text:
    17450.
    PRINCE HALL MASONIC BUILDING ASSOCIATION v. HOWARD et al.

    1. “Where a disputed claim, dependent upon a legal question, is settled and adjudicated by the parties, and a contract between them is accordingly made whereby one promises to pay to the other a sum of money, the promisor is bound thereby, though such question be really free from doubt, and properly resolved would have absolved him from all liability.”
    2. The evidence adduced on the trial demanded a verdict for the plaintiff, and the court erred in overruling the motion for a new trial.
    Compromise and Settlement, 12 C. J. p. 331, n. 47, 48; p. 366, n. 56.
    Indemnity, 31 C. J. p. 422, n. 83, 84.
    New Trial, 29 Cyc. p. 820, n. 35.
    Decided December 14, 1926.

      Complaint; from city court of Atlanta — Judge Reid. May 8, 1936.
    Application for certiorari was denied by the Supreme Court.

      Anderson, Rountree & Crenshaw, Jerome Jones Jr., for plaintiff.

      Branch & Howard, Bond Almond, A. T. Walden, for defendants.
   Per Curiam.

The Prince Hall Masonic Building Association brought suit against David T. Howard and W. S. Cannon on a promissory note, a copy of which was attached to the petition. The defendants denied liability and pleaded that the note was executed by them without any consideration whatever. On the trial, after the evidence was introduced, the judge directed a verdict for the defendants. A motion for a new trial, based on the general grounds, was overruled, and the plaintiff excepted.

The facts as disclosed by the record are in substance as follows: The Prince Hall Masonic Building Association had $11,641.96 on deposit, subject to check, in the savings department of the Atlanta State Savings Bank. The drawing out of this amount at-one time and at the particular time in question would have proved detrimental and probably disastrous to the bank. To induce the plaintiff to leave the money in the bank J. O. Ross, W. S. Cannon, and David T. Howard, stockholders of the bank (and the latter two also directors of the bank), entered into a written agreement with the plaintiff on September 30, 1931, under which the plaintiff was to leave all of the said money in the said bank for a specified time, after which time it was to be drawn out in specified installments; and Ross, Cannon, and Howard, for considerations stated in the agreement, agreed to be personally liable, as original and independent obligors, to the plaintiff for the said money in the event the bank should break or should for any reason fail to pay the specified amounts at the times designated. The written agreement began as follows: “Georgia, Fulton County. This agreement made and entered into this 30th day of September, 1931, by and between Prince Hall Masonic «Building- Association, a corporation, party of the first part, and Atlanta State Savings Bank and the undersigned officers, directors, and stockholders thereof, parties of the second part, witnesseth:” The agreement was signed as follows: “Prince Hall Masonic Building Association, party of the first part, Thos. H. Slater, Pres. J. O. Ross, W. S. Cannon, David T. Howard, parties of the second part.” The agreement was not signed by the Atlanta State Savings Bank. Before the first payment under this contract became due the bank failed. After the failure the plaintiff, through its representative, approached the defendants for the purpose of collecting the amount which they guaranteed under this contract. The defendants contended that they “ought not to pay it, because we had no compensation out of it, no benefit.” This dispute extended over a period of several weeks, and finally, in consideration of an extension of time, a decrease in the rate of interest, and the settlement of the disputed claim, the defendants, on July 18, 1922, executed the note sued on.

Under the original contract a benefit flowed to the defendants because they were stockholders and directors in the bank and it was to their pecuniary interest for the bank to remain open and do business. And a detriment flowed to the plaintiff, because it had a perfect right to draw out all its money before the failure of the bank, and refrained from doing so because of the written promise of the defendants to indemnify it against loss, and, as a result of so refraining, the plaintiff lost all of its said money so far as payment by the bank was concerned. The defendants contend, however, that the failure of the bank to sign the written agreement made it void and unenforceable, and that the. note sued on was executed merely as a renewal of that contract, and not as a compromise of the plaintiff’s claim against them. Conceding, but not deciding, that the failure of the bank to sign the agreement rendered it unenforceable, the evidence upon, the trial fairly demanded a finding that the note sued on was not a mere renewal of the original contract, but that it was executed as a compromise and settlement of a bona fide dispute arising out of that contract. “Where a disputed claim, dependent upon a legal question, is settled and adjudicated by the parties, and a contract between them is accordingly made whereby one promises to pay to the other a sum of money, the promisor is bound thereby, though such question be really free from doubt, and properly resolved would have absolved him from' all liability.” City Electric Railway Co. v. Floyd County, 115 Ga. 655 (42 S. E. 45). See also Glenn v. Zenovitch, 128 Ga. 596 (3) (58 S. E. 26); Johnson v. Redwine, 98 Ga. 112 (1) (25 S. E. 924); Belt v. Lazenby, 126 Ga. 767 (2) (56 S. E. 81); Preston v. Ham, 156 Ga. 224 (1 b, d) (119 S. E. 658).

The evidence adduced on the trial demanded a verdict for the plaintiff, and the court erred in overruling its motion for a new trial.

Judgment reversed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., absent on account of illness.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    17455.
    JEFF DAVIS COUNTY v. ATLANTA NATIONAL BANK.
    The purchase of a tractor to be used on the roads of the county was a current expense of the county; the giving of the warrant in payment for the tractor 'was ample proof of the purchase, and the issues raised by the county as to the legality of the warrant for the purchase-price were, in view of the evidence, properly resolved in favor of the plaintiff.
    Appeal and Error, 4 O. J. p. 879, n. 84.
    Counties, 15 C. J. p. 545, u. 47 New; p. 598, n. 5; p. 599, n. 22; p. 668, n. 42 New.
    Decided December 14, 1926.
    Complaint; from Jeff Davis superior court — Judge Highsmith. April 12, 1926.

      J. C. Bennett, for plaintiff in error.

      A. S. Way, H. H. Elders, contra.
   Per Curiam.

In April, 1923, ft. H. Ballard sold a tractor to Jeff Davis county; P. A. Carter, county commissioner, gave him a county warrant therefor; and within two days after receipt of the warrant Ballard indorsed and assigned it to the Atlanta National Bank. Payment of the warrant was refused by the county, and the Atlanta National Bank brought suit thereon to the July term, 1923, of the court. The defendant in its answer alleged that it did not purchase the tractor, that it was to purchase the tractor if it proved satisfactory after a thirty days demonstration by Ballard, and that Ballard failed to demonstrate it for that length of time, and that such purchase, if made, was illegal. The judge, without the intervention of a jury, rendered a judgment in favor of the plaintiff, and the defendant excepted. Error is assigned on the grounds, that $200 should have been and was not credited for a burst block, that there was no evidence to authorize the interest embodied in the judgment, and that the purchase-price exceeded available funds of the county, or funds that could be legally raised during the year in which the contract for the tract'or was alleged to have been made.

The evidence showed that the credit of $200 was given to the county. Carter, the - commissioner, testified: “He (Ballard) wanted it (the warrant) before he went away, and he said he would take off $200 for the cylinder being bursted; then he deducted'sixty odd dollars for freight we had paid, and I think he gave Hilley $40.” Ballard testified: “Over $200 was deducted from the original amount he was to pay.” McLoon, referring to the burst block, said: “That was held back in the warrant.” The warrant provides for payment of 6% interest and was given by the duly authorized agent of the defendant county. There is ample evidence to show that after seeing the tractor demonstrated for ten days or two weeks, and after knowing of the alleged defects in it, the county commissioner gave a warrant for the tractor. The commissioner himself testified: “I gave him the warrant after seeing the trouble the man had.” The giving of the warrant in payment for the tractor was ample proof of the purchase of the same. Evidence was submitted to the court as to the financial status of the county, and the current expenses for the year in which the tractor was purchased. The trial judge having passed upon the case without the intervention of a jury, his findings on questions of fact, if supported by any evidence, can not be disturbed.

Hnder all the evidence in the case it is apparent that the county warrant was a legitimate demand against the county. “From the earliest times it has been the declared policy of this State that each year shall be a fiscal unit, and that current expenses should be met by a levy of taxes of the same year that the expenses were incurred. The system of taxation originally devised, and which still remains in force in this State, is that taxes shall be levied in the late summer or fall, and collected in the latter part of the year. At the time of the adoption of the constitution of 1877 the taxpayer was given until December 20, in which to pay the taxes assessed for that year; so that the revenue derivable from taxes was not available until near the close of the year. In the meantime it is necessary that the governing officers of the county should discharge the duties imposed by law of keeping up the bridges of the county, caring for paupers, keeping the public buildings in repair, providing for the expense of courts, and for other necessary current expenses of running the affairs of the county.” Butts County v. Jackson Banking Co., 129 Ga. 809 (60 S. E. 149, 15 L. R. A. (N S.) 567, 121 Am. St. Rep. 244). See, in this connection, Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136); Wright v. Southern Ry. Co., 146 Ga. 581 (2) (91 S. E. 681). The purchase of the tractor to be used on the roads of the county was a current expense of the county.

The issues raised by the defendant county as to the legality of the warrant were, in view of the evidence adduced on the trial and the authorities cited above, resolved in favor of the plaintiff bank.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Blood-worth, J., absent on account of illness.


text:
    17469.
    HARALSON v. MENDEL.
    1. It appearing that the defendant Lanier was indebted to the plaintiff, Mendel, doing business as Mendel & Company, when he (Lanier) sold the merchandise to the garnishee, Haralson, that the plaintiff had no notice of this sale before or at the time it was made; that the sale was made in bulk, that Haralson did not comply with the bulk-sales act as embodied in the Civil Code (1910), §§ 3226 et seq., and that the plaintiff’s claim was less than the value of the merchandise, the sale by Lanier to Haralson was fraudulent and void so far as the plaintiff was concerned; and Haralson was liable in garnishment in the sum claimed.
    2. The note taken by the plaintiff, through its representative, from the defendant Lanier, for the settlement of the account, merely changed the form of an already existing indebtedness; it contained no release of Haralson for his violation of the bulk-sales act, and the taking of it was not a waiver of the plaintiff’s right to proceed against Haralson for the amount due the plaintiff.
    3. The court did not err in ruling as to the admissibility of testimony.

      4. Under the counter-showing made as to the newly discovered evidence, the trial judge did not err in refusing to grant a new trial because of that evidence.
    Fraudulent Conveyances, 27. C. J. p. 878, n. 61; p. 885, n. 56; p. 889, n. 32.
    Decided December 14, 1926.
    Garnishment; from city court of LaGrange — Judge Tuggle. May 18, 1926.

      L. L. Meadors, for plaintiff in error.

      Lovejoy & Mayer, A. S. Grove, contra.
   Per Curiam.

H. Mendel, doing business as H. Mendel & Company, filed a suit on an open account against W. C. Lanier, doing business under the name of Lee Stein, agent. While this suit was pending, Mendel & Company garnished T. P. Haralson, who answered that he was not indebted to the defendant Lanier. This answer was traversed by the plaintiff, and the court directed a verdict in favor of the traverse. The garnishee filed' a motion for a new trial, which was overruled, and he excepted.

The record discloses that Lanier was indebted to Mendel & Company for merchandise in the sum of $2,456.10; that on April 11, 1925, while so indebted, Lanier sold this merchandise .to Haralson for $3,650, of which $3¿000 was paid in cash, the balance being covered by a short-time note, which was paid; that the merchandise was worth the price paid for it by Haralson; that Haralson testified : “I did not obtain from Mr. Lanier or any one else a statement of assets and liabilities, nor did I obtain a list of the creditors with their names and addresses, and I did not give any notice by registered mail to any creditor that I had bought that business:''’ that on May 25, 1925, Lanier gave to a representative of Mendel & Company a note payable to Mendel & Company for the amount due on his account; that Mendel & Company sued Lanier on the open account instead of on this note; that in November, 1925, Mendel & Company garnished Haralson, the garnishment and the suit on account being returnable to the December, 1925, term of court; that the plaintiff obtained a judgment at this term against Lanier; that at the same term the garnishee answered that he owed the defendant nothing; that this answer was traversed by the plaintiff, and that the court directed a verdict in favor of the traverse and against the garnishee on March 8, 1926.

It appearing that the defendant Lanier was indebted to the plaintiff, Mendel & Company, at the time that he (Lanier) sold the merchandise to Haralson, garnishee; that the plaintiff had no notice of this sale before or at the time it was made; that the sale was made in bulk; that Haralson did not comply with the bulk-sales act as embodied in the Civil Code (1910), §§ 3226 to 3229 inclusive; and that the claim of plaintiff was less than the value of the merchandise, the sale of the goods by Lanier to Haralson was fraudulent and void so far as the plaintiff was concerned; and Haralson was liable in garnishment to the plaintiff in the sum claimed, this being less than the value of the goods. Jacques & Tinsley Co. v. Carstarphen, 131 Ga. 1 (62 S. E. 82). See also National Cash Register Co. v. Stubbs, 29 Ga. App. 543 (116 S. E. 44).

The note taken by the plaintiff, through its representative, from the defendant Lanier for the settlement of the account, merely changed the form of an already existing indebtedness; it contained no release of Haralson for his violation of the bulk-sales act, and the taking of it was not a waiver of plaintiff’s right to proceed against Haralson for the amount due the plaintiff. See, in this connection, Morgan v. Weil Co., 31 Ga. App. 611 (121 S. E. 703).

The court did not err in ruling as to the admissibility of' testimony.

Under the counter-showing made relative to the newly discovered evidence, the trial judge did not err in refusing to grant a new trial on this ground. The motion for a new trial- was properly overruled, 'and the judgment so ruling is

Affirmed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J,, absent on account of illness.


text:
    17475.
    KENNINGTON v. SMALL.
    1. Because of the statute of frauds, tlie oral option from the owner to the plaintiff to buy the realty was voidable by the owner, but the owner’s recognition of that option, by carrying out the terms thereof, cured this defect. The contract on which the suit was based was in writing, was based on a valuable consideration, and, so far as it obligated the plaintiff, was performed; and the defendant, having received the benefit of this performance, is bound by the terms of the contract.
    2. The description of the property mentioned in the written contract, though carelessly made, is sufficiently definite to be the basis of a suit for damages for a breach of the contract.
    3. The court committed no reversible error, either in overruling the demurrers to the petition, or in overruling the motion for a new trial.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Frauds, Statute of, 27 C. J. p. 324, n. 18.
    Vendor and Purchaser, 39 Cye. p. 1223, n. 39; p. 1672, n. 92.

      Breach of contract; from Bibb superior court — Judge Malcolm D. Jones. April 30, 1926.
    Application for certiorari was denied by the Supreme Court.

      Hunter & Daly, Hall, Grice & Bloch, for plaintiff in error.

      Jones, Park & Johnston, contra.
   Per Curiam.

G. L. Small sued H. A. Kennington for the value of certain property, the claim arising by virtue of the following facts: John R. L. Smith, representing the creditors of A. T. (Gus) Small, had for sale certain property formerly belonging to Small, the said property to be sold for the benefit of the creditors. He placed the property in' question in the hands of Willingham Loan & Trust Company, real-estate agents, with instructions to get $40,000 for it. Willingham, agent, after making considerable effort to sell the property, reported to Smith that $25,000 was his best offer, this offer having been made by H. A. Kennington. Gus Small asked for the refusal of the property at this figure, and Smith instructed Willingham to give Small the refusal or preference on the property at $25,000, because of Small’s interest in the sale of the property. In compliance with these instructions Willingham, on December 24, 1923, gave Small an option until 4 o’clock of that afternoon to buy the property at the same figure that Kennington had offered. This preference, or refusal, or option, was oral. Small then went to Kennington, told him that his brother G. L. (George) Small had an option on the property until 4’ o’clock that day, that he wanted $25,000 for the place, and that if Kennington did not take the property, “we (the Smalls) are going to open up business here again, and that will give you competition.” Kennington agreed to buy the property, and he and Gus Small went to Willingham’s office before 4 o’clock of that day. Small told Willingham that Kennington had bought the property, and Kennington paid Willingham $100 to bind the trade. The price which Kennington agreed to pay Willingham was $25,000, and Kennington then executed and delivered to Small the following agreement to convey certain property to G. L. Small as consideration for Small’s option, the agreement being written “on a letter-head of Macon National Bank, Macon, Ga.:” “Dec. 24/23. I having bought of G. L. Small and having his option transferred to me of the store & warehouse & lot in East Macon known as the property where A. T. Small & Sons did their grocery business, we agree to give the said' Geo. L. Small a deed to our store in Bast Macon where we are now doing business, & also deed to him the shop in the rear of warehouse where Ed Lamar [changed by amendment tó Ed Lundy] is now located — the line to extend bade the width of shop. H. A. Kennington.” Gus Small, in procuring the option from Smith and Willingham, and in selling it to Kennington, was acting as duly authorized agent for his brother, George L. Small, and George L. Small had made arrangements to buy the property, having procured $10,000 and turned it over to Gus Small to be used in buying the property in question. Kennington later declined to take the property, and got back his earnest money from Willingham, but about a month later did buy the sarnie property from the same party and at the same figure. Kennington refused, however, to deed to George L. Small the property referred to in his written agreement with Small. As a result of this refusal George L. Small brought suit against him for the value of the property which he agreed to convey to George L. Small in consideration of the transfer of Small’s option. Both parties agreed that in the event the plaintiff recovered, the verdict should be for $4,500. The plaintiff did recover, the defendant Kennington’s motion for a new trial was overruled, and the movant excepted. Some of the above-stated facts are disputed by the defendant, but the record discloses that all are sustained by some evidence which was passed upon by the jury.

The defendant’s contention that George L. Small was not mentioned in the transaction is answered by the writing which the defendant signed, in which he stated that he had bought and had transferred to him the option of George L. Small, and agreed to convey to George L. Small certain property in consideration thereof. Briefly, but in substance, so far as the controlling issues' now for determination are concerned, the defendant contended that Small’s alleged option from Smith was not in writing; that it was therefore void under the statute of frauds; that, the option being void, Small had nothing to transfer to the defendant; and that therefore the defendant’s agreement to convey property in payment for Small’s option was without consideration and unenforceable.

True, the statute of frauds (Civil Code, § 3222) requires that “any contract for sale of lands, or any interest in, or concerning them” shall be in writing; but this section does not extend to cases “where there has been performance on one side, accepted by the other in accordance with the contract;” nor “where there has-been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.” Civil Code, § 3223 (2, 3). In the instant case the plaintiff had complied with his contract with the defendant, transferred his option to the defendant, and instructed the owner to sell to the defendant under the plaintiff’s option to buy. By virtue of this transfer a distinct benefit flowed to 'the defendant, viz., the procuring of the property at a low price, the elimination of competitive bidders for the property, and the elimination of competitors in the defendant’s business near which the property in question was located. 'And a distinct detriment flowed to the plaintiff, viz., the loss of the ppportunity to buy the property at a low figure; the loss of his preference or refusal on the property of which he was prepared to avail himself; and the loss of the opportunity' to engage in business in this particular place of advantage under the circumstances. Furthermore, the plaintiff did not have a mere privilege to buy in common with other bidders. He had a preference, or refusal, an exclusive privilege to buy, of which he was prepared to avail himself had he not sold this exclusive privilege to the defendant. Mr. Willingham, agent for the owner, testified: “I drew up a sales contract and took $100. Mr. Small stepped out at that time in favor of Mr. Kennington. The contract was drawn up with Mr. Kennington.” It will thus be seen that the owner, Smith, through his duly authorized agent, Willingham, recognized and ratified his option to Small by drawing up a sales contract with the party brought to him by Small before the expiration of Small’s option. “We do not think that the contract between the plaintiff and the defendant was void for want of consideration. It is true that the contract by the owner of the land to sell it to the plaintiff was unenforceable, because the statute of frauds requires contracts for the sale of land to be in writing, signéd by the party to be charged therewith. Civil Code (1910), § 3222. The vendor could have repudiated that contract; but inasmuch as he recognized its binding force” (and drew up the sales contract with the defendant and took earnest money to bind the trade), “the infirmity of the parol executory contract was cured.” Flagg v. Hitchcock, 143 Ga. 380 (2), 381 (85 S. E. 125). Furthermore, the defendant’s contention that there was no consideration is disproved also by the agreement which he signed and delivered to the plaintiff; that agreement-showing on its face that the consideration was his “having bought” and “transferred” the option of George L. Small, for which he agreed to give George L. Small a deed to certain property.

The case of Lyons v. Bass, 108 Ga. 573 (34 S. E. 721), relied on by the plaintiff in error, is differentiated by its facts from the ease now under consideration. In the Lyons case the suit was based on an oral contract. In the instant case the suit is based on a written contract signed by the defendant, the party charged. In the Lyons ease “Lyons parted with nothing save a bare privilege, not exclusive, but which he enjoyed in common with all other persons” who might wish to buy the property. In the instant ease the plaintiff had the exclusive right to purchase within a specified time, and was prepared to exercise this exclusive right had he not sold it to the defendant. While the Supreme Court held that the case of Mathews v. Starr, 68 Ga. 521, was not pertinent to the Lyons case, we think it is pertinent to the ease now under consideration. In the Mathews case “property of S. was levied on and advertised for sale. M. agreed that if S. would permit him to buy it at sheriff’s sale, and would not have the price run up on him, he would buy and would pay to S. the difference between the price paid at the sale and $1,000, which S. claimed to be a fair valuation. Eelying on this, S. made no effort to pay the fi. fa. or stop the sale, as he could otherwise have done. M. bought for $625. S. sued for the balance to complete the $1,000.” It was. held that the contract was founded on a sufficient consideration, and that “such a contract was not illegal.” In the instant case the defendant could not legally lull the plaintiff into a loss of his preference to buy, and then,' after the plaintiff’s option was gone, make a new trade with the owner to the exclusion of the plaintiff. The plaintiff’s option was a thing of value and a legitimate subject for profitable negotiations.

Because of the statute of frauds, the oral option from the owner to the plaintiff to buy the realty was voidable by the owner, but the owner’s recognition of that option, by carrying out its terms, cured this defect. The contract between the plaintiff and the defendant, which was the basis of the suit under consideration, was in writing, was based on a valuable consideration, and, so far as it obligated the plaintiff, was performed; and the defendant, having xeceived the benefit of this performance, is bound by the terms of the contract.

The description of the property mentioned in the written contract, though carelessly made, is sufficiently definite to be the basis of the suit for recovery of damages for a breach of the contract. King v. Brice, 145 Ga. 65 (88 S. E. 960); Bush v. Black, 142 Ga. 157 (82 S. E. 530).

The court committed no reversible error, either in overruling the general and special demurrers to the original and amended petition, or in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., absent on account of illness.


author: Luke, J.

text:
    17529.
    Adams v. Fleming.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Breach of contract; from Lamar superior court — Judge Persons. May 31, 1926.
    Application for certiorari was denied by the Supreme Court.

      Claude Christopher, for plaintiff in error. E. O. Dobbs, contra.
    Appeal and Error, 4 O. J. p. 852, n. 56; p. 905, n. 41.
   Luke, J.

1. The court did not err in overruling the demurrers to the petition as amended.

2. Under the facts of the case the failure to instruct the jury upon the law of the statute of limitations was not error.

3. The verdict was authorized by the evidence, and none of the grounds of .the motion for a new trial require another hearing of the ease.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Luke, J. Luke, J.

text:
    17530.
    Tench v. Swift & Company.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Complaint; from Habersham superior court — Judge J. B. Jones. March 11, 1926.

      J. C. & H. E. Edwards, for plaintiff in error.

      McMillan & Erwin, contra.
    Appeal and. Error, 3 O. J. p. 1391, n. 14; 4 O. J. p. 864, n. 34.
   Luke, J.

Tlie sole assignment of error in the motion for a new trial being upon the usual general grounds, and there being some evidence to support the verdict, which has the approval of the trial judge, it was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

ON MOTION EOR REHEARING.

Luke, J.

The plaintiff in error, in his motion for a rehearing, while admitting that the only assignment of error in his bill of exceptions was upon the overruling of his motion for a new trial (which was based upon the usual general grounds only), contends that that assignment “was sufficient to raise more than the mere question of whether the verdict was supported by the evidence; that it properly raised the question of whether or not the trial judge could, after having 'adjudicated’ that the verdict and judgment were wrong, arbitrarily have written off a sum satisfactory to him and then refuse a new trial;” and the plaintiff in error cites, as a controlling case, Seaboard Air-Line Railway v. Randolph, 129 Ga. 796 (59 S. E. 1110), where the Supreme Court held that the assignments of error in the bill of exceptions were sufficient to raise that question.

In that case the bill of exceptions recites that the trial judge “expressed his disapproval of the verdict, as being for a greater sum than ought to be approved by him under the evidence, and after the statement by the judge that he would not approve a verdict in favor of the defendant in error exceeding in- amount the sum of $6,500, the said counsel wrote off said excess from said verdict; and, after'the plaintiff had reduced and written off from the said verdict and judgment the excess over and above the sum of $6,500, the judge then and there overruled the motion for a new trial; to all of which said Seaboard Air-Line Railway excepted, and now excepts and assigns error thereupon (italics ours). Be it further remembered that said Seaboard Air-Line Railway, being dissatisfied with the reduction and writing off of said verdict and judgment and with the overruling of its motion for a new trial, and thereby affirming and permitting to stand the verdict and judgment rendered as aforesaid, and excepting thereto generally as herein set out, comes now and for more specific assignment of error says. . . Be it further remembered that said Seaboard Air-Line Railway, being dissatisfied and alleging error as hereinbefore set out (italics ours), hereby specifies the following parts of the record,” etc. It appears that in the bill of exceptions in that case an assignment of error is made not only upon the refusal to grant a new trial, but upon the ruling of the judge in requiring the plaintiff to write off from the verdict and judgment a certain fixed amount, while in the instant bill of exceptions the only assignment of error, as admitted by the plaintiff in error, “is based on the formal grounds of the original motion” for a new trial. The ruling in the Seaboard Air-Line Railway case will not be extended to cover the facts of this case. Moreover, that case was a suit against a railroad for a personal tort, and the Supreme Court in its decision quoted with approval the following ruling from Savannah, Florida & Western Railway v. Harper, 70 Ga. 120: Where general damages have been recovered for a personal tort, if they are so excessive as to lead the court to suspect bias or prejudice, he may grant a new trial; but the judge has no power to say that the verdict in such case should not exceed a specified sum, and to require the plaintiff to write off a portion of the damages, and thereupon refuse a new trial. Aliier, in actions on contract or for torts to property, the value of ivhich may be ascertained, and in relation to tuhich fixed rules for measuring damages are recognized (italics ours).’ ”

Motion for rehearing denied.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, C. J.

text:
    17536.
    Haddon v. Savannah Electric & Power Company.
    Street Railroads, 36 Cyc. p. 1527, n. 2; p. 1528, n. 6; p. 1573, n. 44.
   Broyles, C. J.

The petition, properly construed most strongly against the plaintiff’s cause, shows that by ordinary care he could have avoided the consequences of the alleged negligence of the defendant after such negligence became existent, and the court did not err in dismissing the case upon the general demurrer interposed. The case of Cowart v. Savannah Electric Co., 5 Ga. App. 664 (63 S. E. 804), relied on by counsel for the plaintiff in error, is distinguished by its particular facts from this case.

Decided December 14, 1926.

Action for damages; from city court of Savannah — Judge Freeman. May 17, 1926.

The action was for injuries from a collision of the plaintiff’s automobile-truck with a street-car at the intersection of streets. The petition alleges that in the city of Savannah in the daytime the plaintiff was driving a heavily loaded one-ton truck eastwardly along the right-hand side of the southern roadway of 37th street (an avenue'100 feet wide) at a speed of 12 miles an hour, approaching Barnard street and intending to cross it on his way eastward. Barnard street runs north and south across 37th street, is about 75 feet wide, and along it run double-tracks of the defendant’s electric street-railway. The plaintiff began to slow up his truck as he approached the intersection of these streets, and when within 50 feet of the western rail of the defendant’s track he looked north along Barnard street and observed a car of the defendant approaching from the north on the western track. The car was about 200 feet from him, coming at a moderate rate of speed and slowing up for the crossing at 37th street, as was usual, to allow vehicles and pedestrians on 37th street to pass in safety. As the car appeared to be about to stop at the crossing and seemed to be under perfect control, and no bell had been rung and no other notice not to cross had been given, “but on the contrary, the operator of the car, by checking its speed and not'ringing a gong, had invited a crossing,” the plaintiff, who had reduced the speed of his truck to four miles an hour and was in position to halt it immediately if necessary, looked south along Barnard street, and, seeing nothing approaching from that direction, started to cross Barnard street, and the street-car tracks. At that instant the plaintiff, who was then about eight feet from the western rail of the western track, looked again toward the car and saw, to his surprise, that the operator of the car, which was then approximately 80 feet from him, had negligently thrown on the current of electricity propelling the car and, without any warning to him, although his truck was in full view, aud, in disregard of his rights, was driving the car down upon him at the rate of 20 miles an hour, and that a collision was imminent; and, seeing that he would not have time to avoid the collision and in an effort to avoid it, he swung his truck around at right angles south into Barnard street, and had gotten into that street a distance of about ten feet south of the southern line of 37th street when his truck was struck by the defendant’s car (which had continued its course unchecked) with such force that the heavy truck, weighing with its load some 7,050 pounds; was thrown 30 feet to the western grass plot of Barnard street, the speed of the car at the moment of impact being such that it did not stop until it had run about 130 feet farther. Injuries from the collision are described, and specific allegations of negligence are made. A speed ordinance of the city was set out by amendment. The judge held the general demurrer “good in view of 16 Ga. App. 1, and 741, and 22 Ga. App. 676.”

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

George C. Heyward Jr., Charles D. Russell, for plaintiff,

cited: 5 Ga. App. 664; Id. 625; 13 Ga. App. 124, 128; Civil Code (1910), § 2780; 146 Ga. 297; 143 Ga. 93; 121 Ga. 443; 22 Ga. App. 676; 16 Ga. App. 741; Id. 1.

Lawrence & Abrahams, for defendant,

cited: 16 Ga. App. 1; Id. 741; 22 Ga. App. 676; Civil Code (1910), 4426; 87 Ga. 6; 129 Ga. 388; 121 Ga. 38; 30 Ga. App. 466 (4), 468; 35 Ga. App. 369; 208 N. W. 932.


text:
    17541.
    Louis K. Liggett Company v. Foster, trustee.
    Appeal and Error, 3 C. J. p. 483, n. 14; p. 518, n. 49; 4 O. J. p. 648, n. 32.
    Judgments, 34 O. J. p. 321, n. 81 New; p. 329, n. 55; p. 333, n. 59.
   Luke, J.

1. There is no assignment of error in the bill of exceptions upon the judgment sustaining the motion to set aside the verdict and judgment previously rendered. There is, however, an assignment. of error in the bill of exceptions upon the judgment denying a motion to dismiss the motion to set aside the verdict and judgment, the bill of exceptions reciting that the motion to dismiss the- motion to set aside the verdict and judgment was made “on the ground that defendant in error, the movant in the motion to set aside the verdict and' judgment, had failed to show by sufficient competent evidence that it had a meritorious claim to the property levied on, that no facts had been introduced before the court showing how the title of the claimant to the property was acquired, and that the motion to set aside the verdict and judgment should be dismissed on the ground of the insufficiency of the evidence. The court heard the motion and overruled same, to which plaintiff in error excepted and now excepts and assigns the same as error.” This motion was in the nature of a general demurrer; and if it had been sustained, this would have been a final determination of the ease, and hence the exception was to a final judgment. The exception was sufficient, as it clearly appears that the error alleged and excepted to was an error of law. See Scott v. Ward, 21 Ga. App. 535 (94 S. E. 863). The case of Douglas v. Brooke, 24 Ga. App. 515 (101 S. E. 313), cited by the defendant in error, is distinguished from this case by the fact that that case involved a motion to set aside a judgment only, and such a motion is not subject to the same rules of practice as a motion to set aside a verdict and judgment. The motion to dismiss the bill of exceptions is denied.

Decided December 14, 1926.

Motion to vacate judgment; from city court of Atlanta — Judge Reid. June 12, 1926.

Candler, Thomson & Kirsch, W. B. Cody, Thomas J. Long Jr., for plaintiff in error.

Charles G. Reynolds, L. H. Foster, contra.

2. On a motion to set aside a verdict and judgment the movant must show, among other things, that he has a meritorious case; and where he fails to establish this,-the motion should be denied or dismissed. Under this ruling and the facts of the instant case, the court erred in refusing to dismiss the motion to set aside the verdict and judgment, and the further proceedings in the case were nugatory.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17554.
    NORWICH UNION INDEMNITY COMPANY et al. v. JOHNSON.
    The award of compensation by the industrial commission in this case, for the death of an employee who was run over by a truck from which he fell when attempting to get on it in order to go to his work, was not authorized by the evidence, there being no evidence that would authorize a finding that the injury which caused his death arose out of and in the course of his employment.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Appeal; from Eulton superior court — Judge E. D. Thomas. June 3, 1926.
    Application for certiorari was denied by the Supreme Court.
    Workmen's Compensation Acts, C. J. p. 72, n. 69; p, 115, n. 37.

      Walter Moton was a laborer employed in road construction by the MaeDougald Construction Company, and lived with the cook at the company’s camp, about a half mile from where the work in which he was employed was going on. He left the camp in the morning, shortly before the time for starting to work, and attempted to board a moving truck which was going to his place of work, his foot slipped when he was trying to catch hold of the rail of the truck, and he fell and received injuries which caused his death. The truck was used by the construction company for hauling things needed in its work and was taking a load to the place of work when the deceased attempted to board it. Two men were riding on it besides the driver. The company’s superintendent, who had supervision.and-control of its trucks and workmen, testified that no arrangement for transportation of the men was made' when he hired them, but that there was no objection to their riding on the trucks on their way to work if the truck was not loaded and was not running at the time of catching it; that it was in the driver’s discretion whether he would let' them ride or not; it was customary for employees to catch a truck when they had a chance, but he had given specific instructions not to catch a running truck; that he “never fired one for doing it.” Compensation for the death was awarded by the industrial commission, and on appeal the award was affirmed by the judge of the superior court.

      R. L. Clement, Bryan & Middlebrooks, J. A. Dunaway, for plaintiff in error.

      J. C. Bowden, J. Wightman Bowden, contra.
   Luke, J.

The exceptions in this case are to the affirmance by the superior court of an award under the workmen’s compensation act. The sole question to be determined is whether or not the employee was injured at the time and in the course of employment. Under subsection d of subsection 8 of section 2 of the workmen’s compensation act, a personal injury to an employee means injury by an accident arising out of and in the course of employment. The record fails to show that at the time of- the injury in question the employee was actually engaged about the work of his employer, and the evidence fails to disclose that his injury was occasioned in the course of employment. There being no evidence which would authorize a finding that the injury arose out of and in the course of employment, upon the authority of Ga. Ry. & Power Co. v. Clore, 34 Ga. App. 409 (129 S. E. 799); see also Ga. Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881), the court erred in affirming the award of the industrial commission.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17557.
    Kersh v. Savannah Electric & Power Company.
    Decided December 14, 1926.
    Action for damages; from city court of Savannah — Judge Freeman. May 17, 1926.

      Oliver & Oliver, for plaintiff.

      Lawrence & Abrahams, for defendant.
    Pleading, 31 Oye. p. 618, n. 51.
   Broyles, C. J.

The petition, as finally amended and as in part deleted by special demurrers which were sustained (the judgment upon such demurrers not being excepted to), did not set out a cause of action; and as the last amendment to the petition did not conform to the previous ruling, not excepted to, stipulating that unless the petition, within a specified time, should be so amended as to meet specified rulings on the demurrers, the case would stand dismissed, the court did not err in striking the amendment and dismissing the ease.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17561.
    ROBINSON v. CLIFTON.
    The defendant having only an equity of redemption in the land levied on, • since the title had been conveyed to others as security for indebtedness' which was unpaid at the time of the levy, the land was not subject to levy under the attachment sued out against her as a fraudulent debtor.
    Attachment, 6 O. J. p. 203, n. 48.
    Decided December 14, 1926.
    Attachment; from DeKalb superior court — Judge Hutcheson. June 12, 1926.

      Thomas G. Lewis, Carl T. Hudgins, for plaintiff.

      Branch & Howard, Bond Almand, for defendant.
   Luke, J.

A fraudulent debtor’s attachment was levied upon certain real estate, and the defendant filed a petition for the purpose of removing the attachment, alleging that she did not own in fee simple the property levied on, bnt had only an equity of redemption in it. On hearing the evidence, from which it appeared that there were two outstanding security deeds to the property, one by a predecessor in title of the defendant and the other by the defendant, to secure a debt upon which there was a balance due, assumed by the defendant, the court ordered that the levy be dismissed. Upon the authority of Smith v. Fourth National Bank, 145 Ga. 741 (89 S. E. 762), and Bank of LaGrange v. Rutland, 27 Ga. App. 442 (3) (108 S. E. 821), and cases there cited, the court properly sustained' the motion to dismiss the levy. The rulings on the trial show no error.

Judgment affwmed.

Broyles, C. J., concurs. Bloodworth, J.; absent on account of illness.


text:
    17566.
    McDade v. Adams.
    Decided December 14, 1926.
    Complaint; from city court of Barnesville — Judge Persons presiding. May 22, 1926.

      B. h. Manry, for plaintiff in error. Claude Christopher, contra.
    Appeal and Error, 4 C. J. p. 852, n. 56; p. 905, n. 41.
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17574.
    Georgia-Kentucky Realty Co. v. Dodge.
    Decided December 14, 1926.
    Appeal and Error, 4 O. J. p. 851, n. 53; p. 852, n. 56.
   Luke, J.

The evidence authorized the verdict in favor of the plaintiff, and for none of the reasons pointed out in the record did the court err in overruling the motion for a new trial; nor is any error shown by the exceptions pendente lite.

The motion of the defendant in error for damages on account of bringing the case to this court for delay is denied.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

Complaint; from city court of Atlanta — Judge Reid. Jnne 12, 1926.

Application for certiorari was made to the Supreme Court.

W. II. Terrell, for plaintiff in error.

Tye, Peeples & Tye, John L. Tye Jr., contra.


text:
    17577, 17578.
    Pekor v. London & Provincial Marine & General Insurance Company Limited; and vice versa.

    Decided December 14, 1926.
    Complaint on fire policy; from Muscogee superior court — Judge McLaughlin. May’ll, 1926.

      McCutchen, Bowden & Gaggstatter, for plaintiff.

      Slade & Swift, Spalding, MacDougald & Silley, for defendant.
    Trial, 38 Cyc. p. 1557, n. 18 New.
   Broyles, C. J.

The court committed no error in its rulings upon the admissibility of evidence. The plaintiff failed to prove his case as laid, and a nonsuit was properly awarded.

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

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17592.
    Grace, alias Thomas, v. The State.
    Criminal Law, 16 C. J. p. 1105, n. 12.
    Intoxicating Liquors, 33 C. J. p. 591, n. 10, 15; p. 592, n. 21 New,
   Broyles, C. J.

1. Where A offers to sell to B a bottle of whisky for a certain sum of money, and B agrees to buy it, and A thereupon delivers the whisky to B, the sale is completed. This is true although B, after tasting the whisky, hands it back to A and refuses to pay the agreed price for it, offering to pay a part thereof, where A refuses this offer and contends that B owes him the price agreed upon, and leaves the scene of the sale, insisting that B must pay him the full purchase-price of the whisky, and returns in about 25 minutes and shoots a pistol at B. See, in this connection, Carter v. State, 26 Ga. App. 253 (3), 255 (105 S. E. 652); Grimes v. State, 32 Ga. App. 541 (1) (123 S. E. 918).

2. The accused was tried under an accusation containing two counts. T'he first count charged the possession of whisky, and the second count charged the sale of whisky. The jury returned a general verdict of guilty. This verdict meant that the accused was found guilty under both counts of the indictment. The evidence adduced demanded such a finding, and, therefore, the alleged errors of omission in the charge of the court are immaterial.

Decided December 14, 1926.

Possession and sale of liquor; from city court of Dublin — Judge Blount presiding. July 3, 1926.

W. A. Dampier, for plaintiff in error.

J. A. Merritt, solicitor, contra.

Judgment affirmed. Luhe, J., concurs.

Bloodworth, J., absent on account of illness.


text:
    17652.
    Everett et al. v. Wallace.
    Decided December 14, 1926.
    Lien foreclosure; from city court of Savannah — Judge Freeman. July 20, 1926.

      Anderson & Trapnell, Charles D. Russell, for plaintiffs.

      Robert L. Golding, Kirkland & Kirkland, for defendant.
    Trial, 38 Oye. p. 1555, n. 8.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, a nonsuit was properly awarded.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17655.
    ABBOTT et al. v. FREE et al.

    The action, being upon a contract to pay $600 in settlement of a prosecution for fornication and adultery and of other criminal prosecutions and of certain civil cases, could not properly be so amended as to allege that the sum mentioned was to be paid in consideration of wrongs and injuries sustained by the plaintiff because of the defendant’s illicit relations with her, and in consideration of her agreeing to maintain and support his child, “the outcome of said relations,” and not on account of the other matters mentioned in the contract. The court erred in allowing the amendment, and in not sustaining the demurrer to the petition as amended.
    Decided December 14, 1926.
    Complaint; from Forsyth superior court — Judge Woo'd. August 23, 1926.
    Contracts, 13 C. J. p. 452, n. 65; p. 455, n. 97 New, 98; p. 723, n. 95 New.
    Pleading, 31 Cyc. p. 421, n. 90.

      A. B. Tollison, B. P. Gaillard Jr., for plaintiffs in error.

      J. P. Brooke, contra.
   Luke, J.

J. W. Free, suing for the use of Amanda Free, brought suit in the superior court of Forsyth county against W. L. Abbott and J. K. Abbott, seeking a judgment for $600 and declaring his right to such judgment upon the following contract:

“Georgia, Forsyth county. — This agreement, made and entered into this 4th day of March, 1924, between J. W. Free and Amanda Free, of the State of Georgia, county of Forsyth, of the one part, and J. K. Abbott, W. L. Abbott, and Sam Abbott, all of the State of Georgia and county of Forsyth, of the other part, witnesseth, that whereas there is now pending divers controversies between the parties hereto, to wit, the State against Sam Abbott, an indictment charging 'fornication and adultery, by having had unlawful intercourse with one Amanda Free, the State against Walter L. Abbott, a warrant charging the said W. L. Abbott with having altered the docket of the justice of the peace of the 878 district, G. M., Forsyth county, the State against J. W. Free, a warrant charging perjury, also two civil cases, to wit, J. K. Abbott & Co. vs. J. W. Free, fi. fa. for the principal sum of $5.00, and one for the principal sum of $84.00 in favor of J. K. Abbott against J. W. Free, it is therefore mutually agreed between the said parties as follows, the permission of the court first having been obtained, that J. K. Abbott and Sam Abbott are to pay to J. W. Free and Amanda Free the sum of $600.00; that J. K. Abbott and J. K. Abbott & Company are to mark satisfied the said two named fi. fas. and release the defendant J. W. Free from any and all other and further liability upon the same; that the said indictment against Sam, Abbott be quashed, after the payment of costs; that prosecution of all of the other criminal cases as against the Abbotts and Free are to be stopped. And it is further agreed by and on. the part of J. W. Free that bond for the support and maintenance of the bastard child Madge is to be given by them as by law provided in such cases, and that Sam Abbott be and he is hereby released from further liability, both criminal and civil, relative to said matter.” The following amendment to the petition was allowed: “1. That said suit is proceeding for her (the plaintiff’s) use and in her name, for the reason that she is entitled to all the beneficiary interest therein, the wrongs and injuries and obligations contemplated in said contract were sustained and undertaken by this plaintiff. 2. This petitioner further shows that the sum sued for and the specific amount set out in said contract of the sum of $600 was to be paid this petitioner in consideration of the wrongs and injuries sustained by her because of the illicit relations of the said Sam Abbott with petitioner and in consideration of this petitioner undertaking to and agreeing to maintain and support the child of the said Sam Abbott, the outcome of said relations, and this petitioner shows to the court that the agreement to pay her the $600 was solely on account of these reasons and for these considerations, and not on account of settling any of the other matters mentioned in said contract.” This amendment, when offered, was objected to, on the grounds, (a) that “it shows on its face, when taken in connection with the original petition, that the contract sued on is an illegal and immoral contract and a contract that contravenes the principles of morality;” and (b) that “it contradicts and varies the specific consideration actually agreed on .¡and expressed in the contract sued on.” The defendants thereupon demurred to the petition as amended, upon the following grounds: “1. ■The petition'as amended fails to set out a cause of action against these defendants. 2. The petition as amended shows on its face that the contract sued on in this case is an illegal contract and that the same is violative of the principles of a sound public policy and is in contravention of both the law of the State and of sound morals.”

1. The amendment to the petition was improperly allowed.

2. The demurrer to the petition should have been sustained and the case dismissed.

3. These errors rendered the further proceedings in the case nugatory.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of'illness.


text:
    17656.
    Lee v. Weston, receiver.
    Decided December 14, 1926.
    Complaint; from Newton superior court — Judge Hutcheson. July 20, 1926.

      Robert Lee, for plaintiff in error. Reuben M. Tuck, contra.
    Appeal and Error, 4 O. J. p. 303, n. 3; p. 570, n. 91.
   Luke, J.

It appearing from the record in this case that the bill of exceptions has never been served upon the defendant in error as required by law, it neoessarily follows that this court is without jurisdiction and the writ of error must be dismissed.

Writ of error dismissed.

Broyles, C. J., concurs. Bloodworth, J., absent on accou/ni of illness.


text:
    17657.
    Newsome Lumber Company v. Ramsey Motor Company.
    Decided December 14, 1926.
    Claim; from city court of Springfield — Judge Shearhouse. August 9, 1926.

      W. L. Gignilliat, O’Neal & O’Neal, for plaintiff in error.

      G. T. Guyton, Y. E. Bargeron, contra.
    Ajipeal and Error, 4 O. J. p. 906, n. 49.
    Executions, 23 C. J. p. 589, n. 50; p. 596, n. 17; p. 597, n. 42; p. 602, n. 28.
    New Trial, 29 Cyc. p. 818, n. 30; p. 820, n. 35.
   Broyles, C. J.

This being an ordinary claim case, and the evidence demanding a finding that possession of the property levied on was not in the defendant in execution at the time of the levy, the burden was upon the plaintiff in execution to show either title in the defendant in execution or possession in the defendant since the date upon which the debt on which the execution was founded became a lien on the property. Knowles v. Jourdan, 61 Ga. 300 (1); Southern Mining Co. v. Brown, 107 Ga. 264 (2) (33 S. E. 73). The plaintiff in execution failed to carry this burden, and, therefore, the verdict in its favor was contrary to law and the evidence, and the refusal to grant the claimant’s motion for a new trial was error.

(a) The question whether or not the property was subject to the execution was the only triable issue in the case. No question'could legally be raised as to the liability of the claimant to pay the debt on which the execution was based. Southern Mining Co. v. Brown, supra; Liberty Lumber Co. v. Enecks, 23 Ga. App. 311 (1) (98 S. E. 97), and citations.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


author: Bkoyi.es, O. J.

text:
    17658.
    Harmon v. The State.
    Decided December 14, 1926.
    Keeping disorderly house; from city court of Richmond county —Judge Black. August 24, 1926.

      John H. King, B. B. McCowen, for plaintiff in error.

      W. Inman Curry, solicitor, contra.
    Appeal and Error, 4 C. J. p. 905, n. 41.
   Bkoyi.es, O. J.

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

Judgment affirmed.

Luke, J., eoneurs. Bloodworth, J., absent on account of illness.


text:
    17659.
    BREWER v. FAIR & MARTIN
    The letters and telegrams, between the plaintiff and the defendants as to the tomatoes in question constituted a. sale and purchase.
    The question whether the tomatoes were of the kind bought, merchantable or marketable, was for the jury; and the court erred in granting a nonsuit.
    Sales, 35 Oye. p. 83, n. 7; p. 86, n, 26; p. 234, n. 8.
    Decided December 14, 1926.
    Complaint; from Fulton superior court — Judge Humphries. July 25, 1926.

      J. Howell Green, Underwood & Haas, K. Smyth Gambrell, for plaintiff.

      George & John L. Westmoreland, for defendants.
   Luke, J.

Brewer sued Fair & Martin upon an open account. Fair & Martin, denied indebtedness. Brewer testified that he shipped to the defendant tomatoes for which he had not been paid, and that he had personal knowledge of the condition of the tomatoes, having handled them himself, and that they were of the grade and quality sold. It was further in évidence that the negotiations leading up to the sale of the tomatoes for which he sued was explained in a letter to him from Fair & Martin, dated March 19, 1917, as follows:

“If you have any potatoes, tomatoes, or other vegetables to offer in carload lots, please wire us prices on receipt of this letter, as we are brokers. You will include in your price our brokerage of 5 cents per package. All cars sold by us will be shipped by you direct to the purchaser, bill of lading attached to draft. Inspection allowed. Trusting to hear from you and that we may do some business together, we are,

“Very truly yours, Fair & Martin.”

He replied on March 23, 1917, in the following letter:

'“Gentlemen: Your letter received, and in reply will say that I have sold out this week’s shipment which rolls to-morrow at $7.50 per crate for fancy tomatoes. I will quote you for next week’s shipment, which will reach destination in time for Easter trade.

144 s Fancy tomatoes @ $10.00 per crate

120 s “ “ “ 9.50- “ “

180 s Choice “ “ 9.00 “ ' “

216 s Gems “ “ 8.00 “ “

Crooked tomatoes 4.00 “

“ Cars loaded as they come from 'bins, count, grade and pack guaranteed. Brokerage allowed. Orders subject to previous sales.

“Yours truly, Thos. Brewer.”

On March 27, 1917, Fair & Martin wrote him as'follows: “We wish to thank you for your favor of the 23rd quoting prices on tomatoes. Tomatoes are still a little too high for our trade to use. Keep us posted on your prices and as soon as there is a decline in the market, we hope to be able to do some business with you.” On April 18, 1917, Fair & Martin telegraphed him as follows: “Have you car tomatoes rolling unsold. Wire contents price including brokerage.” He replied by telegram as follows: “Southern car tomatoes going west rolled Saturday night hundred ninety, seven fancy two sixty five hundred eighty three choice two dollars forty seven seconds one fifty car going east rolled Friday want twenty five cents crate above these prices for that four more cars going this week.” He received by telegram from Fair & Martin on April 22, 1917, the following reply to his telegram and an order for the car of tomatoes sued for by telegraph, as follows: “Divert us car tomatoes shipped Saturday prices quoted confirm quick.”

Fair & Martin then wrote a letter to Brewer on April 23, 1917, as follows:

“This morning upon receipt of your night letter of the 22nd we wired you to divert us the car of tomatoes shipped Saturday at the prices quoted. We asked you to confirm. Trusting that you will divert the car to us and that this will lead to further business, we are, •

“Yours very truly,

“Fair & Martin, Inc.”

He telegraphed Fair & Martin as follows: “F. o. b. sale here confirm Southern twelve naught six three two passed Jacksonville today and diverted to you tomatoes packed to color in ten days inspect accordingly rolled car east today three two six fancy ninety seven choice twenty five seconds same price subject to prior sale.” He followed up this telegram by sending an invoice of the car of tomatoes. He proved that the car of tomatoes was received after having been diverted in Atlanta, and that Fair & Martin were notified and went down to the car, broke the seal and examined the tomatoes and refused them. The evidence also showed that Fair & Martin had resold the car of tomatoes to other parties.

After the conclusion of the testimony the court upon motion granted a nonsuit in the following order: “I think the meaning of these telegrams are an inquiry and proposition to sell, without a definite acceptance of the final proposition on the part of the seller. The telegram dated April 18 is an inquiry as to whether the plaintiff: had cars unsold in process of transportation. The answer to that telegram, dated April 22, describes cars unsold, and quotes a price, definite as to amount and definite as to quantity, but lacking as to freight or point of delivery. The answer to that telegram by the defendant, dated April 23, is a request to divert to the defendant one of the cars referred to at prices quoted, and asks for a confirmation of this request. This telegram is silent as to payment of freight also. The answer by the plaintiff to that -telegram is dated April 24, and offers for sale, f. o. b. Homestead, Florida, the car referred to, directs inspection, and asks for confirmation. The defendant never answered this telegram. In that situation there was not an unconditional acceptance of the offer of the plaintiff, and when this car reached the city of Atlanta, the defendant merely went, down and looked at it, he says, to determine whether he would accept it or not, and on looking at it he refused to accept it. I don’t think that the telegrams in question made a contract; neither do I think that the mere inspection of the tomatoes on request of the proposed seller would constitute an acceptance. In view of that opinion that I entertain of the evidence, I don’t think there could be a recovery. Therefore I will withdraw this case from the consideration of the jury and award a nonsuit, with judgment against the plaintiff for costs.” Upon the judgment of nonsuit error is assigned.

We do not agree with the learned judge in granting this motion for a nonsuit. We are of the opinion that the letters and telegrams were more than an unaccepted proposition ■ to sell and to buy. We think that there was a sale and a purchase. The issue as to whether the tomatoes were of the kind bought, merchantable or marketable, was for the jury. The case should have been, with proper instructions from the court, submitted to the jury.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17660.
    Collier Incorporated v. Buice.
    Decided December 14, 1926.
    Rehearing denied January 11, 1927.
    Landlord and Tenant, 36 O. J. p. 618, n. 15; p. 621, n. 61 New.
    Process, 32 Oye. p. 541, n, 84; p. 542, n. 90; p. 544, n. 11.
   Broyles, C. J.

1. “There is a malicious abuse of legal process where a party employs civil process wrongfully and unlawfully and for a purpose not intended by law, and for such abuse of civil process an action will lie.” King v. Yarbray, 136 Ga. 212 (71 S. E. 131); Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294, 296 (71 S. E. 421, 36 L. R. A. (N. S.) 1112).

2. In an action for malicious abuse of legal process it is not incumbent upon the plaintiff to allege that the action in which the process was issued has terminated in his favor. King v. Yarbray, supra.

3. A proceeding to evict one in possession of lands can not be maintained unless the relation of landlord and tenant exists between the parties. Edwards v. Blackshear, 24 Ga. App. 622 (101 S. E. 585), and eit.

4. Where the relation of landlord and cropper exists, the cropper can not be dispossessed under a summary warrant. Robson v. Cofield, 113 Ga. 1153 (39 S. E. 472).

5. Under the above-stated rulings and the facts of the instant case, the court did not err in overruling all the demurrers to the amended petition except the special demurrer (which was sustained) to that paragraph of the petition which set up as an item of damages the expense of hiring counsel.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

Action for damages; from Lamar superior court — Judge Persons. August 11, 1926.

Claude Christopher, for plaintiff in error.

H. J. Kennedy, contra.


text:
    17661.
    Franklin et al., executors, v. Colt Company.
    Decided December 14, 1926.
    Complaint; from Butts superior court — Judge Persons. August 7, 1926.

      C. L. Redman, for plaintiffs in error. Beck & Beck, contra.
    Appeal and Error, 4 C. J. p. 830, n, 41.
    Dismissal and Nonsuit, 18 C. J. p. 1209, n. 53, 55.
   Broyles, C. J.

Under the facts of the case it does not appear that the judge abused his discretion in reinstating it after it had been dismissed for want of prosecution at the same term of the court.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17662.
    Maryland Casualty Company et al. v. Turk.
    Decided December 14, 1926.
    Appeal; from Jefferson superior court — Judge Hardeman. August 16, 1926.

      W. J. Welsh, O. W. Russell, for plaintiff in error.

      Karl Norman, contra.
    Workmen’s Compensation Acts, C. J. p. 126, n. 75 New.
   Luke, J.

This court can not say in this ease that there is no evidence to support the finding of the industrial commission upon the issues presented; and the judgment of the superior court, approving the award, must be

Affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17663.
    LOGAN et al. v. GREER.
    Where at the time of execution of a security deed to land a windmill was attached to the land as a part of the realty,-and afterwards the maker of the deed, while in possession of the land, moved the windmill to land owned by his wife, and thereafter, under a.power of sale in the security deed, the maker having- failed to pay the secured debt when due, the land so conveyed was sold to pay the debt, the purchaser at the sale acquired title to the windmill, and trover for its recovery was maintainable against the maker of the security deed and his wife.
    Fixtures, 26 O. J. p. 726, n. 83; p. 734, n. 59, 60.
    Mortgages, 41 O. J. p. 996, n. 5; p. 997, n. 38. „
    Decided December 14, 1926.
    Trover; from city court of Americas — Judge Harper. September 2, 1926.

      Wallis & Fort, for plaintiffs in error.

      J. A. Hixon, Ellis, Webb & Ellis, contra.
   Luke, J.

A trover suit for a certain windmill was brought against J. R. Logan and his wife. The'testimony in the case discloses that Logan borrowed money from an insurance company, and secured the loan by a security deed to certain land, to which, at the time of the execution of the deed, the windmill was attached as a part of the realty; that subsequently, while Logan was in possession of the land, he detached the windmill and moved it over upon lands owned by his wife. He defaulted in payment of his notes, and under a power of sale in the security deecL the property was sold, and the bid was transferred to Greer, who brought this suit. The defendants pleaded that, the windmill having been moved prior to the sale of the land conveyed in the security deed and while Logan was in possession of the land, the title to the windmill and the right to sell the same was divested from the grantee in the security deed. To support this contention they relied upon the cases of Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (119 S. E. 223), Boswell v. Ivie, 31 Ga. App. 807 (122 S. E. 97), and Dobbs v. Bell Laundry, 25 Ga. App. 734 (105 S. E. 53). The verdict was in favor of Greer, for the money value of the windmill. A motion for a new trial was overruled, and the movants excepted.

íhe evidence amply authorized the verdict. The cases referred to above are by their particular facts distinguishable from the case under consideration. The grantor in the security deed and his wife were in possession of property the title to which lie had conveyed to Greer’s predecessor in title. Logan had the right of possession until the grantee in the security deed elected to sell and did sell the property conveyed in the security deed. When the property was sold under the security deed there was a union of title and right of possession in the purchaser, and, under all the facts of the case, it was not necessary that the grantee reconvey the property to the grantor.

None of the special grounds of the motion for a new trial are meritorious, and, the verdict being authorized by the evidence, the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17664.
    Loftin v. Southern Security Company.
    Decided December 14, 1926.
    Certiorari; from Fulton superior court — Judge Bell. October 16, 1925.

      R. R. Jackson, C. E. Moore, for plaintiff in error.

      Efurd & Phillips, C. B. Shelton, contra.
    Certiorari, 11 C. J. p. 138, n. 2 New; p. 193, n. 52.
    Courts, 15 C. J. p. 987, n. 61.
   Broyles, C. J.

1. Section 2 of the act approved July 31, 1925, amending the acts relating to the municipal court of the city of Atlanta (Ga. L. 1925, pp. 370, 386), provides that “before the writ of certiorari shall lie to any verdict, judgment, order, or ruling of the municipal court of Atlanta, a motion for a new trial must be made before the judge trying the case, and his judgment thereon must be reviewed by the appellate division of said court in the manner herein provided, and the writ of certiorari shall lie only to the final judgment of the appellate division of said court.” In the instant case the plaintiff in the certiorari proceedings failed to -comply with the above-stated provisions of the act, and the judge of the superior court properly refused to sanction the petition for certiorari.

2. The petitioner for the writ of certiorari attempted to raise in his bill of exceptions a question as to the constitutionality of section 2 of the act above referred to; but this can not be done. Such a question must be raised in the trial court. Loftin v. Southern Security Co., 162 Ga. 730 (134 S. E. 760).

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17665.
    PEAVY et al. v. PEAVY.
    1. “One riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.”
    2. The allegations of gross negligence in the petition were not supported by the facts stated therein, and the court erred in overruling the general demurrer to the petition.
    Decided December 14, 1926.
    Action for damages; from Pulton superior court — Judge Pomeroy. September 1, 1926.
    Eugenia Peavy’s petition as amended (the formal parts and the parts not necessary for a decision upon the demurrer interposed being omitted) was as follows: “1. The defendants in this action are O. D. Peavy, R. H. Peavy, and I. C. Edgerton, all of said county, and Edgerton Manufacturing Company, a corporation, doing business in and maintaining an office and place of business in said county. 2. Said defendants have damaged your petitioner in the sum of fifteen thousand dollars, for and on account of the facts herein stated. 3. On the 14th day of May, 1925, petitioner was invited to ride from her home, 24 North Yiew avenue, in said county, to the business section of Atlanta, by her brothers, C. D. Peavy and R. H. Peavy, in the Ford coupé automobile which belonged to R. H. Peavy. C. D. Peavy was instructed by R. H. Peavy to drive said automobile.' Accordingly, C. D. Peavy drove said automobile along Highland avenue toward the City of Atlanta, with R. H. Peavy riding beside him, directing him as the owner of said car, and assenting to the acts of C. D. Peavy in the course of his driving of said automobile. Your petitioner rode in said automobile as a passenger while it was being so driven. ' 4. When said automobile reached the intersection of Highland and Virginia avenues a violent collision took place between said automobile and another Ford coupé automobile which was driven by defendant I. C. Edgerton. Both of said automobiles were exceeding the speed limit allowed by law at said intersection, to wit, ten miles per hour, as they reached and began to traverse the said intersection. And the said exceeding of the speed limit by said automobile, driven and directed by defendants as aforesaid, was the direct and proximate cause of the collision which took place. 5. The said intersection is the intersection of two public highways, both Highland avenue and Virginia avenue being public highways in the city of Atlanta, Fulton county, Ga. 6. The law of the State of Georgia provided that while approaching and traversing such an intersection, all drivers of automobiles should drive their machines at a speed not greater than ten miles per hour; and this law was. being violated by both said drivers, C. D. Peavy and I. C. Edgerton, while approaching and while traversing said intersection. 7. Said C. D. Peavy was guilty of gross negligence in operating said automobile at the said unlawful speed, the said negligence tending to endanger human life, and particularly to endanger the life of petitioner. 8. Said I. C. Edgerton was also guilty of gross negligence in operating said automobile which he was driving at the said unlawful speed, and said negligence tending to endanger human life and particularly to endanger the life of petitioner. 9. The said acts of gross negligence on the part of the two drivers, C. D. Peavy and I. C. Edgerton, were jointly responsible for the collision which took place between said automobiles. 10. If C. D. Peavy had been driving at a slower and lawful speed, the automobile driven by I. C. Edgerton would have sped by in front of the Peavy car, in spite of the unlawful speed of I. C. Edgerton. 11. If I. C. Edgerton had been driving at a slower and lawful speed, the automobile driven by O. D. Peavy would have sped by in front of the Edgerton car, in spite of the unlawful speed of C. D. Peavy. 12. It was therefore the combination of the two unlawful acts of the two drivers I. C. Edgerton and C. D. Peavy which was the direct and proximate cause of the collision which took place. 13. Your petitioner was hurled out of -the ear driven by C. D. Peavy by the impact of said collision, and was pinned under the said car when it turned over on her, and as a result of said collision she suffered numerous wounds, bruises, and injuries, part of them temporary and part permanent, as follows: ’ [A detailed description of the plaintiff’s injuries is here given.] 17. Petitioner was free from all fault. 18. Said C. D. Peavy, upon seeing the said Edgerton automobile approaching said intersection, speeded up said automobile which said Peavy was driving, and attempted to beat said Edgerton across the said intersection, said act of Peavy being gross negligence toward petitioner and contributing to cause the said injuries to petitioner, said act of Peavy coinciding with his exceeding of the lawful speed limit as set forth in petition. Said intersection was a very busy and much traveled intersection, both streets being main highways, buildings were constructed at said intersection immediately beside the sidewalks,, many vehicles were in said vicinity; and in view of these conditions the said acts of C. D. Peavy constituted gross negligence toward petitioner.”

      Motor Yeliioles, 28 Oye. p. 37, n. 16; p. 45, n. 91,
    Negligence, 29 Cyc. p. 423, n. 37, 38.

      The defendants E. Ii. Peavy and C. D. Peavy interposed the following general demurrer: “ 1. Because the petition as amended sets forth no legal cause of action against the said defendants. 2. Because the facts set forth in the original petition and the amendment thereto do not set forth a legal cause of action against these defendants. 3. Because the facts set forth in the said declaration and the amendment thereto are insufficient to constitute allegations of gross negligence against these defendants.”

      McDaniel & Neely, Remberl Marshall, for plaintiffs in error.

      J. Walter LeCraw, Branch & Howard, contra.
   Luke, J.

(After stating the foregoing facts.)

“One riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.” Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. É. 256).

“ ‘ Gross neglect is the want of that care which every man of common sense, how inattentive soever he may be, takes of - his own property.’ Civil Code (1910), § 3473. While this and the preceding sections define the different degrees of diligence and negligence in terms of property, the rules thus qualified have been ‘recognized as extending with equal force to diligence to prevent injury to the person.’ Alabama Midland Ry. Co. v. Guilford, 119 Ga. 523, 525 (46 S. E. 655, 656); Civil Code (1910), § 3472. The distinction between gross negligence and the lack of ordinary care, while not applied in some jurisdictions, is well recognized in this State. Insurance Company of North America v. Leader, 121 Ga. 260, 272 (48 S. E. 972); Seaboard Air-Line Ry. v. Cauthen, 115 Ga. 422 (1), 423 (41 S. E. 653). ‘Gross negligence,’ as applicable to particular facts and circumstances, in those jurisdictions where it is recognized is alsp defined as ‘the want of slight care and diligence/ ‘such care as careless and inattentive persons would usually exercise under the circumstances/ ‘want of that diligence which even careless men are accustomed to exercise/ ‘carelessness manifestly materially greater than want of common prudence/ ‘the entire absence of care.' 2 Words & Phrases (2d Series), 787-789, 792. Many authorities regard gross negligence as the equivalent of wilful and wanton negligence, although in this State it is not so accounted, unless the evidence indicates ‘that entire absence of care which would raise the presumption of conscious indifference/ or that, with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct would be to inflict injury. So. Ry. Co. v. Davis, 132 Ga. 812, 815, 818 (65 S. E. 131); So. Ry. Co. v. O’Bryan, 119 Ga. 147 (45 S. E. 1000).” Harris v. Reid, supra, headnote 2. Conceding, but not deciding, that the State law, prohibiting the driving of automobiles at a greater rate of speed than ten miles an hour while approaching and traversing intersections of public highways, applies to intersections of streets in a city, the violation of this law would not constitute gross negligence. Southern Ry. Co. v. Davis, 132 Ga. 812, 817 (65 S. E. 131). The allegation in the petition that such violation amounted to gross negligence was a mere conclusion of the pleader. Further, we find no facts stated in the petition as to the acts and conduct of the defendants which evidenced “the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property,” or which evidenced “carelessness manifestly materially greater than want of common prudence,” or “the entire absence of care.” It follows that the court erred in overruling the general demurrer to the petition.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent, on account of illness.


text:
    17670.
    HEATH v. THE STATE.
    So much of the motor-vehicle act of 1921 as undertakes to make penal the failure of the operator of a motor-vehicle, when meeting a vehicle approaching'in the opposite direction, to “turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference” (Ga. L. 1921, p. 257, sec. 3), is too uncertain and indefinite in its terms to be capable of enforcement.
    Criminal Law, 16 C. J. p. 68, n. 8.
    Motor Vehicles, 28 Cyc. p. 49, n. 56.
    Decided December 14, 1926.
    Violating automobile law; from Laurens superior court — Judge Camp. September 4, 1926.

      Hightower & New, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Luke, J.

Heath'was indicted for violating the motor-vehicle act of 1921, sec. 3 (Park’s Ann. Code Supp. 1922, § 828 (ee)). The indictment alleged that the defendant failed to turn his automobile to the' right • while meeting one traveling in a wagon, so as to give one half of the traveled roadway to the driver of the wagon. The defendant demurred to the indictment, upon the ground that it did not set forth a crime, in that the statute which denounced the alleged acts as criminal is too uncertain, vague, and indefinite in its terms to be capable of penal enforcement. The demurrer was overruled, and upon the trial the defendant was convicted. He filed his motion for a new trial. In overruling the motion ‘for a new trial the trial judge rendered the following opinion: “The Court of Appeals has declared a similar statute under a former act unenforceable. Traffic conditions in Georgia, however, are so perilous, and the demand for definite legislation so imperative to cover such wilful and criminal conduct as the evidence authorized the jury to believe existed in this case, that the court is constrained, in the interest of the public welfare, to overrule and deny the motion for a new trial.”

The opinion here quoted referred to the case of Hale v. State, 21 Ga. App. 658 (94 S. E. 823). When the Hale case was here this court had under consideration so much of the act approved November 30, 1915 (Ga. L. Ex. Sess. 1915, p. 113), as regulated the use of automobiles upon the roadways. This defendant is indicted under an act of the General Assembly passed in 1921 (Ga. L. 1921, p. 257, sec. 3). This part of the act of 1921 is identical with the act of 1915. The legislature, if it 'had seen fit, could have remedied the objections to this particular part of the act. We are still of the opinion held in the Hale case, supra, and the cases therein cited; and therefore we now hold that the defendant could not be convicted upon the indictment lodged against him, and that the court erred in overruling his motion for a new trial. We sympathize with the sentiment of the trial judge in the interest of the welfare of the public, but we can not invade the province of the legislative department.

Judgment reversed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17671.
    Kinnebrew v. The State.
    Decided December 14, 1926.
    Possessing intoxicating liquor; from Cobb superior court — Judge Wood. September 11, 1926.

      Mozley & Gann, H. B. Moss, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1058, n. 32; p. 1059, n. 39; p. 1199, n. 56; 17 C. J. p. 252, n. 16.
   Broyles, C. J.

1. The evidence connecting the accused with the offense charged was not wholly circumstantial, and, therefore, the failure of the court to instruct the jury upon the law of circumstantial evidence was not error, no request for such a charge having been presented.

2. “There being no evidence as to an alibi of such strong and clear probative value as required instruction upon such a defense, the court did not err, in the absence of a timely and appropriate request, in failing to give such instruction.” Musgrove v. State, 29 Ga. App. 310 (3) (114 S. E. 925), and citation. Under this ruling and the facts of the instant case, the failure of the court to charge the law of alibi was not error.

3. The ground of the motion for a new trial based upon alleged newly discovered evidence was properly overruled. This evidence was cumulative and impeaching. Furthermore, the affidavits submitted in support of the ground were defective in several material respects.

4. The remaining grounds of the motion for a new trial show no harmful error, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17676.
    Nelson v. The State.
    Decided December 14, 1926.
    Possessing intoxicating liquor; from city court of Greenville— Judge Eevill. September 3, 1926.

      N. F. Culpepper, for plaintiff in error.

      J. F. Hatchett, solicitor, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C/J. p. 252, n. 16.
   Broyles, C. J.

The evidence authorized the verdict, and, under all the particular facts of the case, none of the grounds of the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17679.
    SASSENE v. CITY OF ATLANTA.
    Sanction of the certiorari was properly refused because of noncomplianee with the statutory requirements as to verification and bond or affidavit in forma pauperis.
    Criminal Law, 17 C. J. p. 98, n. 92; p. 100, n. 23.
    Decided December 14, 1926.
    Petition for certiorari; from Pulton superior court — Judge Pomeroy. September 4, 1926.

      A. S. Johnson, for plaintiff-in error.

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

Cora Sassene, having been convicted in the recorder’s court of the City of Atlanta for a violation of a city ordinance, presented to the judge of the superior court a petition for writ of certiorari. The judge properly refused to sanction the writ, for the reason that the petition did not comply with the statutory requirements of law in the matter of verification and giving bond or filing a pauper’s affidavit. We say that, in addition to the reasons given by the judge for not sanctioning the petition for certiorari, the petition did not set out a single meritorious reason why the conviction of petitioner in the recorder’s court should be set aside.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17689.
    HANEY v. THE STATE.
    The ground of the. motion for a new trial as to failure to charge the law of mutual combat is defective, in that it gives no reason why the failure so to charge was prejudicial to the accused, who was charged with murder and convicted of voluntary manslaughter.
    No cause for a new trial is shown.
    Criminal Law, 16 O. J. p. 1217, n. 44; p. 1221, n. 2, 4 New; 17 C. J. p. 88, n. 48 New.
    Decided December 14, 1926.
    Manslaughter; from Eloyd superior court — Judge Maddox. September 29, 1926.

      Porter & Mebane, for plaintiff in error.

      J. P. Kelly, solicitor-general, M. Neil Andrews, contra.
   Luke, J.

The defendant was charged with murder and was convicted of voluntary manslaughter. The trial judge charged the law generally on manslaughter, but did not charge the law of mutual combat. The ground of the motion for a new trial complaining of the failure to charge the law of mutual combat is defective, in that it does not give any reason why the failure so to charge was prejudicial to the accused. Indeed, the ground does not even allege that such failure was prejudicial. It is well settled that a special ground of a motion for a new trial must be complete and understandable within itself, to be considered by the reviewing court. The other special assignments of error, upon the rulings on the admissibility of testimony, do not require a reversal of the judgment of the court overruling the motion for a new trial. The defendant has had a fair trial, and for no reason pointed out in the record did the court err'in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17690.
    Kent v. The State.
    Criminal Law, 16 O. J. p. 765, n. 60; 17 C. J. p. 212, n. 18.
    Intoxicating Liquors, 33 C. J. p. 757, n. 71.
   Broyles, C. J.

1. The amendment to the motion for a new trial, not having been argued or referred to in the brief of counsel for the plaintiff in error, and the said brief containing no insistence upon all the grounds of the motion for a new trial, is treated as abandoned.

Decided December 14, 1926.

Possessing intoxicating liquor; from city court of Millen — Judge Woodrum. September 16, 1926.

J. A. Dixon, H. A. Boykin, for plaintiff in error.

E. G. Weathers, solicitor, contra.

2. The evidence connecting the accused with the offense charged was wholly circumstantial, but it amply authorized the jury to find that it excluded every reasonable hypothesis except that of his guilt.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17691.
    KENT v. THE STATE.
    A conviction of transporting intoxicating liquor was authorized.

      • Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided December 14, 1926.
    Transporting intoxicating liquor; from city court of Millen— Judge Woodrum. September 16, 1926.

      J. A. Dixon, H. A. Boykin, for plaintiff in error.

      E. G. Weathers, solicitor, contra.
   Luke, J.

Kent was convicted of violating the prohibition statute, and his case is here for review upon the single assignment of error that the evidence does not authorize the verdict (the other assignments of error having been abandoned). There being some evidence to authorize the defendant’s conviction, and that conviction having the approval of the trial judge, it was proper to overrule the motion for a new trial.

Judgment affw*med.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17692.
    Toney v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
   Broyles, C. J.

Under the ruling in Toney v. State, 35 Ga. App. 584 (134 S. E. 204), — a companion casé to the instant one and involving the same transaction, — that the evidence tending to connect the accused with the offense charged was wholly circumstantial and was insufficient to exclude every reasonable hypothesis save that of his guilt, the court in this case erred in overruling the petition for certiorari, the evidence in the two cases being substantially the same.

Decided December 14, 1926.

Certiorari; from Fulton superior court — Judge Howard. September 17, 1926.

C. G. Battle, for plaintiff in error.

Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.

Judgment reversed,.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17693.
    Jackson v. The State.
    Decided December 14, 1926.
    Possessing liquor; from city court of Floyd county — Judge Bale. October 4, 1926.
    Osie Jackson was convicted on the charge of having had possession and control of intoxicating liquor. From the evidence it appeared that the defendant was a widow residing in a two-story house which she had occupied for some years and in which her married daughter and the daughter’s husband and children were living, and had for a few months been living, .when officers found “corn liquor” on the premises. A negro man was standing at the front door of the house at night with money in his hand when one of the officers went to the door and into the front room and to the kitchen, which adjoined it, and into which a light shone from the front room, and on entering the kitchen saw the defendant’s daughter, who was alone,’throw against the wall some corn liquor from a half-gallon boiler. A funnel and some bottles were found in the kitchen, but on a search of the house no other liquor was found. The defendant was then arrested, and after she had been in jail two days the officers went back to the same house and dug into the dirt in a hog-pen on the premises and there found three pints of corn liquor. The house and the hog-pen were in the same enclosure. Other families lived in adjoining houses. A negro man who spent a part of the time in Alabama lived in the same house, but was not there when the liquor was found. The officers had been to the house several times before the discovery of this liquor. The defendant, in her statement at the trial, said that she did not know anything about the liquor, that if there was liquor on the premises it was not hers, that the hogs in the pen were not hers and she had nothing to do with the pen, and that she was making change for a neighbor when the officer came rushing in by her and went back into the kitchen.

      Criminal Law, 16 O. J. p. 764, n. 54.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Broyles, 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 her guilt, and the refusal to grant her a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

Porter & Mebane, for plaintiff in error,

cited: 30 Ga. App. 61; 32 Ga. App. 427; 28 Ga. App. 625; Id. 463; 29 Ga. App. 388; 33 Ga. App. 678; 34 Ga. App. 699; 25 Ga. App. 427; 24 Ga. App. 268; 23 Ga. App. 141; Id. 9; 29 Ga. App. 47; 28 Ga. App. 543; 24 Ga. App. 357.

Alec Harris, solicitor, contra.


text:
    17694.
    LAWHORN v. THE STATE.
    The evidence as to the homicide, for which the plaintiff in error and another were Jointly indicted, authorized the verdict finding the former guilty of assault with intent to murder.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Homicide, 30 C. J. p. 28, n. 85 New.
    Decided December 14, 1926.
    Assault with intent to murder; from Early superior court-judge Yeomans. October 4, 1926.

      W. I. Geer, for plaintiff in error.

      B. T. Gastellow, solicitor-general, R. R. Arnold, E. C. Hill, contra.
   Luke, J.

Robert Lawhorn and John Lawhorn were jointly indicted for the offense of murder. - They severed. John Lawhorn was convicted of the offense of assault with intent to murder. Upon the grounds of his motion for a new trial one of his contentions is that he should not -have been convicted, because the deceased had already received a mortal blow before he struck him with a piece of scantling, and therefore his conviction was for striking, as he terms it, the dead man. There were other assignments of error in his motion for a new trial. The jury were authorized to convict the defendant, and none of the grounds of his motion for a new trial show harmful error. Indeed the testimony shows that the defendant was still living at the time this defendant struck him twice, once in the mouth and once on the face, and did live some little time afterwards. This defendant will not be heard to say that the lick which the deceased had received from the hand of his brother was sufficient to kill him, and that his striking of the deceased was not a criminal act. Qne of the witnesses testified that this defendant stated that it was his purpose and intent to kill, and he would have inflicted other blows upon the struggling deceased if he had not been prevented by bystanders. The defendant has had a legal trial, and the court properly denied him a new trial.

Judgment affirmed.

Broyles. C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17695.
    LAWHORN v. THE STATE.
    The charge of the court on manslaughter and the verdict of voluntary manslaughter were authorized by the evidence.
    Homicide, 30 O. J. p. 317, n. 69; p. 410, n. 47.
    Decided December 14, 1926.
    Manslaughter; from Early superior court — Judge Yeomans. October 4, 1936.
    W. I. Geer, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold, E. C. Hill, contra.
   Luke, J.

Robert Lawhorn was indicted for murder and was convicted of voluntary manslaughter. The evidence amply authorized the verdict, and the verdict has the approval of the trial judge. The special ground df the motion for a new trial, which complains of an excerpt from the charge of the court upon the law of manslaughter, in view-of the evidence in this case, is wholly without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17696.
    Thomas v. The State.
    Decided December 14, 1926.
    Making liquor; from Wilkes superior court — Judge Perryman. October 4, 1926.

      Norman & Norman, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 765, n. 60; p. 1180, n. 74.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the evidence, while wholly circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke, J., conows. Bloodworth, J., absent on account of illness.