text:
    15674.
    STANFIELD v. SEABOARD AIR-LINE RAILWAY CO.
    1. Granting that the first special ground of the motion for a new trial is in proper form for consideration by this court, it was not error to reject the evidence referred to therein.
    2. A ground of the motion for a new trial shows that the plaintiff was asked: “When you went back to work, what was,said about giving you continuous work and seniority?” And that his answer was: “It was understood that I was to get a permanent job.” Even if it was error to refuse to allow this answer in evidence, this, under the ruling in Southern Ry. Co. v. Ward, 131 Ga. 21 (4) (61 S. E. 913), would not require the grant of a new trial, for the record shows that substantially the same evidence went to the jury from the lips of this same witness. He testifies: “I went down to see Mr. Bagwell at the Union Station, and he promised me a permanent job and protection if I went to work . . . Mr. Bagwell promised me full protection.”
    3. Eor no reason assigned did the court err in allowing in evidence the strike-settlement agreement referred to in the 3d special ground of the motion for a new trial.
    4. When considered in the light of the entire charge and the facts of the case the excerpt complained of contains no error requiring the grant' of a new trial.
    5. The verdict returned was authorized by the evidence, and this court can not override it when no error of law appears and it has the approval of the judge who tried the case.
    Decided November 12, 1924.
    Action for damages; from city court of Savannah—Judge Freeman. May 12, 1924.

      David 8. Atkinson, for plaintiff.

      Anderson, Gann & Gann, for defendant.
   Bloodworth, J.

In order that the foregoing headnotes may be understood it is necessary only to add the following statement of facts: Plaintiff alleged in part that he was in the employ of the defendant railway company; that a strike existed in the shops in Savannah; that he was induced to return to work pending the strike, “being promised a continuous job and that he would be fully protected;” that he did return to work on August 31; that on September 18 the strike was over; that on September 21 the defendant discharged all the guards that it had put on duty to protect those strikers who had returned to work; that on September 22 while he was at work at the railway company’s shops in the scope of his employment and under promise of protection by the company and its officers, he was assaulted by returned strikers, beaten, and run off from the shops, and that “he suffered great mental and physical pain and anguish.” He alleged that the defendant was negligent in failing to prote'ct him as it had agreed to do, and prayed for damages. The case was submitted to a jury, and a verdict in favor of the defendant was returned.

Judgment affirmed.

Broyles, G. J„ and Luhe, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15676.
    City of Albany v. Jackson.
   Luke, J.

1. Where two causes of action are set forth in a petition containing only one count, the petition is subject to a timely special demurrer for its duplicity. Gainesville & Dahlonega Ry. Co. v. Austin, 122 Ga. 823 (50 S. E. 883); Orr v. Cooledge, 117 Ga. 195 (3) (43 S. E. 527).

(a) In this ease the petition sets out two causes of action in a single count—one based on the law of nuisance, in that -it is alleged that the city is negligently maintaining a negligently constructed intake pipe connecting the lot of the petitioner with its storm-sewer, thereby causing large quantities of water, in times of rains, to flow and pond upon the petitioner’s property (Gabbett v. Atlanta, 137 Ga. 180, 73 S. E. 372, and cases cited; Maguire v. Cartersville, 70 Ga. 84; City of Atlanta v. Warnock, 91 Ga. 210, 18 S. E. 135, 23 L. R. A. 301, 44 Am. St. Rep. 17; Lewis v. Moultrie, 27 Ga. App. 757, 110 S. E. 625), the other count pleading the liability of the city, under the provision of the constitution (Civil Code of 1910, § 6388) that “private property shall not be taken, or damaged, for public .purposes, without just and adequate compensation being first paid,” in that the city so constructed its streets and sidewalks as to cause water to flow down to and upon the petitioner’s lot, independently of its. sewer system. See Sheppard v. Ga. Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868), and cases cited.

(b) There is no allegation in the petition that the alleged nuisance was either permanent or abatable. See City Council of Augusta v. Lombard, 101 Ga. 724 (28 S. E. 994).

'(c) In case of injury from a nuisance which iS' permanent, the one so injured is entitled to compensation for all damages, both past and prospective.

■ (d) Where .the nuisance is not of a permanent character, but may be abated at any time, and upon its abatement no further injitry will flow, an'notion will lie for the recovery only of such damages as may have been actually sustained. wi thin the period prescribed by the statute, of limitations. Langley v. Augusta, 118 Ga. 590 (9) (45. S. E. 486, 98 Am. St. Rep. 133).

Decided November 12, 1924.

Action for damages; from city court of Albany—Judge Clayton Jones. April 26, 1924.

James Tift Mann, for plaintiff in error.

Westbrook & Lanier, contra.

2. The measure of damages for 'an injury occasioned by a nuisance is the difference between the market value of the premises before the nuisance existed and the value after the nuisance was created. Head v. Towaliga Falls Power Co., 27 Ga. App. 143 (107 S. E. 558); Central Ga. Power Co. v. Stubbs, 141 Ga. 185 (80 S. E. 636).

3. The ante-litem demand for damages given to the city was sufficiently full. See Langley v. Augusta, 118 Ga. 590 (12) (45 S. E. 486, 98 Am. St. Rep. 133).

4. The petition in this case was not subject to general demurrer, but was subject to" the special demurrer based on the ground that the petition was duplicitous; it was therefore error to overrule the special demurrer, and for this reason the judgment is reversed.

Judgment reversed,.

Broyles, G. J., and Bloodworih, J., concur.


author: Bloodworti-i, J.

text:
    15740.
    COMMERCIAL CREDIT COMPANY v. GRANT, sheriff.
    In the absence of proof of execution, the court did not err in refusing to admit in evidence the conditional contract of sale with the attached note and entries of transfers.
    Decided November 12, 1924.
    Money rule; from Habersham superior court—Judge J. B. Jones. April 28, 1924.

      J. 0. & II. E. Edwards, Ryan S. Moore, for plaintiff.

      Robert McMillan, for defendant.
   Bloodworti-i, J.

A Ford car was sold by the sheriff under a judgment rendered in condemnation proceedings. The Commercial Credit Company, by petition for a rule against the sheriff, claimed the proceeds of the sale, “by reason of the conditional contract of sale which defendant holds as transferee.” The bill of exceptions recites that “when said case was called for trial both parties announced ready for trial and agreed for the court to try the case without a jury. The movant, Commercial Credit Company, through and’by its attorney, tendered in evidence a certain contract, note attached thereto, together with certain entries of transfer on the backs of said papers, which contract retained the title to a certain automobile, the sale of which was the basis of the said rule, which documents were objected to by respondent’s attorney on the grounds that they were not attested by or probated by a notary public and recorded, and that the execution of said contract, note and transfers had not been proved, and the court sustained the objections and refused to admit the said documents in evidence, and, there being no other or further evidence offered, passed an order deciding said issue in favor of the respondent?”

There ivas no error in the ruling of the court. Plaintiff’s case was based upon the note and contract and the transfer thereof. These writings Avere not merely incidentally involved, but Avere necessary to make out the plaintiff’s ease. There were subscribing witnesses to the contract, and these were not called. Indeed, no effort whatever was made to prove the execution of any of the papers offered by the plaintiff, and they were not admissible in evidence without proof of their execution as required by law. Civil Code (1910), § 5833; Barron v. Walker, 80 Ga. 121 (2), 123 (2) (7 S. E. 272); Baker v. Massengale, 83 Ga. 137 (1), 142 (1) (10 S. E. 347); Thornton v. Martin, 116 Ga. 115 (5) (42 S. E. 348); Equitable Mfg. Co. v. Davis, 130 Ga. 71 (3) (60 S. E. 262).

Judgment affirmed.

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


text:
    15742.
    Owens v. The State.
    Decided November 12, 1924.
    Indictment for seduction; from Wilcox superior court—Judge Crum. May 31, 1924.
    The two extracts from the charge of the court, referred to in the decision, were as follows: “If there be a virtuous engagement to marry, the mere ‘proposal by the defendant of sexual intercourse accompanied by a repetition of the promise to marry, if the female yield her consent to the intercourse by reason of persuasion accompanied by a promise to marry, then the jury should convict the defendant of seduction.” “If at the time of the alleged seduction the female in question had never had unlawful intercourse with a man, she was a virtuous female within the meaning of the law in this State.”
   Luke, J.

The evidence authorized the verdict finding the defendant guilty of seduction.

The charge of the court Avas full and fair. The two excerpts from the charge of the court complained of in the special grounds of the motion are not erroneous.

Eor no reason pointed out in the record or presented by the argument did the court err in overruling the motion for a new trial.

Judgment affirmed.

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

H. A. Hodges, J. H. Dorsey, for plaintiff in error.

J. B. Wall, solicitor-general, Hal Lawson, contra.


author: Bioodwortii, J.

text:
    15745.
    GRAVITT et al. v. THE STATE.
    There being no proof of venue of tbe alleged larceny of an automobile, the verdict of guilty was unauthorized, and the court erred in overruling the motion for a new trial, in which exception was taken on this ground.
    Decided November 12, 1924.
    Larceny of automobile; from Eulton superior court—Judge Howard. June 7, 1924.

      H. A. Allen, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A- Stephens, Ralph H. Pharr, contra.
   Bioodwortii, J.

The defendant and others were indicted for violating the first section of the act approved August 19, 1918, relating to unlawful dealing in motor vehicles. Ga. L. 1918, p. 264; Park’s Ann. Code, vol. 11, § 528 (e). One of the grounds of the motion for a new trial alleges that “a new trial should be granted for the reason that there was no evidence adduced upon the trial of their case establishing the venue of the offence.” This ground is weE taken. Granting (but not conceding) that the evidence supports the allegation of the indictment that the defendants “did knowingly have and did buy and receive and conceal and have in their possession one Eord touring automobile of the value of three hundred and fifty dollars and the property of B. E. Ozburn, from which the motor number had been, removed and altered for the purpose of concealing and misrepresenting and making difficult the identification of said automobile and identity of same,” there is no evidence to show that the alleged crime was committed in Eulton County, Ga.

The venue is a jurisdictional fact, and, like eve'ry other material allegation iii the indictment, must be proved beyond a reasonable doubt. Jones v. State, 113 Ga. 27 (38 S. E. 851); Smith v. State, 118 Ga. 83 (1) (44 S. E. 827); Mack v. State, 102 Ga. 571 (27 S. E. 678). “The venue of the alleged crime not having been shown, the verdict of guilty must be set aside as contrary to law and without evidence to support it.”

As a new trial must result from the foregoing ruling it is unnecessary to pass upon the other allegations of error.

Judgment reversed,.

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


author: Broyles, O. J.

text:
    15746.
    Cason v. The State.
    Decided November 12, 1924.
    Conviction of larceny of cow; from Charlton superior court-judge Summerall. June 2, 1924.

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

      A. B. Spence, solicitor-general, contra.
   Broyles, O. J.

The evidence authorized the verdict, and the charge of the court was not subject to the criticisms urged against it. The overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    15747.
    Leverett v. Risk.
    Decided November 12, 1924.
    Complaint; from city court of Oglethorpe—Judge Greer. May 26, 1924.

      J. J. Bull & Son, for plaintiff in error.

      Jute Felton, Jule IT. Felton, contra.
   Luke, J.

The evidence authorized the verdict, which has the approval of the trial judge. The two special grounds of the motion for a new trial assigning error upon excerpts from the charge of the court, in view of the note of the trial judge in approving the grounds of the motion, are without merit. Dor no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affivrmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Bloodworth, J.

text:
    15751.
    JACKSON v. LUMBERMAN’S MUTUAL CASUALTY CO.
    There is evidence to support the finding of the industrial commission, and “upon a review of an award made by the industrial commission under the provisions of the Georgia workmen’s compensation act, the commission’s findings of fact are, in the absence of fraud, conclusive, provided there is any evidence to support the award. Ga. L. 1920,-p. 199. With respect to the sufficiency of the evidence to support it, such an award stands in this court upon the same footing as the verdict of a jury approved by the trial judge in other cases.” London Guarantee & Accident Go. v. Shockley, 31 Ga. App. 762 (122 S. E. 99).
    Decided November 12, 1924.
    Appeal; from Monroe superior court—Judge Persons. May 24, 1924.

      Dobbs & Barrelt, for plaintiff.
    Underwood, Pomeroy & Haas, for defendant.
   Bloodworth, J.

Plaintiff in error filed a claim with the industrial commission of Georgia, asserting the right to recover compensation on account of the death of his son, who died from injuries received at a planing mill where he was employed as a yardman on the night shift. The case was originally heard by one of the commissioners, who rendered a decision in favor of the plaintiff in error. An appeal to the full commission was taken, and upon this hearing the judgment awarding damages was reversed and compensation denied. A part of the finding of the commission is a§ follows: “It appears from the record in this ease that Albert Jackson was not on duty at the time of this accident, but had gone to the place of business of his employer several hours prior to the time the night shift began work. He was due to go to work at six o’clock, and just what time he arrived at the mill is problematical, but it was agreed by all parties at interest that the accident occurred at four o’clock. It would, therefore, appear that Albert Jackson arrived at least two hours prior to the time when he should have begun work on the night shift. There was some evidence to. the effect that these night employees sometimes went to the mill early and were given extra work. In this particular ease, however, it is not the belief of the industrial commission that here was constituted a condition which would bring Jackson under the workmen’s compensation act. The industrial commission is thoroughly committed to the principle that a reasonable time must ensue after an employee reaches an employer’s premises prior to the- time work should begin, and a reasonable time- after work ends before leaving his employer's premises, during which time an accident occurring shall be construed as arising out of and in the course of the employment. It is not necessary here, however, to decide what constitutes a reasonable time. The industrial commission holds that two hours is not a reasonable time, and therefore the accident which caused the death of Albert Jackson did not arise out of and in the course of the employment.” From this finding of the commission an appeal was taken to the superior court of Monroe county. That court sustained the judgment of the full commission, and the case is now before this court for review.

No specific question of law was raised in the appeal to the superior court. The commission passed upon the controlling questions of fact in the case; their finding is supported by ample evidence and was approved b}r the superior court, and this court will not interfere. Ga. Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881); American Mutual Liability Ins. Co. v. Adams, 32 Ga. App. 759 (124 S. E. 801).

Judgment affirmed.

Broyles, C. J., and Lithe, J., concur.


author: Broyles, C. J.

text:
    15752.
    COTTLE v. MILLER.
    The evidence introduced in support of the plea of payment, although not entirely clear as to the amount, time, or place of the payments, or as to whether they were made on the note sued upon, was sufficient to require that the issue as to payment he submitted to the jury; and the court erred in directing a verdict for the plaintiff.
    Decided November 12, 1924.
    Complaint; from city court of Tifton—Judge J. H. Price. May 8, 1924.

      B. D. Smith, for plaintiff in error.

      Fulwood & Ilargrelt, contra.
   Broyles, C. J.

This was a suit upon a promissory note, and the defendant pleaded payment. After the introduction of evidence by the defendant, the court, on motion of the plaintiff, directed a verdict in favor of the plaintiff for the full amount sued for, and the defendant excepted. Counsel for both parties agree that the sole question in tire case is whether the evidence offered by the defend ant in support of his plea was sufficient to raise an issue of fact. While the evidence was not altogether clear as to the amount of the payments made, or as to whether they were made on the note sued upon, or when or where made, these questions were for the jury to determine, and the court erred in directing the verdict. “It is the fact of payment, and not the time or place of the payment, that is the essential fact to be proved.” Fletcher v. Young, 10 Ga. App. 183 (3), 189 (3) (73 S. E. 38, 40); Hawes v. Smith, 16 Ga. App. 458 (2) (85 S. E. 616).

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15756.
    Gibbs v. Security-Mutual Paint & Varnish Company.
    Decided November 12, 1924.
    Rehearing denied December 9, 1924.
    Motion to set aside judgment; from city court of Tifton—Judge J. H. Price. June 7, 1924.

      B. A. Hendricks, for plaintiff in error.

      B. D. Smith, contra.
   Broyles, O. J.

Under all of the facts of the case, it does not affirmatively appear that the judge abused his discretion in denying the motion to set aside the verdict and judgment.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15757.
    Gibbs v. Smith.
    Decided November 12, 1924.
    Rehearing denied December 24, 1924.
    Description of case and counsel the same as in the next preceding case.
   Broyles, O. J.

Under all of the facts of the case, it does not affirmatively appear that the judge abused his discretion in denying the motion to set aside the verdict and judgment.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bloodwortji, J.

text:
    15754.
    Gibbs v. Rogers. Gibbs v. Touchstone.
    15755.
    Decided November 12, 1924.
    Motion to set aside judgment; from city court of Tifton—Judge J. Ii. Price. June 7, 1924.

      B. A. Hendricks, for plaintiff in error.

      Rogers & Rogers, contra.
   Bloodwortji, J.

These are companion eases to those of Gibbs v. Security-Mutual Paint & Varnish Co., and Gibbs v. Smith, ante, 37, in which are involved the same questions. The decisions in those cases are controlling in these.

Judgment affirmed.

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


text:
    15758.
    McKENZIE, executor, v. FOY & SHEMWELL et al.

    Where a petition substantially alleges that a partnership, the builder and owner of a line of wires, permitted an electric company to use the wires in the regular course of its business in transmitting electricity for pay to its regular customers, and that the wires, because of their improper construction and maintenance, 'which was known to both parties, came in contact, and one of them, charged with a deadly current of electricity, burned apart and fell across a public highway, and caused the death of two mules carefully driven along the highway, held:

    1. The petition sets out a cause of action against both the partnership and the electric company, and the court erred in sustaining the general demurrer of each of them.
    2. Eairly construed, the petition alleges that the death of the mules was brought about by the concurrent negligence of both defendants,—that of the partnership in improperly constructing and maintaining the line of wires, and that of the electric company in sending through the wires a deadly current of electricity, with knowledge of such improper construction and maintenance; there was no misjoinder of parties defendant; and the court erred in sustaining the electric company’s de- . murrer for misjoinder of defendants. Eeidl v. So. Telephone cSo. Go., 122 Ga. 474 (50 S. E. 361); Einmg v. Ga. By. & Elec. Go., 133 Ga. 458 (66 S. E. 237). See also, in this connection, Lewis v. Bowling Green Gaslight Co., 135 Ky. 611 (117'S. E. 278, 22 L. R. A. (N. S.), 1169.
    3. The court erred in sustaining grounds 4, 5, 6, 8, 9, 10, and 11 of the special demurrer of the Georgia-Alabama Power Company. Ground 7 of this demurrer should have been met by an amendment showing “how and in what manner” the line was not “in good repair.”
    Decided November 12, 1924.

      Action for damages; from city court of Albany—E. 1’. Johnston, judge pro liac vice. May 13, 1924.

      G. F. Barrett, for plaintiff.

      Lippiti & Burt, Milner & Farlcas, for defendants.
   Luke, J.

E. Y. McKenzie, executor of the estate of J. W. Wooten, as plaintiff, sued Eoy & Sliemwell, a partnership, and Georgia-Alabama Power Company, a corporation, for damages of the killing of two mules. The defendants interposed separate demurrers, both special and general, to the petition. The court sustained the general demurrer of Eoy & Shemwell, and each and every ground of the demurrer of the power company, and we are called upon to say whether or not it erred in so doing.

The petition as amended ivas substantially as follows: Foy & Shemwell operated, controlled, and possessed a line of wires approximately three miles long, strung over, above, and along the side of the public highway and at a distance of two feet or more from the public highway leading from Albany to Dawson; said line of wires extending from the Furr place, located on said highway, about two miles from Albany, to the Fouché place on said highway, approximately Uve miles from Albany. Foy & Shemwell secured the right of way for the said line of wires, and constructed the line, or had it constructed, at their expense, so that electricity might be conveyed to the said Fouché place, which was owned by them in fee simple. “Foy & Shemwell, since the construction of said line of wares in the early part of 1922, have never relinquished that control and possession of said property,” and have continuously operated the same for the purpose of conveying an electric current to said Fouché place. At the time of the injury complained of, the said line of wares “wras used and employed by the power company, by and with the consent of, and at the invitation and request of, Foy & Shemwell,” for the purpose of transmitting electric current to said Fouché place and “points intermediate thereto.-” Said power company used said wires, “operated, controlled, and possessed by Foy & Shemwell,” to transmit, in the ordinary course of its business and for pecuniary gain accruing to it from the sale of said current,- an electric current to persons living near said highway. On December 5, 1923, one of said wires, heavily charged with electricity, fell “upon and across” said highway at a point approximately one hundred yards beyond the Furr place, in the direction of Dawson. On said daté, while one Smith, the agent and employee of J. W. Wooten, was proceeding “quietly, lawfully, and carefully” along said highway in the direction of Dawson, driving two mules, suddenly, and without warning, said mules, the property of the estate of J. W. Wooten, came in contact with said fallen wire lying across said highway and charged with a deadly current of electricity, and said mules were instantly killed by said current. Said mules came to their death as a result of the negligence of defendants. Foy & Shemwell, “as owners, operators, controllers, and possessors of said line of wires,” were negligent in failing to exercise ordinary care, in the following particulars: (a) in not inspecting said line of wires regularly, so that all defects likely to cause said wires to fall could be detected and remedied; (6) in failing to inspect said line of wires in a careful and efficient manner, so that all defects that would cause said wires to fall across the highway could be detected and remedied; (c) in that said wires were not maintained in good repair, but were neglected and became unsafe, and were at any time likely to fall on the highway; (d) in stringing said wires in such a loose and slack manner that, being blown by the gentlest wind, they would touch and burn apart, and fall on said highway; (e) in stringing and maintaining said wires so close together that they touched and burned apart and fell across the highway; (/) in not insulating said wires so that they would not be dangerous when they fell; and (g) in continuing to allow the transmission of electricity through said wires after they knew, or should have known by the exercise of ordinary care, that said line of wires was in an unsafe condition. The Georgia-Alabama Power Companj', “as user and operator of said line of wires,” was negligent, in that it failed to exercise ordinary care in the following particulars: (a) in sending over'said wires a powerful electric current without inspecting the wires, to ascertain whether it could be safely-so sent; (&) in sending over said wires a powerful current of electricity, when, by the exercise of ordinary care, it should have known that said wires were defective and unsafe, and likely to fall across highway at any time; (c) in sending said current over said wires, when, by the exercise of ordinary diligence, it should have known that said wires were not in a condition of good repair; (d) in sending over said wires said current, when it knew, or, by the exercise of ordinary care should have known, that they had not been inspected since their construction in the early part of 1922; (e) in sending over said line of wires said current without knowing that said line was in a safe condition; (/) in not using improved mechanical devices which would register and give notice of any breaks in the wires; and (g) in failing to repair said broken wire “in a reasonable time after it should have known said wire had broken and fallen” upon said road. By amendment it was further alleged that Foy & Shemwell were negligent: (i) in consenting to the transmission of said current over said line of wires, when they knew, or should have known, that said wires had not been inspected by any one since early in 1922; (/) in continuing to allow, and consenting to, the transmission of- said current over said line after they knew, or should have known by the exercise of ordinary diligence, that said wires sagged three inches below the level at which they were originally strung, “thus enabling them to be blown together by atmospheric disturbances, although it is a well-known fact that such wires, upon coming in contact each with the other, will burn apart, and Foy & Shemwell are well aware of this;” (7c) in consenting to the use of said wires for the purpose of transmitting said current after they knew, or should have known by the exercise of ordinary care, “that said wires had become so weak and worn by the ravages of time and the elements” that they were likely to fall at any time upon the highway. The Georgia-Alabama Power Company, “as user and operator of said line of wires,” was, by amendment, alleged to be further negligent: (h) in sending over said line of wires a powerful current of electricity, when it knew, or should have known by the exercise of ordinary diligence, that said wires had become “so weak and worn by the ravages of time and the elements that said wires were likely at any time to fall upon said highway;” (i) in sending over said wires said current Avithout taking measures of any kind to ascertain whether or not it could be safely so transmitted; (/) in sending said current over said wires when it kneAV, or should have known, from its experience in the business of transmitting current, and in the course of a year from the date of the construction of said wires, that they would need repairs, and Avhen it knew, or should have knoAvn by the exercise of ordinary diligence, that no repairs had been made for more than a year; (Z) in sending over said line of wires said current when it knew, or should have knoAvn by the exercise of ordinary diligence, “that said wires had sagged three inches below the original level from which they were.strung, so that there was a likelihood of contact between said wires, which contact would cause said wires to burn apart and fall.”

The court erred, as pointed out in the headnotes, in sustaining the general and special demurrers.

Judgment reversed.

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


text:
      15760.

    Summerville v. The State.
    Decided November 12, 1924.
    Indictment for making liquor; from Haralson superior court— Judge Irwin. June 3, 1934.

      Smith & Watson, for plaintiff in error.

      B. S. Griffith, solicitor-general, contra.
   Broyles, O. J.

The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial requires a reversal of the judgment overruling the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15761.
    Towns v. The State.
    Decided November 12, 1924.
    Indictment for assault with intent to murder; conviction of shooting at another; from Tattnall superior court—Judge Sheppard. June 11, 1934.

      G. L. Oowart, for plaintiff in error.

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

The evidence authorized the defendant’s conviction. The special grounds of the motion for a new trial are without merit.

Judgment affirmed.

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


author: Biioyles, 0. J.

text:
    15762.
    Deen v. Bishop.
   Biioyles, 0. J.

1. The court did not err in overruling the demurrer to the original petition, or in denying the motion to dismiss the petition as amended.

2. The refusal to direct a verdict is never error.

Decided November 12, 1924.

Complaint; from city court of Atlanta—Judge Reid- June 7, 1924.

Application for certiorari was made to the Supreme Court.

Underwood, Pomeroy & Haas, for plaintiff in error.

Etheridge, Sams S Etheridge, contra.

3. Wlien considered in the light of the entire charge of the court and the facts of the case, the excerpts complained of show no material error.

4. The remaining special grounds of the motion for a new trial complain of rulings upon the admissibility of evidence. Some of these grounds are not complete and understandable within themselves, and the others show no cause for a reversal of the judgment below.

5. Under the facts of the case, the contention that the plaintiff could not maintain the suit in his own name is without merit. The eases cited by the plaintiff in error to sustain this contention are distinguished by their particular facts from this ease.

6. The jury were authorized to And from the evidence that the written contract of sale, submitted by the proposed buyer, was signed and accepted, with some alterations, by the owner of the property, and that these alterations were subsequently orally agreed to by the. buyer in the presence of the owner and immediately after the contract was signed, and that the minds of the parties met and assented to the same thing in the same sense. See, in this connection, Fraser v. Jarrett, 153 Ga. 441 (2) (112 S. E. 487).

7. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a now trial.

Judgment affirmed.

Luloe and Bloodworth, JJ., concur.


text:
    15763.
    McGee v. Hardacre.
    Decided November 12, 1924.
    Action for damages; from Bibb superior court—Judge Mathews. April 23, 1924.

      H. D. Bussell, Miller & Garrett, for plaintiff.

      Byals & Anderson, for defendant.
   Luke, J.

When this ease was here before (27 Ga. App. 106) the judgment sustaining a general demurrer was reversed because of the amendment referred to in the fourth division of the opinion. Upon the trial of the case the evidence for the plaintiff did not prove the case as laid in the petition as amended. The court therefore properly granted a nonsuit.

Judgment affirmed.

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


text:
    15765.
    Southeastern Express Company v. Chambers.
    Decided November 12, 1924.
    Damages; from city court of Hall county—Judge Sloan. May 31, 1924.

      H. V. Johnson, Scolt, Kemper & Hornbuchle, for plaintiff in error.

      Johnson & Adderholdt, contra.
   Broyles, O. J.

1. In a suit for damage to an automobile, where proof was submitted as to the nature and extent of the damage and the sum paid out for repairs, the verdict in favor of the plaintiff was not without evidence to support it, merely because the witness omitted to say that he thought the amount paid out for repairing the car was the reasonable cost thereof. Georgia Railway & Electric Co. v. Tompkins, 138 Ga. 598 (8) (75 S.E. 664).

(a) While proof of what was paid to an automobile mechanic for repairing a car is not a criterion of the value of such services, yet the evidence is admissible as a circumstance to ascertain that value (Southern Railway Co. v. Williams, 113 Ga. 335 (1), 38 S. E. 744), and where there is no evidence tending to show that the sum paid for repairs was not a reasonable one, a verdict for the plaintiff is not, as to that feature of the case, without evidence to support it.

2. Under the general instructions of the court as to the measure of damages, if'more specific instructions upon that subject were desired by the plaintiff in error they should have been duly requested. Southern Railway Co. v. O’Bryan, 119 Ga. 148 (4) (45 S. E. 1000). Furthermore, if the court’s charge upon the measure of damages was erroneous in any respect, it was cured by the reasonableness in amount of the verdict returned. Boswell v. Barnhart, 96 Ga. 521 (3) (23 S. E. 414).

3. The contention that the court erred in not giving in charge to the jury certain provisions of the city code of Gainesville is without merit, since it does not appear that such code provisions were introduced in evidence.

4. The remaining special grounds of the motion for a new trial show no cause for a reversal of the judgment below.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15766.
    Stewart v. Mayor and Council of the City of Gainesville.
   Luke, J.

1. The evidence authorized the verdict.

2. The special grounds of the motion for a new trial which assign error on the rulings upon the admissibility of evidence are without merit. Similar evidence was allowed to go to the jury without objection.

Decided November 12, 1924.

Complaint; from Hall superior court—Judge J. B. Jones. June 7, 1924.

E. D. Kenyon, for plaintiff.

Dean & Wright, for defendant.

3. The charge of the court was- full, fair, and not subject to the objections raised in the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloockoorth, J., concur.


text:
    16768.
    Tindol v. Dublin & Laurens Bank.
    Decided November 12, 1924.
    Complaint; from Laurens superior court—Judge Kent. May 31, 1924.

      Fred Kea, for plaintiff in error.

      J. 8. Adams, contra.
   Broyles, C. J.

Under the facts of the case the court did not err in directing a verdict in favor of the plaintiff for the full amount sued for, or in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    15769.
    Wynn v. Maddox, sheriff, for use, etc.
    Decided November 12, 1924.
    Action on. bond; from city court of Dublin—Judge Sturgis. May 26, 1924.

      W. A. Dampler, for plaintiff in error.
   Luke, J.

Upon the authority of Rowe Brothers Motor Express Co. v. Twiggs County, 28 Ga. App. 211 (110 S. E. 925), the court did not err in granting a first new trial.

Judgment affirmed.

Broyles, C. J., and Bloodioorth, J., concur.


text:
    15770.
    HEBBARD v. THE STATE.
    This court will not say, as a matter of law, that the verdict in this case, finding the accused guilty upon the charge of possessing and controlling intoxicating liquor, is without evidence to support it.
    Decided November 12, 1924.
    Possessing intoxicating liquor; from city court of Washington— Judge Sutton. June 9, 1924.

      The accusation charges that the accused did “havé, possess and control spirituous, vinous, malted, fermented, intoxicating and prohibited liquors and beverages.” On the trial the sheriff swore in part: “They drove right on up to us without a sign of a light. I stepped out in the road and stopped them. Mr. Moore was driving and Mr. Hebbard was sitting on the front seat with him. They had several bottles of whisky and half-gallon jug. Some of the bottles were between Mr. Moore and Mr. Hebbard, and some of them were on the outside of Hebbard, on his right, next to the side of the ear, and the half-gallon jug was on the outside, next to the side of the car, on Mr. Hebbard’s side, and was held in position by his body. Nearly all the bottles were stacked around Mr. Heb-bard with the jug, so as to hold them and keep them from breaking. Mr. Hebbard said the whisky belonged to Mr. Moore, and Mr. Moore claimed it.” The deputy sheriff testified as follows: “1 was with the sheriff when we arrested Mr. Hebbard and Mr. Moore out near the country club, and he has told it just like it was. Both the men were on the front seat of the car, and the bottles and the jug were held in position by their bodies, and most of the bottles and the jug were held in position by Mr. Hebbard’s body.” The defendant made no statement. The only witness introduced by him said: “This was my car and my whisky that the sheriff found that night. Mr. Hebbard had nothing to do with it. He asked me to take him home that night, and I was going with him. He knew nothing about the whisky until I put it in the car. He did not own or possess any of it. I told this to the sheriff that night. I put the whisky on the front seat with us to keep it from breaking. It was not Mr. Hebbard’s whisky. He did not have anything to [do] with it.” The motion for a new trial, which contained the general grounds only, was overruled, and the defendant excepted.

      H. B. Combs, Colley & Colley, for plaintiff in error.

      Charles H. Calhoun, solicitor, contra.-
   Bloodworth, J.

(After stating the foregoing facts.) “The decision of every issue of fact is exclusively for the jury.” Davis v. Kirkland, 1 Ga. App. 5 (1) (58 S. E. 209). “No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. Strickland v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230).” Unity Cotton Mills v. Hasty, 19 Ga. App. 590 (2) (91 S. E. 916).

“There are no accessories in misdemeanors. All who procure, counsel, command, aid, or abet the commission of a misdemeanor are regarded by the law as principal offenders, and may be indicted as such. The indictment may be joint against all those connected with the criminal enterprise, or it may be several against any one of them. Whether the indictment is joint or several, any particular defendant accused therein of having committed the misdemeanor may be convicted by proof either that he directly and personally enacted the criminal transaction, or that he procured, counseled, commanded, aided, or abetted the criminal transaction of another, who was the direct and immediate actor.” Loeb v. State, 6 Ga. App. 23 (1, 1 a) (64 S. E. 338).

Applying the foregoing rulings to the evidence in this case, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    15774.
    Autry, House & Company v. Smith.
    Decided November 12, 1924.
   Broyles, C. J.

“There can be no legal verdict in favor of the plaintiff in execution in a claim case unless there is introduced in evidence at the trial a valid, unsatisfied execution in favor of the plaintiff in execution against the defendant in execution.” Collins v. Hill, 115 Ga. 465 (1) (41 S. E. 678).

(a) In the instant case, while the bill o.f exceptions specifies the execution as a part of the record material to a clear understanding of the errors complained of, and while the execution is copied in the rqcoi'd transmitted to this court, it does not appear that it was actually introduced in evidence; or that it was referred to in connection with any other documentary evidence in the case. Therefore, under the ruling in .the Collins ease, supra, the verdict in favor of the plaintiff in execution was unauthorized, and the court erred in overruling the motion for a new trial. See also, in this connection, Blackstock v. Blackman, 152 Ga. 179 (2) (108 S. E. 775).

Judgment reversed.

Luke mid Blood/worth, JJ., concur.

Levy and claim; from Barrow superior court—Judge Bussell. May 17, 1924.

G. A. Johns, J. C. Pratt, for plaintiff in error.

W. IJ. Quarterman, contra.


author: Beovles, O. J.

text:
    15776.
    Snell v. The State.
    Decided November 12, 1924.
    Accusation of possession of liquor; from city court of Wrights-ville—Judge Brinson. June 7, 1924.

      B. B. Blount, for plaintiff in error.

      C. 8. Glaxion, solicitor, contra.
   Beovles, O. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15778.
    Walton v. The State.
    Decided November 12, 1924.
    Conviction of adultery, etc.; from city court of Macon—Judge Jordan. June 20, 1924.

      D. W. McCoy, for plaintiff in error.

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

1. The special ground of the motion for a new trial is as follows: “Because the court erred in not delivering his charge immediately with the clerk of said court, immediately after he had read it to the jury, instead of waiting until the 17th day of June, 1924.” A new trial should not- be granted on this ground of the motion, because it is incomplete, in that it is not made to appear therein that counsel requested the judge, before the argument was begun, to write out his charge as required by section 1056 of the Penal Code of 1910. Ashley-Price Lumber Co. v. Henry, 23 Ga. App. 93 (1) (98 S. E. 185); Jones v. State, 65 Ga. 507 (8).

2. The defendant was convicted of adultery and fornication. There is direct evidence that she was unmarried and the other party was married j and while the evidence as to the corpus delicti is circumstantial, it is sufficient to “exclude every reasonable hypothesis save that of the guilt of the accused.”

Judgment affirmed.

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


text:
    15777.
    Sherwood v. The State.
    Decided November 12, 1924.
    Conviction of adultery, etc.; from city court of Macon—Judge Jordan. June 20, 1924.

      J. D. Hughes, for plaintiff in error.

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

1. The evidence amply authorized the conviction.

2. The ground of the motion for a new trial alleging that the judge erred in failing to write out, read, and immediately file with the clerk his charge to the jury is without merit, as it does not appear in the motion that counsel requested the judge, before the argument was begun, to write out his charge. See Jones v. State, 65 Ga. 507 (8); Ashley-Price Lumber Co. v. Henry, 23 Ga. App. 93 (1) (98 S. E. 185); Walton v. State, 33 Ga. App. 48 (125 S. E. 511).

(a) The judge, in a note attached to the motion, certifies that “the charge in this case was written out in full . . and filed in ample time to serve any and all purposes for which the defendant might need it.” Under the Penal Code, §§ 1056, 1057, failure to immediately file the written charge is not error. The only requirement of these sections is that when requested the charge be written out and read by the judge as written, and filed with the clerk so as to be accessible to all persons interested in it. The judge certifies that this was done.

(b) The ruling herein does not conflict with Brinde v. State, 17 Ga. App. 741 (88 S. E. 460), and eases there cited.

Judgment affirmed.

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


text:
    15786.
    BROOKING v. THE STATE.
    Under an indictment for assault and battery a conviction of a simple assault was unauthorized where the evidence demanded a finding that if any offense was committed it was that of a battery.
    Decided November 12, 1924.
    Assault; from Newton-superior court—Judge Hutcheson. June 14, 1924.

      Hugene Dickey, G. G. King, for plaintiff in error.

      Claude G. Smith, solicitor-general, contra.
   Bloodworth, J.

In Kennedy v. State, 10 Ga. App. 794 (74 S. E. 95), this court, citing a number of cases to support the proposition, held: “The accused having been indicted for the offense of assault and battery, and the evidence demanding a finding that if any offense at all was committed, it was that of .an unlawful battery, there could be no conviction of simple assault.” See Penal Code (1910), § 19; Harris v. State, 3 Ga. App. 457 (60 S. E. 127); Carter v. State, 7 Ga. App. 44 (1) (65 S. E. 1072); Fronebarger v. State, 27 Ga. App. 607 (109 S. E. 512).

This case is controlled by the rulings in the foregoing cases, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    15809.
    Ray v. The State.
    Decided November 12, 1924.
    Accusation of vagrancy; from city court of Floyd county—Judge Bale. July 7, 1924. .
    The accusation was filed in March and the trial was in June, 1924. Policemen and others testified, that they saw the defendant almost every day, and had never seen him doing any work; that they usually found him about a certain-restaurant in company with men who had the reputation of being bootleggers; that he had no property or income that they knew anything about; that in their opinion he was able to work; that his father-in-law, B. B. Edwards, operated a little store, but they did not know whether the defendant worked in it or had any interest in it or not; he might have property or an interest in the store without their knowing of it. Two witnesses testified that in May they went to the store mentioned above and it was closed, and the defendant and his wife said that B. B. Edwards had the key and they had nothing to do with it.
    . B. B, Edwards testified, that on October 1 of the preceding year he sold to the defendant a half interest in his store, and, not being-able to give the store much time, sold the other half interest to him on January 1, and the defendant and his wife were operating it ever, since, “until a short time ago when he decided to quit the business and go into something else. He has been looking for a job about a month, leaving the store in his wife’s hands to work out, though he. assists his wife at certain hours of the day when his services are needed.” Certain salesmen for wholesale dealers testified that the defendant had been a regular customer of theirs since January 1, making purchases and paying cash for them for the store mentioned above, which had previously been operated by his father-in-law. The defendant’s statement at the trial repeated in substance what had been testified by Edwards, and he added that the business conducted by him at the store was “enough to afford a living and a little something more. And I felt that I could find a job that would pay me better, and would leave the store in the hands of my wife to run during the middle of the day and afternoons, but in the morning, when the business required it, I would be with her and look after the affairs of the store. I have been looking for a job for a month, but they are hard to find. I am not a vagrant. I work when I can find work. At the time I was arrested I was trying to find a job and was still operating my retail grocery store and making an honest living for my wife and myself.”
   Luke, J.

The conviction, was without sufficient evidence to support it; and for this reason it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., concur.

W. J. Nunnally, for plaintiff in error,

cited: Park’s Penal Code, § 1011; 5 Ga. App. 494; 1 Ga. App. 519; 32 Ga. App. 448, 496.

James Maddox, solicitor, cited Penal Code, § 449.


author: Bloodwobth, J.

text:
    15810.
    GAMBLIN v. THE STATE.
    The venue of a charge of receiving stolen goods knowing tlicm to be stolen is the county where the goods are so received.
    Decided November 12, 1924.
    Conviction of receiving stolen goods; from Fulton superior court —Judge Howard. June 14, 1924.
    The indictment contained two counts, the first of which charged larceny in Fulton county, Georgia, of a certain automobile, and the second that in that county the accused “did have and did receive and did buy” said automobile, “knowing that it had been stolen.” The verdict was, “guilty on the second count.”

      W. J. Phillips, T. B. Higdon, for plaintiff in error.

      John A. Boykin, soliciior-general, M. A. Stephens, Ralph II. Pharr, contra.
   Bloodwobth, J.

(After stating the foregoing facts.) It is alleged in the motion for a new trial and argued in the brief of counsel that the venue was not proved; and for this reason a new trial is urged. Under the laws of Georgia, receiving stolen goods, knowing them to have been stolen, is a distinct offense and punishable as such. In Pat v. State, 116 Ga. 93 (2) (42 S. E. 390), the Supreme Court said: “The gist of the offense of receiving stolen goods knowing them to have been stolen is the felonious knowledge that the goods were stolen; and to constitute the offense, the person receiving the goods must have this knowledge at the time of receiving them.” The venue of such a case is the county in which the goods axe received. In Lycette v. State, 75 Ga. 257 (5), it was said: “The venue as to the defendant is .sufficiently laid and proved when it is shown that he received the stolen goods in Bibb county;” this being the county in which the indictment was found. See O'Neal v. State, 24 Ga. App. 160 (5) (99 S. E. 891). The evidence in this case .does not show that the defendant received the stolen automobile in Pulton county, but by direct, affirmative, and uncontradicted evidence does show that the automobile was received by the accused in Dawson county, Georgia. “Where in a criminal ease the evidence for the State is wholly negative in character, and is opposed by evidence for the defendant which is definite, positive, and unimpeached,, and which clearly establishes the innocence of the accused, the negative testimony must yield to the positive evidence, and a verdict reached in disregard of this rule is contrary to law. Where the testimony of witnesses who testified positively may be true without it being necessary to reject any of the negative testimony as untrue, and the testimony can be harmonized without discrediting any witness, it is the duty of the jury to prefer the positive testimony. Penal Code, § 985 [now § 1011]; Civil Code, § 5165 [now § 5751.]” Jacobs v. State, 1 Ga. App. 519 (1) (57 S. E. 1063). “The constitution of this State requires that all criminal cases shall be tried in the county in which the crime is committed, and the venue must be proved beyond a reasonable doubt. Murphy v. State, 121 Ga. 142 (48 S. E. 909); Cooper v. State, 106 Ga. 119 (32 S. E. 23); Smith v. State, 2 Ga. App. 413 (58 S. E. 549). . . In this case the question as to failure to prove venue is specifically raised in the motion for a new- trial, as provided by the act of 1911 (Acts 1911, p. 150), and is argued in the brief of counsel for the plaintiff in error; and there being in the brief of evidence no proof of venue, this court must hold that the trial judge erred in overruling the motion for a new trial. It is unnecessary to pass upon the other assignments of error. Moye v. State, 65 Ga. 754; Wade v. State, 11 Ga. App. 411 (75 S. E. 494).” Dennis v. State, 19 Ga. App. 446 (1, 2) (91 S. E. 783).

Judgment reversed.

Broyles, G. J., and Dulce; J., concur.


text:
    15821.
    MORRIS v. THE STATE.
    The alleged confession was inadmissible as evidence, over the defendant’s objection, because of the inducement held out by the deputy sheriff, who testified: “I told the defendant it would be best for him to come on and tell the truth about it, I told him all we wanted was the truth,' and wanted the man’s goods back. . . I told him the man wanted his goods back, and come clean and tell the truth.”
    Decided November 12, 1924.
    Indictment for burglary; from Bibb superior court—Judge Malcolm D. Jones. June 14, 1924.

      W. A. McClellan, T. A. Jacobs Jr., for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

1. Hpon the trial of a criminal case evidence of a confession by the accused is not admissible unless it appears that the confession was made voluntarily, without being induced by another, by the slightest hope of benefit or the remotest fear of injury. Civil Code (1910), § 1032. In the instant case a deputy sheriff testified to an alleged confession made by the .defendant. Hpon cross-examination the witness swore as follows: “I told the defendant it would be the best for him to come on and tell the truth about it, I told him all we wanted was the truth, and wanted the man’s goods back. . . I told him the man wanted his goods back, and come clean and tell the truth.” It appears from a ground of the motion for a new trial (the truth of which is certified to by the trial judge) that these statements were made by the officer to the defendant before the alleged confession was obtained. Hnder these facts the court committed reversible error in admitting the evidence as to the confession over the timely and appropriate objections, of the defendant. See, in this connection, Green v. State, 88 Ga. 516 (15 S. E. 10, 30 Am. St. R. 167); Dixon v. State, 113 Ga. 1039 (1) (39 S. E. 846); Smith v. State, 125 Ga. 252 (54 S. E. 190); King v. State, 155 Ga. 707 (118 S. E. 368); Johnson v. State, 1 Ga. App. 129 (1), 131 (57 S. E. 934).

2. The other special grounds of the motion for a new trial relate to alleged errors which are not likely to occur upon another trial of the case.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    15842.
    McEntyre v. The State.
    Decided November 12, 1924.
    Accusation of attempt to commit burglary; from city court of Eloyd county—Judge Bale. July 19, 1934.
    Coot McEntyre was found guilty under an accusation charging an attempt to commit burglary. On the trial it was testified, that on the night of November 13, 1933, a hole about five inches across, almost round, was broken in a plate-glass panel near the bottom of one of the double doors on the Third Avenue side of the store of the Hale Drug Company in the City of Rome, Georgia, which store fronts on Broad street; that this hole was about three feet from the lock, and a man could have put his hand through the opening. Policeman Poole testified, that on the night mentioned he and Policemen Guice and Miller, when coming up the west side of Broad street, heard the sound of breaking glass, and that, looking across Broad street and down Third Avenue towards the Third Avenue Hotel, he saw the defendant walking from the direction of the broken door towards that hotel. “He was about fifteen feet from the door when I saw him. I am sure it was the defendant. I knew him from his boyhood, and he wore a white sweater. It was after midnight, but it was him. Broad street at this point is 130 feet broad, and it is about 60 feet then down Third Avenue to where I saw him. We followed him and he turned into First Avenue, and we went in behind the buildings there to follow him. We heard noises back there like some one going through fences. Failing to find him, Miller and I went to his home in the fourth ward to find him, but failed. When we got back to Broad street Mr. Guice had arrested the defendant.” Policemen Miller and Guice testified to the same effect, and Guice added that when he heard the sound of the broken glass he looked up and saw the defendant in a stooping position; that he arrested the defendant on Broad street shortly thereafter while Miller and Poole were gone to the defendant’s home; that he met the defendant coming out of Third Avenue in front of the Hale Drug Company’s place; that the defendant walked to about the middle of the block and met him, and he then made the arrest; that the defendant wore or had a white sweater when arrested.
   Luke, J.

The ionvietion was dependent wholly upon circumstantial evidence, and the evidence was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. It was therefore error to overrule the motion for a new trial.

Judgment reversed.

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

The defendant, in his statement at the trial, denied that he broke the door of the Hale Drug Company, and said that when he was arrested he was on his way to a restaurant to get a sandwich, as he had been up late and was hungry, having been to a dance; that he had a white sweater at the time he was arrested, but they were not unusual; that many young men around town wore them.

M. B. Eubanks, for plaintiff in error. -

J ames Maddox, solicitor, cohtra.


text:
    15878.
    Killabrew v. The State.
    Decided November 12, 1924.
    Indictment for attempt to rob; from Fulton superior court-judge J..E. Thomas. August 5, 1924.
    ' The contention of counsel for the accused, in their brief in the Court of Appeals, was that he “could not have been legally convicted of anything more than an attempt to commit robbery by intimidation.” The prosecutor testified: “I have a grocery store. .. . I was held up in January this year by . . the defendant Ed Killabrew and two other negroes. . . They stopped by the store. One of them said, ‘Boss, have you got any cheese ?’ . . He said he would take a half a pound. I went to the block and cut a half pound and wrapped it up. He said, ‘How much is this?’ I said, T will let you have it for seventeen cents.’ . . He put his hand in his pocket. The counter is about as wide as to the other side of this table. He put his hand in his pocket and said, ‘Keep your mouth shut.’ I did not know what I could do. I had a pistol. I always carry it at night-time. I just brought my arm around by the register, by the scale, and at the same time I dropped down, made like I fainted. I tried to get behind the counter. Every one of them was about five feet apart. One was in the door, one was in the middle, and one was right in front of the scales. One of them tried to get to the register. When I was lying on the floor I got my pistol and shot one time. When I shot one time two of them ran away. This one tried to get back again, and he fell. I went outside and shot again. I shot once in the store and three times outside after him. This is the one right here that pointed the pistol at me. He tried to go to the door. The middle one went to the register. When I shot the pistol two of them got out. When those two got out he tried to get out too. After the defendant said for me to put up my hands and pointed the pistol at me he didn’t say nothing else but just, ‘Keep your mouth shut.’ The middle, boy was trying to go to the register -when I was lying on the floor. I mean he was going toward the cash register, the place where I kept my money. It is a long way to go around the counter. To the cash register must be four feet. You have to go all around the counter. . . I did not pay particular attention to them while I was waiting on them. The first thing I knew one of them had a gun on me. When he threw the gun on me I went behind the counter. I was standing there five minutes. I did not look at his face after I fell down.”
   Broyles, C. J.

Under the facts of this case, the verdict finding- the accused guilty of an attempt to rob “by force and violence” was unauthorized, and the court erred in overruling- the motion for a new trial. See, in this connection, Barksdale v. State, 24 Ga. App. 115 (100 S. E. 45); Tanner v. State, 24 Ga. App. 132 (100 S. E. 44), and citations; Penny v. State, 114 Ga. 77 (39 S. E. 871); Groves v. State, 116 Ga. 516, 519 (42 S. E. 755, 59 L. R. A. 598); Moss v. State, 6 Ga. App. 525 (65 S. E. 300); Leverett v. State, 20 Ga. App. 748 (93 S. E. 232); Wilburn v. State, 22 Ga. App. 614 (97 S. E. 87).

Judgment reversed.

Luke and Bloodworlh, JJ., eoneur.

The defendant attempted to establish an alibi.

The trial judge, in overruling the motion for a new trial, said: “It appearing from the record that said defendant and two companions entered the place of business of the prosecuting witness, that one of them called for some article, representing that he wished to purchase it; that the defendant Ed Killabrew then covered the prosecuting witness with a pistol, while his two companions attempted to get to the cash register where the money was kept for the purpose of entering said cash register and taking the money therein contained away by force, it is the judgment of the court that these acts constitute the offense of attempt to commit- robbery by force.”

Branch & Howard, Eugene L. Tiller, for plaintiff in error,

cited 1 Ga. App. 136.

John A. Boylcin, solicitor-general, B. A. Stephens, Ralph II. Pharr, contra,

cited the cases cited in the decision; also 66 Ga. 167; 125 Ga. 259 (2); 111 Ga. 832 (2), 95 Ga. 481.


text:
    15779.
    BROCKETT v. THE STATE.
    'Any one operating a slot machine, where persons depositing their money therein and “playing” the machine may, hy chance, get, directly or indirectly, articles of value worth more than the money deposited in the machine, is guilty of a violation of § 398 of the Penal Code of 1910.
    Decided November 13, 1924.
    Operating gaming device; from Decatur superior court—Judge Eve presiding. June 26, 1924.
    The record contains an agreed statement of facts, as follows: “ J. R. Brockett was convicted in the superior court of [Decatur] county of the violation of section 398 of the Penal Code of 1910, which provides as follows: No person, by himself or another, shall keep, maintain, employ or carry on any lottery in this State, or any other scheme or device for the hazarding of money or other valuable things.’ It is agreed that J. R. Brockett, the defendant, did operate and allow to be operated in his place of business, within the City of Bainbridge, county of Decatur and State of Georgia, within the last two years, the following character and kind of machine, which operated and was operated in the following manner: The machine is a boxed-in, metal-topped construction, 24x18x14 inches, with a slot or aperture on the top thereof into which can be inserted a nickel, or a metal premium check, with a handle immediately to the right thereof and attached thereto. It also has attached a vertical container which holds chewing gum or mints, and is operated as follows: A Ave-cent coin is deposited in the aperture or slot of the machine, and the pulling of the lever thereon exposes a Ave-cent package of chewing gum, or of the mints, which is released by the operator pulling a lever and may be operated by the person operating the machine. There is also on the front of the machine the following: fEor 5 cents you receive a package of confection and — premium checks.1 Where the — appears is ■ a small window about two inches by two inches in size, and in the window is exhibited each time the word No./ or the number of trade checks that will be received upon the deposit of a nickel and the operation of the machine. On the deposit of each nickel and the pulling of the lever the trader or operator procures a nickel’s worth of chewing gum or mints, and is advised in advance, by inspection of the window which is directly in front of the operator, as to whether or not he will receive any checks, and, if so, the number of checks, which number runs to twenty. It is agreed that under the operation of the machine the purchaser procures the chewing gum or mints being vended at the time, except when the checks are redeposited in the machine, and that he knows in advance, by inspection of the window, how many checks he will procure, if any, before he deposits the nickel and the operation of the machine commences in that particular instance; but he does not know what will show up in the window for a future operation, or a succeeding operation. If the window of the machine shows that the operator would get a package of mints and two trade cheeks of the value of five cents each, which could be traded in at the store of the defendant for any merchandise, or be redeposited in the machine, the operator of the machine would know in advance of the deposit and the operation of the machine that he would procure a package of gum or mints and two trade checks worth five cents each in trade. He would not know, however, what checks, if any, the second, third, fourth, fifth, or future or successive operations of the .machine might'disclose in the window were he to continue to deposit nickels or checks up to that number. He would know, however, at each instance and upon each deposit and operation of the machine, exactly what and how much he would receive for the deposit so made when the machine was operated. Upon a redeposit into the machine of a premium check the operator would not receive any chewing gum or mints. It is agreed that it is purely a matter of law as to whether or not the operation of the machine above described violates the section under which the defendant was convicted. It is agreed further, by and between the attorney representing the defendant and the solicitor-general representing the State, with the approval of the judge, that the above and foregoing statement of facts sets out and describes the machine, the character and nature of its operation, and the results obtained thereby, which were the facts of the case as offered upon the trial of said cause.”
    After conviction the accused moved for a new trial, upon the usual general grounds only; and he excepted to the judgment overruling the motion.

      Hartsfield & Conger, for plaintiff in error.

      B. C. Gardner, solicitor-general, contra.
   Broyles, C. J.

(After stating the foregoing facts.) In our opinion the slot machine as operated by the defendant was a gambling device, within the meaning 'of the statute. Meyer v. State, 112 Ga. 20 (37 S. E. 96, 51 L. R. A. 496, 81 Am. St. Rep. 17), and authorities cited; Alexander v. Atlanta, 13 Ga. App. 354 (79 S. E. 177).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15781.
    PARHAM v. NATIONAL RELIEF ASSURANCE COMPANY.
    In determining whether, under the terms of the contract of insurance, the policy had lapsed at the time of the accident in question, there being conflict in its provisions as to when the insurance became of force, the provisions most favorable to the insured must control; and, it being provided in the application of the insured, which by the terms of the policy was made a part of the contract, that the insurance should not take effect until the delivery of the policy to the insured, and it appearing from the evidence, without contradiction, that the policy was not delivered until April 4, 1921, it must be held that the insurance ran from that date, althortgh the policy stated that it ran from March 28, 1921, the date of the policy.
    Under the facts of the case the plaintiff was entitled to recover, and the direction of the verdict in favor of the defendant was error.
    Decided November 13, 1924.
    Complaint; from Bibb superior court—Judge Mathews. May 1, 1924.

      Ryals & Anderson, for plaintiff.

      R. D. Feagin, for defendant.
   Broyles, C. J.

This is' a suit upon an accident policy. The policy was dated March 28, 1921, and recited that the insured was insured from 12 o’clock noon on that day until 12 o’clock noon of May 1, 1921, and for such further periods stated in 'the renewal receipts as the renewal premium of $3.72 per month paid by the insured would maintain the policy in force. The policy further provided as follows: “ Strict compliance with all of the provisions and requirements is a condition precedent to recovery hereunder, and failure in any respect shall forfeit to the company all right to any indemnity. . . The payment of a past-due premium shall not continue the insurance in force beyond the next succeeding renewal date. . . Acceptance of any renewal premium shall be optional with the company. . . No agent has authority to change this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the company and such approval be entered thereon. . . If default be made in the payment of the agreed premium for this policy the subsequent acceptance of a premium by the company or by any of its duly authorized agents shall reinstate the policy, but only to -cover accidental injury thereafter sustained. . . Premiums are due in advance as stipulated in the policy or renewal receipts, and must be so paid.” It was expressly stated, however, in the application for the policy, which was signed by the insured and attached to the policy and, by the express terms of the policy, made a part of the insurance contract, that the insurance was no l to take effect until the delivery of the policy to the insured.

The undisputed evidence showed that the policy was not delivered to the insured until April 4, 1921, when the first monthly premium was paid. The undisputed evidence further showed payments of the monthly premiums on May 2, 1921, June 8, 1921, July 2, 1921, August 2, 1921, and September 6, 1921, and that the insured was injured by an accident on September 3, 1921. There being a conflict between the provisions of the policy as to when the insurance became of force, the provisions most favorable to the insured must control, and, under this ruling and the facts of the case, we hold that the insurance did not take effect until the fourth day of April, 1921, and that each premium paid by the insured purchased one month’s insurance, so that the premium paid on August 2, 1921, continued the policy in force until September 4, 1921, and the insurance had not lapsed on the third day of that month when the insured was accidentally injured. Stout v. Missouri &c. Co. (Mo. App.), 179 S. W. 993 (3); Halsey v. American &c. Ins. Co., 258 Mo. 659 (1) (167 S. W. 951); Stramback v. Fidelity &c. Ins. Co., 94 Minn. 281 (102 N. W. 731). It follows that the plaintiff was entitled to recover, and that the trial court erred in directing a verdict for the defendant.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    15782.
    FREEMAN v. CALVERT MORTGAGE COMPANY.
    The evidence' demanded the verdict directed by the court.
    Exception to the overruling of the demurrer could not properly be taken "in a motion for a new trial.
    Decided November 13, 1924.
    Complaint; from Laurens superior court—Judge Kent. June 31, 1934.

      F. N. Freeman, for plaintiff in error.

      I. S. Chappell, contra.
   Luke, J.

1. The evidence demanded a verdict for the plaintiff, for principal, interest, and attorney’s fees provided for in the notes sued on, and the court properly directed the jury so to find.

3. The ground of the motion for a new trial which complains of the judgment sustaining a demurrer to the defendant’s answer can not be considered, for the reason pointed out in Southern Ry. Co. v. Cook, 106 Ga. 450 (1) (33 S. E. 585), and cases cited.

Judgment affirmed.

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


text:
    15784.
    Sistrunk v. The State.
    Decided November 13, 1924.
    Conviction of cheating and swindling; from city court of Fair-burn—Judge Parker. June 9, 1934.

      J. F. Sistrunk, for plaintiff in error.

      F. C. Hogan, solicitor, contra.
   Luke, J.

In view of the note of the trial judge in certifying to the bill of exceptions, no error is shown upon the trial of the case.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., oonowr.


author: Broyles, 0. J.

text:
    15789.
    ROBINSON et al. v. WHITE, ordinary, for use, etc.
    There was no evidence that the administrator’s payment to the intestate’s widow for a year’s support was made with the consent of the ordinary or had been approved by him; the plaintiff’s judgment was superior to the debt evidenced by the note paid by the administrator; and the-verdict against the administrator and the surety on his bond was authorized by the evidence.
    Decided November 13, 1924.
    Action on bond; from city court of Dublin—Judge Sturgis. May 26, 1924.

      B. Bari Camp, T. B. Hightower> for plaintiffs in error.

      Larsen & Crockett, contra.
   Broyles, 0. J.

1. In this case a verdict was directed for the plaintiff, but the defendant’s motion for a new trial (which was overruled) contained the usual general grounds only. The judgment, therefore, must be affirmed if the verdict is supported by any evidence.

. 2. This was an action to recover from an administrator and the surety on his bond, on account of a devastavit. The plaintiff alleged and proved that it held a judgment for $448 principal, besides interest and attorney’s fees, rendered against the intestate and the person who was sued as administrator, and that execution upon the judgment was duly issued and recorded, and that the sum of $200 had been paid thereon; that the administrator had collected money to the amount of $1,749.44, and had paid to George-M. Foreman & Company, on a promissory note, $299.52, and had paid to Mrs. E. Y. Robinson (the widow of the intestate) the sum of $400, and had paid out all of the funds of the estate, without paying anything on the plaintiff’s execution. There was evidence that the $400 had been paid to Mrs. Robinson for a year’s support, but there was no evidence whatever that this payment was made with the consent of the ordinary, or that it had ever been approved by him. See, in this connection, Shipp v. McCowen, 147 Ga. 711, 715 (95 S. E. 251). The debt evidenced by the note to Foreman & Company was clearly inferior to the plaintiff’s judgment. Civil Code (1910), § 4000 (6). The verdict directed for the plaintiff was authorized by the evidence, and the court did not err in refusing a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15791.
    AILEY v. LINDALE CO-OPERATIVE STORE.
    1. Where to a suit upon an account for goods sold tlie defendant files a plea denying the indebtedness, the burden of proving the contract for the sale of the goods is upon the plaintiff; and “proof of a contract with a corporation includes proof of the authority of the agent purporting to act for it to make the alleged contract, or proof that the contract as made was subsequently ratified by the corporation.” Lin-dale Go-operative Blare v. Ailey, 32 Ga. App. 30 (122 ¡3. E. 718 (2)).
    2. Under the law and the facts of this case, the express company, to which the plaintiff claims to have delivered the meat, was not the agent of the defendant; and unless the goods or some portion of them were received and accepted by the defendant, no right of action accrued to the plaintiff.
    3. “Evidence that a letter was mailed to a named person does not raise a presumption that he received it, unless there is also evidence that the letter was properly addressed and duly stamped.”
    4. The court did not err in the rejection of evidence as complained of in special grounds 6 and 7 of the motion for a new trial.
    5. A nonsuit was properly granted.
    Decided November 13, 1924.
    Complaint; from city court of Floyd county—Judge Bale. June 2, 1924.

      Harris & Harris, for plaintiff.

      Porter & Meiane, for defendant.
   Bloodworth, J.

The suit was upon an account for the purchase price of certain meat which the plaintiff alleged he shipped bjr express from Charleston, Tennessee, to the defendant at Lindale, Georgia. In the plea of defendant it denied all liability. The evidence of the plaintiff showed that he went into a store between Lome and Lindale, which “they said” was the Lindale Co-operative Store; that he sold to a person, who with others was working in the store, the meat for the purchase price of which suit was brought; that they agreed that the meat should be shipped by express from Charleston, Tennessee, to the Lindale Co-operative Store at Lin-dale, Georgia; and that he sent a bill of the goods to the defendant and wrote to it several letters, but never heard from it. Upon the conclusion of the evidence for the plaintiff, on motion of counsel for the defendant, a nonsuit was granted.

This is the second appearance of this case in this court. See Lindale Co-operative Store v. Ailey, supra. When first here it came after a verdict for the plaintiff had been directed. So fax as it relates to the contract between the plaintiff and the purported agent of the defendant, the evidence on both trials is substantially the same, and the rulings stated iff the first and second headnotes of the opinion in the first case are applicable in this one, and are controlling on the questions involved. In the evidence there is nothing to show that the purported agent of the defendant, the person with whom the plaintiff dealt, had any authority to bind the defendant or that the defendant ever ratified the alleged contract.

On the first trial there was no evidence of an agreement, alleged to have been made between the plaintiff and the purported agent of the defendant, that the goods were to be delivered to any certain carrier. On the second trial the plaintiff swore that there was an agreement that the goods were to be shipped by express. However, if the person with whom the plaintiff dealt had no authority to make the alleged contract for the defendant, then there was no agreement that the goods should be shipped by express, and in the absence of such an agreement or proof of “a usage between the places” relative thereto, delivery to the express company was not delivery to the defendant. Under the law and the facts of this case, the express company, to which the plaintiff claims to have delivered the meat, was not the agent of the defendant, and if the goods or some portion of them were not received and accepted by the defendant no right of action accrued to the plaintiff. It is not claimed that the goods were delivered directly to the defendant. Denmead v. Glass, 30 Ga. 637 (2); Lloyd v. Wight, 20 Ga. 574.

The plaintiff insists that he ought to recover on the following testimony given by himself: “I mailed the bill to the Lindale Co-operative Store at Lindale, Ga., and have written them several letters since that time about the bill, but have never received an answer. I always mailed the letters myself in my envelope with my return address on them, and none of the letters have been returned to me.” Presumably this contention is based on § 5741 of the Civil Code of 1910. Granting (but not holding) that this law is applicable to the facts of the case we are now considering, the evidence fails to show affirmatively that the letters which the plaintiff claims' to have mailed to the defendant were “duly stamped.” In Rawleigh Medical Co. v. Burney, 22 Ga. App. 492 (1) (96 S. E. 578), it was held': “Evidence that a letter was mailed to a named person does not raise a presumption that he received it, unless there is also evidence that the letter was properly addressed and duly stamped.” (Italics ours.) See also cases cited in the opinion, pages 493, 494.

Special ground 6 of the motion for a new trial alleges that the court erred in ruling out the following from the plaintiff’s testimony: “As manager of the store;” and ground 7 complains that the court erred in refusing to admit the following testimony of the plaintiff: “He said he ivas the manager.” Even if we concede that these grounds of the motion properly present questions for the consideration of this court, there was no error in the ruling of the judge, as the evidence of the plaintiff shows that he did not know that he was in the store of the defendant at the time that he was talking to this unidentified man, and he swore: “I don’t know if I sold any goods to the Lindale Co-operative Store or to whom I sold them.”

At the conclusion of the evidence upon the second trial the defendant made a motion to nonsuit, on the following grounds: “1. That the evidence of the plaintiff shows that the alleged purchase of the meat sued for, in the sum of $137.25, is a contract for the sale of goods and merchandise for more than fifty dollars, and that under the testimony the alleged contract for said goods and merchandise was not in writing and signed by the defendant, nor by any person having the right and authority to bind the defendant, nor does the evidence show that anything was given in earnest to bind the bargain or in part payment thereof, or that any of the goods alleged to have been sold were actually received by the defendant, or by any agent of the defendant who had the right and authority to contract and bind the defendants; that for said reason said alleged sale and contract for meat is governed by the statute of frauds and is not enforceable. 2. Because the evidence in said case, on the part of the plaintiff, fails to show either that the person with whom the plaintiff dealt in making said alleged contract had authority to make the contract for the defendant, or that the defendant had, through any duly authorized agent, ratified the alleged agent’s act in so doing.”

This motion was properly sustained and a nonsuit granted, for, in addition to the fact that it is not shown that the person with whom plaintiff dealt had any authority to contract for the defendant, or that the defendant ratified the contract, it clearly appears that the meat alleged to have been sold to the defendant exceeded upvalue $50, that the contract was not in writing, and that there was no actual delivery of the meat to the defendant, and it is not shown that he gave anything in earnest to bind the bargain. Civil Code (1910), §§ 3222, 3222 (7). See, in this connection, Killarney Realty Co. v. Wimpey, 30 Ga. App. 390 (5) (118 S. E. 581), and citations; Gunn v. Wilson Co., 20 Ga. App. 17 (92 S. E. 721).

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.


author: Bboyles, O. J.

text:
    15792.
    Knight v. Richie.
    Decided November 13, 1924.
    Complaint; from Pulaski superior court—Judge Graham. April 19, 1924.

      W. A. Mason, for plaintiff.

      Marion Turner, for defendant.
   Bboyles, O. J.

It is well settled, that where the court directs a verdict, and the motion for a new trial by the losing party contains only the usual general grounds, the judgment of the trial court, overruling the motion for a new trial, will be affirmed, if there is any evidence in the record authorizing the verdict directed. Under this ruling and the facts of the instant case, the judgment below is

Affirmed.

Luhe and Bloockoorth, JJ., concur.


text:
    15793.
    Brunson v. The State.
    Decided November 13, 1924.
    Conviction of shooting at another; from Sumter superior court— Judge Littlejohn. June 21, 1924.

      J. A. Hixon, II. B. Williams, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bboyles, O. J.

1. The defendant having been convicted of shooting at another, the failure of the court to charge the law of murder, or of justifiable homicide, or to define to the jury what constitutes murder, and justifiable homicide, presents no cause for another trial of the case.

2. Under all the particular facts of the case and the entire charge of the court, none of the alleged errors in the charge, either of commission or omission, requires a reversal of the judgment denying the motion for a new trial.

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

Judgment affirmed.

Luhe and Bloockoorth, JJ., concur.


text:
    15796.
    Gibson v. Jordan et al.

    Decided November 13, 1924.
    Action on bond; from Muscogee superior court—Judge Munro. June 18, 1924.

      George C. Palmer, for plaintiff in error.

      McCrory & Bagley, contra.
   Luke, J.

The question raised by the writ of error here is controlled by the case of Rowe Brothers Motor Co. v. Twiggs County, 28 Ga. App. 211 (110 S. E. 925). The first grant of the motion for new trial was not error for any reason pointed out in the record.

Judgment affirmed.

Broyles, G. J., and Bloodnoorth, J., concur.


text:
    15798.
    Whatley v. Wilson.
    Decided November 13, 1924.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. June 24, 1924.

      Malberry Smith, Lowndes Calhoun, for plaintiff in error.

      D. II. McWilliam, contra.
   Broyles, C. J.

A verdict and judgment for a sum of money was obtained in a justice’s court against the petitioner in certiorari. The petition for certiorari containing no assignment of error whatever upon the verdict or judgment, the judge of the superior court did not err in overruling the certiorari. Papworth v. City of Fitzgerald, 111 Ga. 54 (2) (36 S. E. 311).

Judgment affirmed.

Luke cmd Bloodworth, JJ., concur.


author: Bloodworth, <T.

text:
    15801.
    Wellmaker v. The State.
    Decided November 13, 1924.
    Indictment for rocking railroad-train; from Lincoln superior court—Judge Shurley. June 23, 1924.

      Homer Legg, B. W. Ware, for plaintiff in error.

      M. L, Felts, solicitor-general, contra,
   Bloodworth, <T.

When the instructions complained of are read in connection with the remainder of the charge of the court, no error requiring the grant of a new trial is shown therein.

There is some evidence to support the verdict, and the court properly refused a new trial.

Judgment affirmed.

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


text:
    15802.
    Glaze v. The State.
    Decided November 13, 1924.
    Conviction of assault and battery; from Fulton superior court— Judge Howard. May 10, 1924.

      Thomas J. Lewis, T. L. Slappey, for plaintiff in error.

      John A. Boykin, solicitor-general, B. A. Stephens, Ralph II. Pharr, contra.
   Broyles, C. J.

It not appearing from the bill of exceptions or the record that the bill of exceptions was tendered to the judge within twenty days of the judgment complained of (the overruling of the motion for a new trial), this court is without jurisdiction to entertain the bill of exceptions.

Writ of error dismissed.

Luke and BloodioorUi, JJ., concur.


text:
    15806.
    PULLIAM v. MERCHANTS AND MINERS STATE BANK.
    In allowing the qjlea, to which a special demurrer had been sustained, to be amended at a subsequent term of the court no error was committed. The unconditional promise to pay contained in each of the notes sued on could not be defeated by proof of a contemporaneous oral agreement that it would never be enforced.
    Decided November 13, 1924.
    Complaint; from Fannin superior court—Judge Blair. May 31, 1924.

      Morris, Hatvkins & Wallace, Thomas A. Brown, for plaintiff in error.

      William Butt, contra.
   Luke, J.

1. Where an order sustaining a special demurrer to a plea states merely that the demurrer “is sustained,” and the ease is continued to the next term of court on account of the illness of defendant’s counsel, and at that term an amendment to the plea is offered, and is allowed without objection, subject to demurrer, and a demurrer thereto is filed, it can not be held that the allowance of the amendment was error1 because the original order provided no time for amendment and no exceptions pendente lite were filed to such order. News Publishing Co. v. Lowe, 8 Ga. App. 333 (69 S. E. 128).

2. The suit was upon two promissory notes given under seal and providing that certain sums of money be unconditionally paid at specified times. The defendant’s pleas, after they were amended, were substantially as follows: The first note was given for fourteen shares of stock in the Merchants and Miners State Bank, upon the verbal promise of the officers of said- bank that they would sell said stock to others, and that the defendant would never have to pay said note. Said stock was never issued, never sold, and never delivered or tendered to defendant. Nor did said officers ever intend to sell or dispose of said stock. The second note was procured through fraud, “in that defendant was indriced to give said note based upon the other note Avith the understanding had with said officers that said note Avas never to be collected, but was to be merely held by the bank as an apparent asset.” Defendant Avas neArer a bona fide stockholder of said bank; no stock-certificates Avere eArer delivered, or intended to be delivered to him; defendant never received any value for either of said notes; and the consideration of said notes has wholly failed. Said fraud perpetrated by said bank consisted in said officers and directors failing, Avith fraudulent intent, to adopt any resolution authorizing it to enter into said contract and understanding with defendant. It was their purpose to obtain the Wo notes from defendant without passing any resolution of the board of directors by which they believed plaintiff would be bound in law. Defendant had long known said officers and directors, and had had dealings Avith them, and for this reason reposed great confidence in them, and was thus induced to execute and deliver said notes, relying upon said officers and directors to cfo all things necessary to protect defendant and to bind plaintiff to perform its said undertaking and contract with this defendant. Said two notes were procured through fraud, were wholly without consideration and Avere so regarded by the officers and directors of said bank, unless they, as representatives and officers and directors, complied with their solemn obligation by selling said stock to third persons.

The unconditional promise to pay contained in each of the notes under consideration could not be defeated by proof of a contemporaneous verbal agreement that it Avould never be enforced. Civil Code (1910), § 5788; Sasser v. McGovern, 11 Ga. App. 88 (74 S. E. 197); Hirsch v. Oliver, 91 Ga. 554 (2) (18 S. E. 354); Dendy v. Gamble, 59 Ga. 434 (1); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86).

Judgment affirmed.

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


text:
    15811.
    Gate City Coffin Company v. Hall.
    Decided November 13, 1924.
    Action for .breach of contract; from Fulton superior court— Judge Ellis. June 10, 1924.
    Smith, Hammond & Smith, for plaintiff in error.

      JE. Smythe Gambrell, Underwood, Pomeroy & Haas, contra.
   Broyles, C. J.

1. Where goods are sold for cash to be paid on delivery, the prepayment of the purchase price is a condition precedent to the sale, and where the purchase price is not paid, the title remains in the vendor, notwithstanding possession of the goods by the buyer. Bergan v. Magnus, 98 Ga. 514 (1) (25 S. E. 570); Starnes v. Roberts, 128 Ga. 718 (58 S. E. 348); Bowen v. DeLoach, 13 Ga. App. 458 (1) (79 S. E. 371).

2. In such a case as above stated the contract is executory (Dilman v. Patterson, 2 Ga. App. 213 (1, 2), 58 S. E. 365), and upon a breach thereof by the buyer the seller can bring an action, under § 4131 of the Civil Code of 1910, to recover the difference between the contract price and the market price.

3. Under the above-stated rulings and the facts of the instant case, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15814.
    Johnson v. American National Bank.
    Decided November 13, 1924.
   Broyles, C. J.

1. Where it is hot necessary in the first instance to have the contract put into writing, parol evidence is admissible to show that a written contract, since its execution, has been enlarged, diminished, altered, or abrogated, by mutual consent of the parties. Sparks Improvement Co. v. Jones, 4 Ga. App. 61 (3) (60 S. E. 810); Augusta Southern R. Co. v. Smith, 106 Ga. 864, 866 (335 S. E. 28), and authorities cited.

2. A contract creating the relation of landlord and tenant for one year only need not be in writing, but may be by parol. Civil Code (1910), § 3693.

3. Under the foregoing rulings and the facts of the instant case, it was reversible error for the court to exclude the testimony of the defendant (the plaintiff in error), as set forth in the first special ground of the motion for a new trial.

4. Grounds 2 and 3 of the amendment to the motion for a new trial are too incomplete to raise any question for the consideration of this court.

5. The court erred in directing a verdict in favor of the plaintiff, and in subsequently overruling the defendant’s motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Complaint; from Pulaski superior court—Judge Graham. June 19, 1924.

H. E. Coates, Marion Turner, for plaintiff in error.

Homer Beeland, Lawson & Ware, contra.