga. 322 (8), 331.

l'V. H. Gurr, contra,

cited: 31 Ga. App. 757; Id. 756; 5 Ga. App. 500; 2 Ga. App. 323; 129 Ga. 473; 144 Ga. 683; 7 Ga. App. 331; 17 Ga. App. 453; 23 Ga. App. 255; 119 Ga. 371; 135 Ga. 113; 7 Ga. App. 250; Civil Code (1910), §§ 2730, 2712-13; 88 Ga. 805; 91 Ga. 385 (3); 110 Ga. 659.


author: Broyi.es, O. J.

text:
    16074.
    American Machinery Company v. Arbuthnot.
    Decided March 4, 1925.
    Rehearing denied March 27, 1925.
    Action for breach of contract; from Fulton superior court-judge Humphries. November 11, 1924.
   Broyi.es, O. J.

1. When the several excerpts from the charge of the court which are complained of are considered in the light of the exceptions thereto, the charge as a whole, and the facts of the case, no reversible error appears.

2. The case having proceeded to a verdict and judgment in favor of the plaintiff, and the defendant having made a motion for a new trial which included the ground that the verdict was contrary to the evidence and without evidence to support it, the assignment of error upon the refusal of the court to award a nonsuit will not be considered.

3. Under repeated rulings of the Supreme Court and of this court, all special grounds of a motion for a new trial must be complete and understandable within themselves. Several grounds of the amendment to the motion for a new trial complain of the exclusion of certain testimony of J. L. Almand, a witness for the defendant, showing, or tending to show, that the person who made the contract in question with the plaintiff was not the defendant’s agent in the transaction. These grounds are fatally defective, in that they do not disclose what official connection, if any, Almand had with the defendant company, or that he was authorized to speak for it.

4. None of the other special grounds of the motion for a new trial shows reversible error.

5. The verdict was authorized by the evidence.

Judgment affirmed.

Lulce cmd Bloockvorth, JJ., ooneur.

TFaZier 8. Dillon, for plaintiff in error.

Garitón IF. Binns, Dorsey, Shelton & Dorsey, contra.


author: Bboyles, C. J.

text:
    16076.
    Lee v. The State.
    Decided March 4, 1925.
    Indictment lor larceny from house; from Fulton superior court —Judge Howard. October 25, 1924.

      Braclcett & Tindall, Branch & Howard, J. IF. LeCraw, for plaintiff in error.

      John A. Boylcin, solicitor-general, JS. A. Stephens, Ralph II. Pharr, contra.
   Bboyles, C. J.

The evidence tending to connect the accused with the offense charged was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The verdict, therefore, was contrary to law and the evidence, and the trial judge erred in refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworlh, JJ., concur.


author: Bboyles, O. J.

text:
    16079.
    Lewis v. Lewis.
    Decided March 4, 1925.
    Complaint; from city court of Savannah—Judge Freeman. October 31, 1924.

      J. Hartridge Smith, for plaintiff in error.

      W. G. Warnell, contra.
   Bboyles, O. J.

The motion for a new trial in this ease is based upon the usual general grounds only; the evidence was sufficient to authorize the verdict, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Broyles, C. J. Broyles, C. J. Bloodworth, J.,

text:
    16082.
    SEABOARD AIR-LINE RAILWAY COMPANY v. PARRIETT.
   Broyles, C. J.

1. This was an action against the railway company for personal injuries. The petition as amended set out a cause of action, and the court properly overruled the general demurrer interposed.

2. While there were material conflicts in the evidence, the jury were authorized, under the pleadings and- the evidence, to find as follows: The plaintiff, while walking within the corporate limits of the city of Athens, between the main-line track and a passing 'track of the-defendant, along' a smooth walk or path provided by the defendant (which walk was so frequently used by the public, with the knowledge and consent of the defendant, that it ivas the duty of the defendant to have anticipated her presence at that time and place), was ’ struck and severely injured by a passenger-train of the defendant, which was running on the main track at a high and dangerous rate of speed, and in violation of a city ordinance which required it to come to a full stop within fifty feet of Pulaski street; that the plaintiff, while walking between the tracks as aforesaid and before she was struck, observed a freight-train approaching her, which was moving over the passing track and making a very loud noise, and that, to escape being struck by that train, she stepp'ed away from it and towards the main track, and continued walking between the main track and the passing track until she was struck by the passenger-train, which approached her from her rear; that she was so engrossed in watching the moving freight-train and by the noise it made, and in keeping a safe distance from it, that she was not aware of the approach of the passenger-train until it struck her; that the place where the injury occurred was not within the switch-yard proper of the defendant; that the passenger-train was running at such a high rate of speed that the plaintiff, although the engineer of the train applied the emergency brakes as soon as her presence was discovered, was dragged by the train, after she was struck, a distance of 240 feet, and that this rate of speed, at the time and place of the injury, constituted negligence on the part of the defendant’s employees who were operating the train; that at the time of her injury the plaintiff was in the exercise of ordinary care, and that the defendant’s employees, operating the train, were guilty of a lack of such care. See, in this connection, Tice v. Central of Georgia Ry. Co., 25 Ga. App. 347 (1 f, 2 b-c-d), and citations; Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251 (1), and citations; Atlantic Coast Line R. Co. v. Adams, 7 Ga. App. 146 (1), (2); Crawford v. Southern Ry. Co., 106 Ga. 870, 877; Southern Ry. Co. v. Chatman, 124 Ga. 1026 (5); Atlantic Coast Line R. Co. v. Burroughs, 20 Ga. App. 197 (2); Williams v. Southern Ry. Co., 11 Ga. App. 305 (1, 2, 3); Seaboard Air-Line Ry. Co. v. Deal, 20 Ga. App. 246 (1); Western & Atlantic R. Co. v. Jarrett, 22 Ga. App. 314 (4); Binion v. Central of Ga. Ry. Co., 12 Ga. App. 663, and authorities cited; Central of Ga. Ry. Co. v. Thompson, 25 Ga. App. 715 (1); Kendrick v. Seaboard Air-Line Ry., 121 Ga. 775, 777; Western & Atlantic R. Co. v. Bailey, 105 Ga. 100; Southern Ry. Co. v. Brock, 132 Ga. 858 (9); Central Railroad v. Brinson, 70 Ga. 207 (2); Georgia Railroad v. Williams, 74 Ga. 723 (1).

Decided March 4, 1925.

Rehearing denied April 21, 1925.

3. Under the immediately preceding ruling and all the facts of the case, the verdict in favor of the plaintiff was authorized by the law and the evidence, and the court did not err in overruling the motion for a new trial, which was based upon the usual general grounds only.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Damages; from city court of'Athens—Judge Bradwell. November 8, 1924.

Application for certiorari was denied by the Supreme Court.

John B. Gamble, Erwin, Erwin & Nix, for plaintiff in error.

L. C. Bucher, J. T'F. Arnold, Joel & Elliott, Dorsey Davis, contra.

ON MOTION EOR REHEARING.

Broyles, C. J.

It is contended by the plaintiff in error, in an amendment to its motion for a rehearing, that this case is controlled by the recent rulings of the Supreme Court and of this court in Atlantic Coast-Line R. Co. v. Fulford, post, 631, which case (after certified questions therein had been answered by the Supreme Court) was decided by this court on April 11, 1925. 159 Ga. 812 (127 S. E. 274). While the cases are very similar, there is, as we view them, one vital distinction. In the Fulford case the only reason assigned in the petition why the decedent failed to observe the approach of the train which was approaching from his rear and which killed him was that he “was prevented from hearing [italics ours] its approach by the operation of a number of motor-vehicles and other locomotives in and around its yards, near the point where petitioner’s husband was struck. The operation of the machinery of the water and light department of the City of Thomasville, located near the point where the injury occurred, also contributed to the general noise that rendered it impossible for petitioner’s husband to know of the approach of said locomotive.” Anri the Supreme Court held, in substance, that as the petition alleged merely that the decedent “was prevented from hearing [italics ours] the approaching train by noises of other locomotives, machinery, and the like, in the vicinity, [and] no other reason [italics ours] for his conduct being shown,” the petition showed upon its face that he “was guilty of such negligence as to bar a recovery for his death on account of the negligence of the railway company.” It will be observed that in that case there was no allegation that the decedent was so engrossed in looking at some other moving locomotive or other object that he was not aware of the train approaching from his rear until he was struck by it. In fact, the petition did not allege that any of the noise-making objects that prevented the decedent from hearing the train was in motion. As was said, in substance, by Chief Justice Bleckley in Smith v. Central Railroad Co., 82 Ga. 806, it was not alleged that the injured person’s attention was directed to other trains that were near, and thus withdrawn from the danger that threatened. In the instant case the plaintiff alleged and proved not only that the noise of the passing freight-train prevented her from hearing the approaching passenger-train that injured her, but that she was so engrossed in watching the moving freight-train, and in keeping a safe distance from it, that she was unaware of the approach of the passenger-train until she was struck by it.

As was said by Mr. Justice Little in Western & Atlantic R. Co. v. Bailey, 105 Ga. 101, 102: “The presumption that a person apparently of full age and capacity, who is walking or standing on the track, will leave it in time to save himself from harm, will not avail when the person who is on the track appears to be intoxicated, asleep, or othenvise off his guard, etc. [italics ours]. Pierce on Railroads, 331, and authorities cited. A like doctrine is announced in the case of Central Railroad v. Brinson, 70 Ga. 207. The company is at liberty to act on this presumption, and to continue to act on it, until it discovers that the person is not likely to escape the peril, and then it is bound to exert itself to avoid the calamity. Georgia Railroad v. Williams, 74 Ga. 736.”

The other cases cited in the original motion for a rehearing are distinguished from the instant case by their particular facts.

Rehearing denied.

Luke, J., concurs.

Bloodworth, J.,

dissenting. I think that a rehearing should be granted.


text:
    16089.
    Weems v. Albert Pick & Company.
   Broyles, C. J.

1. A. E. Weems, of Macon, Georgia, gave to a salesman of Albert Pick & Company, a corporation of Chicago, Illinois, a written order for certain goods, which order contained the following stipulation: “This order not binding on Albert Pick & Company unless accepted by one of its executives at the home office.” There Was no binding contract between the parties until this condition as to acceptance had been complied with. Atlanta Buggy Co. v. Hess Spring & Axle Co., 124 Ga. 338 (1, 2) (52 S. E. 613, 4 L. R. A. (N. S.) 431); Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (2) (93 S. E. 511).

(a) Since it was not alleged or shown that “C. H. Kruger” was an executive officer of Albert Pick & Company the following letter does not show a compliance with the condition as to acceptance:

Decided March 4, 1925.

Rehearing denied April 15, 1925.

“Albert Pick & Company.

Chicago, U. S. A., July 6, 1923.

“Mr. A. E. Weems, Macon, Georgia.

“Dear Sir: We are pleased to acknowledge receipt of your recent order placed with our representative, Mr. R. L. Hay, in the amount of $2,897.71, which is having attention and will go forward as promptly as possible. Thanking you for your consideration, we remain,

“Yours very truly,

“Albert Pick & Company

“C. H. Kruger.”

“ C. H. Kruger

“feb.”

See, in this connection, Robinson v. Weller, 81 Ga. 704 (8 S. E. 447); George W. Muller Mfg. Co. v. Benlon, 137 Ga. 411 (2) (73 S. E. 669); Goods Roads Machine Co. v. Neal, 21 Ga. App. 160 (2) (93 S. E. 1018); Evans v. Atlanta Paper Co., 21 Ga. App. 114 (1), 117, 118 (93 S. E. 358); Pennsylvania Fire Insurance Co. v. Sorrells, 23 Ga. App. 398 (2) (93 S. E. 358); Goldberger v. Morris, 94 N. Y. Supp. 359.

(h) It not being directly alleged in the defendant’s plea that “Kruger” was an executive officer of Albert Pick & Company, it will not be presumed that he was such an officer from the other facts and circumstances alleged in the plea. The presumption of authority is one of evidence, and not of pleading, and the authority should be positively alleged. See, in this connection, Wright v. Sides, 15 Ga. 160 (3).

(c) Nor can defective pleadings be aided by the maxim “res ipsa loquitur.” Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (4) (50 S. E. 974).

(d) The contention of the plaintiff in error, that the shipment by the defendant in error of a portion of the goods specified in the written order was a ratification of the entire contract, is without merit, since no binding contract was shown, but merely an offer to contract, which was not accepted in the manner stipulated in the offer. Chickamauga Mfg. Co. v. Augusta Grocery Co., 23 Ga. App. 163 (98 S. E. 114).

2. A previous course of dealings between the same parties may be shown, to explain an ambiguous contract, but not to alter or modify the clear and unambiguous stipulations of a writing complete within itself. Civil Code (1910), §§ 5791, 5792, 5793; Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (2), 330 (2) (14 S. E. 556); Stamey v. Western Union Telegraph Co., 92 Ga. 613 (2), 616 (18 S. E. 1008); Brunswig v. East Point Milling Co., 11 Ga. App. 9 (2) (74 S. E. 448).

3. Under the above-stated rulings the court did not err in striking certain portions of the amended plea, as complained of by the plaintiff in error.

4. In view of the particular facts of the case, there was no error in any of the court’s rulings upon the admissibility of evidence.

5. The judge, sitting by consent without the intervention -of a jury, did not err in rendering a judgment in favor of the • plaintiff for the full amount sued for, or thereafter in overruling the motion for á new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Complaint; from city court of Macon—Judge Jordan. November 22, 1924.

Albert Pick & Company, a corporation, sued A. E. Weems on an open account for $532.50, the price of certain blankets and carpeting. The defendant in his plea set up that these goods were furnished as a part' of the goods included in an .order accepted by the plaintiff and constituting a contract, which the defendant failed and refused to complete; and he sought to recoup damages for the alleged breach of contract. The court, on demurrer, struck those parts of the plea which set up this defense. The plaintiff contended that there was no acceptance of the order and no contract as alleged, and it was testified that the goods included in the account sued on were shipped by mistake. The judge (who by consent tried the case without a jury) rendered judgment against the defendant for the amount sued for.

Walter DeFore, J ames C. Fstes, for plaintiff in error.

Jones, Park & Johnston, contra.


author: Broyles, O. J.

text:
    16092.
    Mulling v. Kingery & Bland.
    Decided March 4, 1925.
   Broyles, O. J.

1. The refusal to continue a ease on account of tlie absence of witnesses is not error where it appears that they do not reside in the county in which the case is pending. Civil Code (1910), § 5715; Hathcock v. McGouirk, 119 Ga. 973 (1) (47 S. E. 563).

(a) It is no abuse of discretion to deny a continuance where the motion is based upon the absence of nonresident witnesses whose testimony might have been taken, but was not, by interrogatories, although the movant relied upon their promise to attend court. Rome Railroad Co. v. Barnett, 94 Ga. 446 (1) (20 S. E. 235).

2. The second and third grounds of the amendment to the motion for a new trial complain of the admission of certain documentary evidence, but, as the evidence is not set forth in the grounds or attached thereto as exhibits, these grounds are too defective to be considered by this court.

3. In view of the affidavits submitted by the movant and the counter-showing made thereto, it does not appear that the judge abused his discretion in overruling those grounds of the motion for a new trial which were based upon alleged newly discovered evidence.

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

Judgment, affirmed.

Luke and Bloodxoorih, JJ., conou/r.

Complaint; from Tattnall superior court—Judge Summerall presiding. September 25, 1924.

E. E- Elders, E. C. Collins, Kirkland & Kirkland, for plaintiff in error.

W. E. Lanier, J. V. Kelley, contra.


text:
    16095.
    Mull v. The State.
    Decided March 4, 1925.
    Indictment for assault with intent to murder; from Putnam superior court—Judge Park. November 10, 1924.

      B. C. Jenkins, for plaintiff in error.

      Doyle Campbell, solicitor-general pro tern., A. Y. Clement, contra.
   Broyles, C. J.

In the light of the entire charge of the court and the facts of the case, the several exceptions to the charge are without substantial merit; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


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

text:
    16122.
    O’NEAL v. THE STATE.
    The evidence in this case is wholly circumstantial, and is insufficient to establish the defendant’s guilt to the exclusion of every other reasonable hypothesis.
    Decided March 4, 1925.
    Indictment for sending threatening letters; from Montgomery superior court—Judge Graham. November 8, 1924.

      Saffold & Sharpe, J. Wade Johnson, for plaintiff in error.

      M. E. Boyer, solicitor-general, M. B. Calhoun, W. A. Wooten, contra.
   Luke, J.

J. M. O’Neal was indicted in seven counts for sending certain letters, all anonymous, in which the writer threatened to kill the prosecutor, W. T. McArthur, and to burn his property. Each count was based on a .different writing. The accused was acquitted on the first six counts and convicted on the seventh. His exception is to the judgment overruling his motion for a new trial. The indictment was based on that part of section 119 of the Penal Code (1910) which declares that “If any person shall knowingly send or deliver any letter or writing, . . threatening to maim, wound, kill, or murder another, . . or to burn or otherwise destroy or injure his house or other property, . . he shall be punished,” etc. The evidence is voluminous and creates a strong suspicion of guilt, but it is wholly circumstantial and does not exclude every other reasonable hypothesis. It will suffice here to point out what it fails to show, rather than what it shows. The offense being to “knowingly send or deliver” a letter of the character in question, it is not, of course, essential to the State’s case to show that the letter was written either by or at the instance of the accused; but such a fact, if proved, would constitute a very strong circumstance against him, tending to connect him with the sending or delivery of the letter. From the brief of evidence brought to this court it appears that the particular letter resulting in the defendant’s conviction was found by a rural carrier in a rural mail-box, after which it went the usual and regular course until it was delivered to the prosecutor, without any evidence to connect the accused, either directly or indirectly, with the writing of it, or with the mailing of it, and without any evidence conclusively showing that he even had an opportunity to mail the letter where it was mailed. While the State’s counsel contends that the accused both wrote and posted the letter, yet no witness testified that it was in his handwriting; or that he was seen to write or cause it to be written, or that he was ever in possession of it, or that he admitted having written it or having had any connection whatever with the writing of it, nor was any of his handwriting proved and introduced in evidence for the purpose of comparison with the handwriting of the letter in question. Consequently, the contention that the accused is the author of the letter is without any evidence to support it. Cocroft v. Cocroft, 158 Ga. 714 (124 S. E. 346). Without the inference that would naturally flow from proved authorship, and in the absence of any evidence that the accused mailed the letter or caused it to be mailed, or ever had it in his possession or control, he is not sufficiently connected with the sending or delivery of the letter to authorize his conviction. We are not unmindful of the fact that some of the other letters, set out in the first six counts of the indictment, were delivered to the prosecutor by the accused, he claiming to have found them posted on trees or buildings about the premises. But we are not willing to say that the jury was so inconsistent as to repudiate that evidence by acquitting the accused-on the counts to which it related directly, and accepted it on the seventh count, to which it has only an indirect relation. See, in this connection, Kuck v. State, 149 Ga. 191 (1) (99 S. E. 622). The State’s counsel further contends that certain statements of the accused prior to his trial “amount practically to a confession.” The evidence shows two such conversations: one with the witness Oscar Bailey, in which the accused protested his innocence and at the same time predicted that he would be convicted; the other with the witness J. D. Mallard, a detective employed to discover evidence, in which the accused predicted his conviction and begged for mercy, without any reference, so far as the evidence shows, to the question of his actual guilt or innocence. Such evidence does not amount to proof of a confession, however freely and voluntarily made, nor does it relate to any one count of the indictment any more than to all the others. In this state of the record the verdict can not stand.

Judgment reversed.

Bloodworlh, J., concurs. Broyles, O. J., dissents.

Broyles, C. J.,

dissenting. I think that the evidence in this case was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. The incriminatory admissions of the defendant, together with the other evidence adduced, amply authorized his conviction of the offense charged. In my opinion the judgment of the lower court should be affirmed.


text:
    16124.
    Wright v. The State.
    Decided March 4, 1925.
    Conviction of possession of liquor; from Wilkes superior court— Judge Shurley. November 8, 1924.

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

      M. L. Fells, solicitor-general, contra.
   Broyles, C. J.

The motion for a now trial contained the usual general grounds only; there was some evidence authorizing the verdict; and, the finding of the jury having been approved by the trial judge, this court is powerless to interfere.

Judgment affirmed.

Lulee and Bloodworlh, JJ., concur.


text:
    15744.
    Louisville & Nashville Railroad Company et al. v. Tomlin, administratrix.
    Decided March 6, 1925.
    Rehearing denied March 27, 1925.
    Action for damages; from city court of Atlanta—Judge Reid. May 22, 1924.
    Certiorari was granted by the Supreme Court.

      McDaniel & Neely, for plaintiff in error.

      Harwell, Fairmun & Barrett, contra.
   Broyles, C. J.

1. When considered in the light of the facts of the case and the entire charge of the court, the instructions complained of contain no reversible error.

2. The verdict in favor of the plaintiff, for $30,618, was authorized by the evidence, and is not shown to be excessive. The refusal to grant a.new trial was not error.

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., dissents.


author: Luke, J. Luke, J.,

text:
    15775.
    WATKINS MEDICAL CO. v. HARRISON, administrator, et al.

    1. As a matter of law, any change made in an instrument after its execution, which is impliedly authorized by the signers of the instrument and which merely expresses what would otherwise be supplied by intendment, is immaterial.
    2. The court erred in overruling the plaintiff’s demurrer to the answer as amended; and all proceedings thereafter were nugatory.
    Decided March 6, 1925.
    Complaint; from Pierce superior court—Judge Summerall. June 5, 1924.
    The J. R. Watkins Medical Company sued S. B. Goen, as-principal, and J. R. Harrison and Wyley Carter, as sureties, upon a certain sale contract, the material parts of which, so far as this controversy is concerned, may be stated as follows: The company agreed to sell Goen from time to time, during a period extending from December 1, 1915, the date of the contract, to March 1, 1917, such articles of merchandise as it handled, and Goen promised to pay for such merchandise along as he bought it, “and at the termination of this agreement to pay the whole amount therefor then remaining unpaid, . . but such payments, or any of them, may be extended by the said company without notice to the sureties hereof;” and it was agreed that “this is the complete,'entire, and only agreement between the said parties, and that it shall not be varied, changed, or modified in any respect except in writing executed by the parties hereto.” The contract concluded as follows: “The indebtedness due at the date of this Agreement from the party of the second part to the party of the first part for goods and other articles sold and delivered to him as vendee, upon his order and request, is hereby mutually agreed to be the sum of seventeen hundred ninety-four and 02/100 dollars, which said sum and indebtedness the second party hereby promises and agrees to pay during the term of this agreement, and payment of which is hereby so extended.” Here Goen and the Company signed the contract. Below their signatures appeared the following, signed by the sureties: “In consideration of one dollar in hand paid by The J. R. Watkins Medical Company, the receipt whereof is hereby acknowledged, and the execution of the foregoing agreement by said company, and the sale and delivery by it to the party of the second part, as vendee, of its medicines, extracts and other articles, and the extension of the time of payment of the indebtedness due from him to said company as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, and jointly, severally, and unconditionally promise and guarantee the full and complete payment of said sum and indebtedness and for said medicines, extracts and other articles, and of the prepaid freight and express charges thereon, at the time and place, and in the manner in said agreement provided.”
    Goen filed no defense, and a judgment was taken against him for $1,881.03, the full amount sued for. The sureties filed a plea admitting that they signed the contract, but asserting that, without their knowledge or consent, it was thereafter matérially altered in two particulars: firstly, in that “$l,'?'9é.02,” written above the contract, did not appear there when they signed it, but was placed there afterwards; and, secondly, that “seventeen hundred ninety-four and 02/100,” appearing before the word “dollars,” in the body of the contract, was not written in the contract when they signed it, but that the line whereon said words were written was blank and contained no written or printed sums or amount whatever, and that said words were inserted in the contract after they signed it. The plea further stated that said- alterations were material and intentional, and were made by plaintiff, who claimed an interest under said contract, for the purpose -and with the intention of defrauding defendants out of $1,794.02. Plaintiff demurred to the plea as follows: “Said answer as amended does not show such alteration of the contract sued on as constitutes a defense to the suit of plaintiff in this case.” The court overruled the demurrer, and the jury sustained the plea by finding for the plaintiff a verdict against the sureties for only $87.01. Plaintiff excepted pendente lite, and now excepts, to the overruling of this demurrer; and also excepts to the overruling of a motion for a new trial.

      8. F. Memory, for plaintiff.

      Robert G. Mitchell Jr., for defendants.
   Luke, J.

(After stating the foregoing facts.) The majority of the court think that the trial judge erred in overruling the plaintiff’s demurrer to the amended answer of the sureties. While the said answer alleges that “$1,794.02,” past indebtedness of Goen, was inserted in the contract after the sureties signed, it does not allege that the principal, Goen, was not due the plaintiff this amount at the time they signed the contract; and there is direct and positive evidence that-he did owe the plaintiff this amount at that time. Neither does the answer deny that the contract contained the provision that the principal for whom the defendants were sureties was, “at the termination of this agreement, to pay the whole amount then remaining unpaid,” whatever it might be. Neither does the answer deny that the surety clause, signed by the defendants, specified, as a part of the consideration for their signing, “the extension of the time of payment of the indebtedness due from him [Goen] to said company as therein provided.” Since the entire contract contemplated that there was some past indebtedness, and that the sureties were liable for whatever amount might be due by the principal, and they “unconditionally promise and guarantee the full and complete payment” thereof, and since the correctness of the amount alleged to have been inserted in the contract is not disputed, the insertion of the correct amount, if made, was not a material alteration of the contract, according to its reasonable intendment at the time it was signed. Furthermore, under the particular wording of this contract, it might reasonably be held that when the sureties signed it and turned it over to the principal Goen, they impliedly authorized the insertion of the correct amount of past indebtedness in the space provided therefor. In the case of Dr. Ward’s Medical Co. v. Wolleat, 199 N. W. 738, the signers of a surety contract, similar to the one now under consideration, set up as a defense that the contract was materially altered by filling in the amount of the existing indebtedness of the principal, after the execution of the contract, and claimed that this alteration discharged them from liability on the contract; and the Supreme Court of Minnesota in that case said: “The correct amount thereof was inserted in the blank space. This being so, the legal effect of the contract was not disturbed, even though we may concede that its evidentiary effect was enhanced. The contract itself was not made to speak a different language in legal effect. Its identity was not lost. The amount inserted being correct, it could do no harm. Such is not a material alteration. The insertion of the correct amount did not in the least disturb the equilibrium of their legal liability arising out of the contract as they executed it.” And in the case of Angle v. N. W. Life Ins. Co., 92 U. S. 330, it was held that “where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument so delivered carries on its face an implied authority to complete the same by filling up the blanks.”

Since the court erred in overruling the demurrer to the answer as amended, all the further proceedings were nugatory.

Judgment reversed.

Broyles, 0. and Bloodworlh, J., concur. Luke, J., dissents.

Luke, J.,

dissenting. Boiled down, the controlling questions in this case are: (1) Was the alleged insertion of the words “seventeen hundred ninety-four and 02/100” in the contract a material alteration? And (2) if so, did not the sureties consent to it when they signed the contract and permitted it to be returned to the company ?

“If a written contract be altered intentionally, and in a material part thereof, by a person claiming a benefit under it, with intent to defraud the other party, such alteration voids the whole contract, at the.option of the other party. If the alteration be unintentional, or by-mistake, or in an immaterial matter, or not with intent to defraud, if the contract as originally executed can be discovered and is still capable of execution, it will be enforced by the court.” Civil Code (1910), .§ 4296. “The materially of an alteration is a question of law; the fact of an alteration is a question for the jury.” Civil Code (1910), § 4297 material alteration is one which changes the legal effect of the instrument.” 1 R. C. L. 966. In Broughton v. West, 8 Ga. 250, Justice Nisbet said: “Anything will be material, I take it, which varies the rights and obligations of the parties in the minutest particular.” In the case of Heard v. Tappan, 116 Ga. 930 (43 S. E. 375), the instrument declared on, after setting out that the debt was secured by certain property, read as follows: “This is not to affect the papers now held against us hy said payee, but is for money, supplies, etc., furnished and to be furnished us the present year, and also additional security for the amounts now due by us to said payee, as appears from his books of account and papers held by said payee against us, amounting at this date to $325.00.” The suit was against Ashley as principal, and Heard as security. Judgment was taken against Ashley by default. Heard swore that the figures 325 and the dollar mark were not in the instrument when he signed it, and that had they been inserted he would not have signed it. This evidence was contradicted, and the jury found against him. The court held that it was bound by the verdict of the jury as to the alteration; and also said: “The alteration complained of by the answer of the defendant was the addition of the figures with the dollar mark. We are of the opinion that if such alteration had been made, it was a material alteration.” “Any change made in an instrument after its execution, which merely expresses what would otherwise be supplied by intendment is immaterial.” 2 Corpus Juris, 1193. “When a person occupies the position of a surety, the rule is especially strict that he may insist on the very terms of his contract.” 1 R. C. L. 1175; Civil Code (1910), §§ 3543, 3544. The contract in question provides for two distinct liabilities,—one to pay a past-due indebtedness, the other to secure such future indebtedness of the principal as he might contract during the term of the agreement. The former was $1,794.02, and the latter, as .shown by the evidence and admitted by the parties, was $87.01. '-The form .of contract was evidently prepared by the company. The instrument would have been perfectly good ahd binding upon all the parties had the past-due indebtedness been entirely omitted. If, as the jury found, the only place in the body of the contract for inserting any past-due indebtedness was absolutely blank when the sureties signed, it,-1 think it could be said with better reason that they intended to assume only the future indebtedness than to conclude that they undertook to become liable not only for that, but also for the amount already past due. Nor do I think that the conclusion stated above is changed by the fact that the sureties signed the contract and allowed it to be returned to the company with the place for inserting the past-due indebtedness blank. “It is after all a mere question of assent” (1 R. C. L. 1013), and it would indeed be going far afield to assume such assent in the case, of a contract like the one under consideration.

For these reasons I think the amended answer of the sureties set up a legal defense, and the court properly overruled the demurrer to it.


author: Pee Cubiam. Luke, J.,

text:
    16016.
    Martin v. The State.
    Decided March 6, 1925.
   Pee Cubiam.

1. An accusation alleging that the accused “did unlawfully have, control and possess spirituous, vinous, malted and fermented liquors, and alcoholic compounds” sufficiently states the offense. Park’s Ann. Code, § 448 (b); Brown v. State, 8 Ga. App. 691 (1) (70 S. E. 40); Lewis v. State, 17 Ga. App. 445 (1) (87 S. E. 709); Harris v. State, 21 Ga. App. 796 (95 S. E. 321).

2. The further averment that such liquors were not pure alcohol to be used for medicinal, mechanical or scientific purposes, nor wine to be used for sacramental purposes, was mere surplusage. McAdams v. State, 9 Ga. App. 166 (2) (70 S. E. 893).

3. Where an accusation, duly filed in the city court of Camilla, alleged that it was “founded on the affidavit of the prosecutor, A. C. Strickland, dated 13th day of September, 1924,” and on the back of it was the entry, “Prosecutor, A. C. Strickland,” and there was a warrant of record in the case, with an affidavit as described in the a.ccusation, charging the accused with the offense of “misdemeanor,” a demurrer to the accusation, on the ground that “the name of the real prosecutor in the case does not appear upon same as such,” was properly overruled. Ga. L. 1905, p. 189, sec. 27 (act creating city court of Camilla); Williams v. State, 107 Ga. 693 (1) (33 S. E. 641); Griffith v. State, 3 Ga. App. 476 (1) (60 S. E. 277).

4. The court did not err in failing to charge the law of alibi. Hendrix v. State, 24 Ga. App. 56 (1) (100 S. E. 55).

5. The .other special grounds of the motion for a new trial are without merit.

6. The verdict was authorized by the evidence.

Judgment affirmed.

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

Accusation of possession of liquor; from city court of Camilla ■—Judge Burson. September 27, 1924.

Application for certiorari was denied by the Supreme Court.

Britt W. Davis, for plaintiff in error.

Charles Watt Jr., solicitor, contra.

Luke, J.,

dissenting. There was evidence tending to show that the home of the accused was searched by the arresting officers during his absence but in his wife’s presence, resulting in the discovery therein of a small quantity of “moonshine” whisky. The defendant stated to the jury that the whisky was his wife’s; that it was brought there for her by others during his absence; and that all he knew about it was what his wife had told him subsequent to the search. In his motion for a new trial the accused complains that the court instructed the jury “that the possession of intoxicating liquors by a wife in the house and about the premises is in law presumed to be that of the husband. However, this is not a conclusive presumption, but is one that may be rebutted or explained by the husband.” In my opinion this instruction was error requiring the grant of a new trial. Lumpkin v. Atlanta, 9 Ga. App. 470 (71 S. E. 755).


text:
    16077.
    Huff v. The State.
    Decided March 27, 1925.
    Indictment for manufacture of liquor; from Madison superior court—Judge Hodges. November 15, 1924.
    Application for certiorari was denied by the Supreme Court.
    The special grounds of the motion for a new trial were as follows:
    4. The court erred in allowing E. L. McCannon, a witness for the State, to testify: “Barnett was down in the gully with a shovel doing something, and Mr. Huff (the defendant) stepped down on the bank, and pointing down there and telling him to do something, but I could not tell what;” over the objection that the statement, “telling him to do something,” was a conclusion, as the witness testified that he did not hear what'was said.
    5. The court erred in refusing to declare a mistrial as requested by the defendant when the solicitor-general said in the presence of the jury, “I want to prove, if I can, a commission by him (the defendant) of a similar crime to the one involved in this indictment;” on the ground, then stated, that the remark was improper and prejudicial. The court disallowed the proof offered by the solicitor-general.
   Luke, J.

No reversible error is shown by the special grounds of the motion for a new trial, and there was sufficient evidence to authorize the verdict.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.

6. The court erred in refusing to declare a mistrial when requested by the defendant, upon the solicitor-general remarking to the defendant’s attorney, in the presence of the jury, “I don’t doubt but what you would like to shut me off;” the motion for a mistrial being then urged on the ground that the remark was improper and that this was the second offense of the solicitor-general. Immediately before overruling this motion the court said to the jury: “The solicitor-general made that remark and it was improper. The- jury are not to consider it and are not to become prejudiced by it.”

7. The court erred in allowing W. H. Hall, the sheriff of the county, to testify (over the objection that it was irrelevant) that he went to the defendant’s house two or three times that year (1924).

8. The court erred in not charging the jury on the theory of an attempt to manufacture liquor, the indictment charging both the offense of manufacturing and the offense of attempting to manufacture liquor, and there being evidence on which the jury might have found the defendant guilty of the latter offense.

9. Because the defendant was charged with the offense of manufacturing whisky on July 11, 1924, and had been previously indicted in the same court for the offense of manufacturing liquor on July 13, 1923, and one of the grand jurors, B. M. Strickland, who found the last-mentioned indictment was a trial juror in the instant case, and in this case the State introduced testimony charging the offense of manufacturing liquor on the date mentioned in the indictment in the instant case and also introduced evidence as to the manufacture of liquor, the possession of liquor, and the possession of distilling apparatus by the defendant for four years antedating the offense charged in the instant casé and in support of the indictment wherein E. M. Strickland was a grand juror. “There was no evidence . . on the trial of the instant ease that there was pending the indictment of July 13, 1923.” Neither the defendant nor any of his counsel knew until after the trial that B. M. Strickland was a grand juror as aforesaid.

Carlisle Coll, Lamar C. Bucher, for plaintiff in error.

A. 8. Shelton, solicitor-general, contra.