text:
    1005.
    TUTEN v. ATLANTIC COAST LINE RAILROAD CO.
    1. ‘'"The testimony of a party wlio offers himself as a witness in his own behalf is to .be construed most strongly against him, when it is self-contradictory/ vague, or equivocal.”
    2. At common law contributory negligence on the part of the plaintiff in an action based on negligence is an absolute bar to his recovery; and, in suits for personal injuries received in a State in which the common law prevails, if the plaintiff by some negligence directly contributed to the injury sustained, he can not recover, even though it appear that the defendant also was negligent. '
    Action for damages, from city court of Savannah — Judge Freeman. January 15, 1908.
    Argued March 13,
    Decided May 18, 1908.

      Oliver & Oliver, for plaintiff.

      Garrard & Meldrim, for defendant.
   Powell, J.

For personal injuries sustained at Port Tampa City, Florida, Mrs. Tuten brought suit in the city court of Savannah, alleging in her- petition that the common law prevails in Florida with respect to torts of this character. To the judgment of the trial court in awarding a nonsuit, she excepts. The plaintiff herself was the only witness introduced as to how the injury happened. According to her narrative, she boarded a train of the Atlantic Coast Line Bailroad Company in Savannah, Georgia, on Juty 2,‘ 1907, for Port Tampa City, Florida, and reached her destination at about five minutes after seven o’clock at night. She was helped from the train on to the station platform by the conductor, and immediately, to use her own words, “went into the waiting-room and spoke to a young man in there. I asked him if he could show me to my son, Mr. Weldon Tuten’s house; he said, ‘No ma’am, I know him, but don’t know Avhere he lives; I am a stranger here, been here only two or three days/ Besides this man, there was a little girl in there. This light I saw in the waiting-room; I did not see any other light around there — not a one. I got to the waiting-room from the platform. The conductor took me right off at the platform, and put me on the platform; the premises looked all right, as far as I could see; I never saw it in the daytime; I have been there twice in the nighttime.” The plaintiff remained in the waiting-room about ten minutes, until, after the train had pulled off, leaving the platform,- as she said, in total darkness (though to us this statement seems strange, considering the time of day named), she went out on the platform, where it was so dark she “could not see her hand before her,” in an endeavor to find the steps leading to the street. While going along on the platform, sliding her feet before her, she came to a place which she says, “I thought was steps, and I eased one foot down to feel for the steps, and that is the last I remember.” On cross-examination she said: “I reckon I told Dr. Munch that I was walking down the platform to go to my son’s house, that I had been there before and thought I could find it, and that I fell off the platform. I don’t remember that I did. As I tell you, I was knocked senseless. . . I fell through a platform, where there was a place that I thought was steps; I was hunting steps; there was a place cut in the platform for an ice box to set on, and I thought it was steps. That is the best of my testimony,— that I felt for the steps and could not find them, and fell down; I don’t know that I fell off the platform; I know I was feeling around with my feet, and came to a place where I thought was steps, and I suppose it was cut there for an ice box.”

In her petition the plaintiff alleged that she fell through an unprotected hole or opening in the platform; and her counsel argue that her testimony sustains this allegation of the petition. “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal.” Southern Ry. Co. v. Hobbs, 121 Ga. 428 (39 S. E. 294); Steele v. Central Ry. Co., 123 Ga. 237 (51 S. E. 438). “If a plaintiff fails to establish the material allegations of his petition, or if his testimony is contradictory and uncertain as to such allegations, the court, on motion to nonsuit, should construe the evidence most strongly against him.” Ray v. Green, 113 Ga. 920 (39 S. E. 470). In the light of this cardinal rule of construction, it is obvious that the plaintiff’s testimony in the present case will not authorize the inference that she fell through an unprotected hole in the platform; nor indeed that she had personal knowledge that any such hole actually existed therein. The view of her testimony-which the rule above mentioned forces us to accept is that while groping around in total darkness, on a platform with which she was unfamiliar,, feeling her way by sliding her feet before her, she came to a place which she thought was steps. She then eased one foot down, and thus lost her balance and fell. She was knocked senseless by the fall, and in the nature of things could not know whether she had fallen over the edge of the platform or in some other way. That she fell through an unprotected hole in the platform was a mere supposition on her part.

The theory of counsel for the plaintiff in error is that at the time of the injury Mrs. Tuten was still a passenger, and that therefore the railway company owed her the duty of keeping its station facilities in a reasonably safe condition for ingress and egress. It is then argued that a breach of this duty in'not having the platform properly lighted was the cause of the plaintiff’s injury. It is undoubtedly true that the relation of carrier and passenger continues until the passenger has reached his destination and has had a reasonable time to leave the premises of the railroad company. B. & W. R. Co. v. Moore, 101 Ga. 684 (28 S. E. 1000); 5 Am. & Eng. Enc. Law (2d ed.), 497, 499; Glenn v. L. E. etc. R. Co., 165 Ind. 659 (75 N. E. 282, 2 L. R. A. (N.S.) 874, and note). So, too, as long as the passenger relation continues, the carrier is under the legal duty of maintaining its premises in a reasonably safe condition for the uses to which they are adapted. Central R. Co. v. Thompson, 76 Ga. 778; So. Ry. Co. v. Reaves, 116 Ga. 743 (42 S. E. 1015). But we deem it unnecessary to decide in this case whether at the time of the injury the relation of passenger and carrier had been- terminated, or whether the carrier liad failed in its duty to properly light its premises. It may be •assumed, in favor of the plaintiff, both that she was at the time of the injury a passenger and that the carrier was negligent in the matter of not having the premises sufficiently lighted; and still the plaintiff has failed to make out her cause of action.

In cases of this character based on the law of Georgia as embodied in the Civil Code, §§2322, 3830, where both the plaintiff and the defendant have been guilty of negligence, the plaintiff may recover, but the damages should be diminished by the jury in proportion to the amount of default attributable to him. This principle of comparative negligence and consequent apportionment of damages was adopted from admiralty law, and was not known at common law. Burdick on Torts, 430; Macon & Western R. Co. v. Johnson, 38 Ga. 409, 433; Ala. Ry. Co. v. Coggins, 88 Fed. 455 (3), 460 (32 C. C. A. 1). At common law the rule as to the plaintiff was more exacting; if his negligence had materially contributed to the injury, his cause of action was absolutely barred, irrespective of whether the defendant also had been negligent. 7 Am. & Eng. Enc. Law (2d ed.), 371; Macon R. Co. v. Johnson, supra; Martin v. Great Northern Ry. Co., 81 Eng. Com. Law Rep. 177, 192; Radly v. London Ry. Co., 46 L. J. Ex. (N.S.) 573. This long-recognized common-law principle is well stated by Lord Esher in the recent case of Thomas v. Quatermaine, L. R. 18 Q. B. 685, 688, 56 L. J. Q. B. 340, as follows: “In an action for injuries arising from negligence, it alwaj^s was a defense that the plaintiff had failed to show that, as between him and the defendant, the injury had happened solely by the defendant’s negligence. If the plaintiff, by some negligence on his part, directly contributed to the injury, it was caused by the joint negligence of both, and no longer by the sole negligence of the defendant; and that formed a defense.” In the case at bar the injury occurred in the State of Florida; and in her declaration the plaintiff pleads that the principles of the common law prevail there with respect to torts of this character. At the trial no proof was made of that law or of any other law being of force there. The allegation of the plaintiff’s petition is an admission by her that the common law is of force in Florida, and the case will be disposed of upon that hypothesis; and what course this court would pursue in the absence of any such admission is not involved.

As already stated, under the common law the plaintiff can not recover if her own negligence was a material contributing cause to the injury which she sustained. It 'should be borne in mind, in determining this question, that the conduct of the plaintiff is to be compared to the conduct of a person of ordinary intelligence and prudence similarly circumstanced. Thus judged, it seems plain that the plaintiff’s own testimony shows that she was guilty of contributory negligence. She arrived at Port Tampa City after nightfall, and..went into the waiting-room where there was a lighted lantern sitting on a table; and, after asking some one if he 'knew where her son lived and receiving a negative reply, she walked out upon the platform, without taking any precautionary measures, although she says it was so dark she could not see her hand before her, and although she was unfamiliar with the station premises, never having been there in the daytime. It does not appear how many doors there were leading- from the waiting-room, or what door the plaintiff went out of when she left it to go upon the platform. In view of the darkness of the night, her unfamiliarity with the premises, her lack of knowledge as to the location of the steps, her knowledge of the danger involved in the attempt, as shown by her conduct in sliding her feet before her to find the steps, it was incumbent upon her to do one of two things before unnecessarily exposing herself to the dangerous condition which she saw and appreciated; she should have requested the agent, or the other person present, to show her the proper exit from the building to the street, or else have taken the lantern which she says was on the table in the waiting-room, and located the steps. Negligence, unless palpable, is a jury question, but it seems too plain for dispute that a person of ordinary prudence, similarly circumstanced, — the standard by which she is to be judged,— would certainly have availed himself of some precautionary measure to avoid the consequence of the dangerous condition which the antecedent negligence of the defendant had created, and which was obvious to and appreciated by the plaintiff herself. Instead of doing this, the plaintiff deliberately left a lighted waiting-room and went out on a platform with which she was unfamiliar, and where it was utterly dark, and, while groping around by feeling with her feet, made an error of judgment as to the location of the steps, and by a heedless false step brought the injuries upon herself. She had the last clear chance to avoid the injury and did not avail herself of it. So far as the record discloses, she unnecessarily exposed herself to a known danger merely to save herself from a little inconvenience, and without any necessity for so doing. In the- eye of the common law she must be regarded as the author of her own wrong, because “it were infinite for the law to judge of the cause of causes, and their impulsion one of another. Therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” Lord Bacon, Maxims of the Law, Beg. 1. Beginning at the injury and going backward, the plaintiff’s own negligent conduct immediately contributed to her misfortune, and the harm which befell her is damnum absque injuria. Nor can the plaintiff’s conduct be excused on the ground that she made an error of judgment in trying to escape imminent ^danger; as where one jumps from a wagon while the team is running away, or from a train to avoid an imminent collision, or where a car has been derailed and the plaintiff is injured, when he might have escaped, if he had remained where he was. Georgia R. Co. v. Rhodes, 56 Ga. 645; Mobile R. Co. v. Ashcraft, 48 Ala. 15; Turner v. Buchanan, 82 Ind. 147 (42 Am. R. 485), and other eases cited in the note .to Freer v. Cameron, 55 Am. Dec. 663, 675. The reason underlying the doctrine of these cases is that the law will take account of the circumstances surrounding an act; and if those circumstances are such as to produce excitement and interfere with deliberation, the act is to be measured accordingly. It might be regarded as a rash thing to jump from a rapidly moving train even when a collision is imminent, and yet the excitement naturally produced by such an exigency might cause a prudent person to do the very thing which in our calmer moments we judge to be rash. But in the present case no such emergency or necessity for hasty action confronted the plaintiff. She had ample opportunity to deliberate as to the precautionary measures which she should take for her own safety; and if she had taken advantage of the means convenient at hand the accident probably would not have befallen her.

But it has been earnestly argued before us by able counsel that the plaintiff was not guilty of contributory negligence in acting as she did, because she had a right to assume that the railway company had complied with its duty of providing a reasonably safe egress from its premises, and therefore a right to assume that she could use the premises in the exact condition in which she found them, — that is to say, without any lights whatever. The answer to this is that the plaintiff did not show that she was using the usual or ordinary exit; nor did she show that there was not a perfectly safe means of egress provided which she could have used if she had only inquired for it or looked for it.

It is to be noted also that the case at bar is distinguishable from that line of cases which hold that it is not contributory negligence for a person to omit to guard against those dangers which, under the circumstances, he had no reason to suspect. Thiis, a customer'invited into a store has a right to assume that the floor is free from pitfalls and open hatchways in the ordinary passages, and is not guilty of contributory negligence in failing to look for them, even though he would probably have discovered them if he liad looked. Dush v. Fitzhugh, 2 Lea, 307. But in such a case, if he had actual knowledge or reasonable ground to suspect that the floor contained pitfalls, or if he undertook passage in the dark or in an unusual manner, he would no longer have a right to act upon such an assumption. In this ease, the plaintiff had reasonable ground to suspect the very thing which befell her. She ought to have known that a natural and probable consequence of her conduct in going out upon such a platform at such a time would be that she might walk off the edge. This being true, it is absurd to say that she could assume that no harm would befall her in so doing.

The exhaustive brief of counsel for the plaintiff undoubtedly cites respectable authority which tends to a result contrary to the one we have reached. The cases of Ala. Great So. Ry. Co. v. Arnold, 80 Ala. 600 (2 So. 337), and Mo. Pac. Ry. Co. v. Neiswanger, 41 Nan. 621 (21 Pac. 582, 13 Am. St. Rep. 304), are somewhat similar in their facts to the case at bar, and it was there held that the question of contributory negligence was for the jury. If we deemed it necessary, we might be able to distinguish those cases from the present case, on the ground that the evidence there was conflicting and involved, whereas here it is undisputed and brief; but we are content to rest our disapproval of them on the criticism of the United States Circuit Court of Appeals for the eighth circuit in the case of M. K. & T. R. Co. v. Turley, 85 Fed. 369 (29 C. C. A. 196). In speaking of the Neiswanger ease, that learned court says: “The exoneration from contributory negligence in that case was extreme, and ought not to be extended, lest its application should lead to the practical establishment of the doctrine that a railroad company is to be treated as an absolute insurer of the safety of passengers waiting about its platform, however eccentric and thoughtless in their strolling movements. We prefer the better sustained rule recognized in Forsyth v. Railroad Co., 103 Mass. 570; Reed v. Railroad Co., 84 Va. 231 (4 S. E. 587); Bennett v. Railway Co., 57 Conn. 422 (18 Atl. 668); Railway Co. v. Hodges (Tex. Civ. App.), 24 S. W. 563; Chewning v. Railway Co. (Ala.), 14 So. 204. These cases support the rule that, although the railway company may be guilty of some negligence in not providing sufficient lights or railing about its platform, yet when these deficiencies are known or are obvious to the passenger, and notwithstanding he sees fit voluntarily, without invitation from the company, and for his mere convenience, to undertake to pass over the edge of the platform, without knowledge of its elevation, the law will not excuse his negligence.” Mo. K. & T. Ry. Co. v. Turley, 85 Fed. 369 (29 C. C. A. 196). We are certain that the latter cases are more nearly on all fours with the common-law principle which has been adhered to from time immemorial, except where changed by statute, and which the plaintiff has herself invoked. This principle rests upon the reason, satisfactory to the common law, that every person must take ordinary care of himself under all circumstances or else suffer the consequences. Beach on Contributory Negligence (3d ed.), §§10, 11; Butterfield v. Forrester, 11 East, 60. There was no error in awarding a nonsuit. Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1018.
    CROCKETT & COMPANY v. GARRARD & COMPANY et al.

    1. If more than one plea is filed to an action, the court should, upon a timely request from the plaintiff, cause the jury, in case they find for the defendant, to specify upon which one or more of the pleas the verdict is rendered.
    (a) Such a request is timely if made before the verdict has been recorde'3. and the jury has dispersed.
    v(6) In determining whether the defense presented consists of several pleas or of only a single plea, the court will look to its substance, and not merely to its form.
    .2. Where the defendant, in compliance with the Neel act (Civil Code, § 4961), which requires him to admit or deny the paragraphs of the petition, categorically denies each paragraph, the separate denials will be regarded as distinct pleas only when the particular allegations denied •are such that a simple denial thereof contains all the elements essential to a complete plea on the subject.
    {a) A denial of a paragraph of the petition, alleging that the defendant i resides within the county in which the suit is brought, is not equivalent to a plea to the jurisdiction, puts the plaintiff to proof of nothing, and is'therefore not to be considered a distinct defense.
    (h) If the basis of the action is a written contract alleged to have been executed by the defendant, the plaintiff need not prove the writing, unless the defendant files a formal plea of non est factum under oath; hence a simple denial of a paragraph in which the execution of. the instrument is alleged presents no distinct defense.
    (c) If a breach of contract constitutes the cause of action, a denial of the paragraphs in which the breach and damages are alleged constitutes a distinct defense, being equivalent to a plea of the general issue.

      {d) If tlie defendants are sued as partners under a firm name, tlie plaintiff need not prove the partnership alleged, unless it is denied either by a plea in abatement, in which a misjoinder of defendants is asserted by reason of the fact that certain persons are included as partners, who are not so, or by a plea in bar filed by one of the individuals, alleging that he is not a member of the partnership and not liable as such. A simple denial of a paragraph alleging that the defendant is a partnership composed of certain persons is not equivalent to a plea of no partnership, whether considered as a jilea in abatement or in bar.
    (e) If the defendant files and retains in his pleadings two distinct pleas, the plaintiff is entitled to demand that the jury specify on which of them a verdict is rendered, although the proof may wholly fail to support one of them.
    3. Where the plaintiff sues upon a written contract executed in a firm name, and alleges that the individual defendants named constitute the partnership, and the defendant does not file a plea of no partnership, but merely denies the paragraph of the petition in which the composition of the partnership is asserted, it is error for the court to instruct the jury that if they find that the plaintiff has failed to sustain this allegation by proof, they should consider the ease no further, but should return a verdict for the defendant.
    xYdion on contract, from city court of Dublin — Judge Burch. January 22, 1908.
    Argued April 21,
    Decided May 18, 1908.
    Crockett & Co. brought suit against B. A, Garrard & Co. and William Bales. In the petition it was alleged that B. A. Garrard & Co. was a partnership composed of B. A. Garrard and the Sam Weichselbaum Company, which was a partnership composed of Sam Weichselbaum, N. B. Baum, and L. P. Baum. It was also alleged that William Bales did business under the trading name of William Bales Company. The prayer for process, the process, and the service made all these defendants as well as the alleged partnerships parties defendant. The action was for a breach of a written contract signed “B. A. Garrard & Co., per B. A. Garrard; William Bales Co., per William Bales.” To the petition the defendant filed only an unsworn answer, in which the allegations of the petition except as to the residence of the parties were denied; and it was set up additionally that all indebtedness on account of breaches of the contract had been paid to the plaintiff. Upon the trial, evidence was offered by the plaintiff, tending to show, but not legally sufficient to prove, that Sam Weichselbaum Company and the individuals composing it were members of the firm of B. A. Garrard & Co.; the defendant proved that B. A. Garrard alone was interested at the date of making the contract, and that the alleged partnership did not exist. No formal plea of no-partnership was filed. .The court charged the jury, among other things: “If you should determine from the evidence in this case that there was no such partnership as the firm of B. A. Garrard. & Co., a firm composed of B. A. Garrard and the Sam Weichselbaum Company, which was composed of Sam Weichselbaum, N. B. Baum, and Leo P. B'aum, and William Bales Company trading as William Bales, — if you should determine that there was no such partnership as that asserted and declared by the plaintiffs, then I charge you that you should cease your investigations and return a verdict for the defendants.” To this an exception is taken. The jury came into court with a general verdict for the defendants. Counsel for the plaintiff moved the court to cause the jury to retire again and to frame their verdict so as to show on which of the pleas of the defendant it was found. The court refused the-motion and received the verdict. To this also exception is taken. Other facts necessary to the understanding of the points decided are to be stated in the course of the opinion.

      Ira S. Chappell, 2?. M. & Q. F. Mitchell, for plaintiffs.

      Daley & Bussey, Peyton L. Wade, for defendants.
   Powell, J.

(After stating the foregoing facts.)

We have an express provision in this State that, “If there are several pleas filed by the defendant, a verdict for the defendant must show upon which of the pleas the verdict is rendered.” Civil Code, §5330. The plaintiff may invoke this requirement any time before verdict has been finally received and the jury has dispersed. Continental Bank v. Folsom, 67 Ga. 625; Williams v. Gunnells, 66 Ga. 521; Rabun v. Rabun, 61 Ga. 652. The request in the case at bar was timely and should have been granted, if the cause was one in which the rule is applicable. By its terms the rule is applicable only when there is more than one plea filed; and this is determined not by the particular form in which the defense is presented, but by the substance of it. For instance, where the defendant files a defense which, from the diverse form in which it is stated, apparently presents several separate pleas, but in fact consists of only one, the rule is not applicable. Ventress v. Rosser, 73 Ga. 534. Note also the query of Chief Justice Bleckley in Jones v. Grantham, 80 Ga. 472 (7), 479 (5 S. E. 764). Contra-wise the defendant may in one paragraph or in one sentence assert several distinct pleas; and in such ease the plaintiff has the right to invoke the rule.

Looking to the defense presented in this case, we find that the defendants denied the paragraph in which the membership of the partnership was asserted, also the paragraph in which the making of the contract was alleged; also the paragraph setting up the breaches; and additionally set up that all breaches which had occurred had been settled by the payment of a definite sum of money. The plaintiff says this amounted to several pleas; the defendant says it is but a sole defense.

Under the Neel act (now Civil Code, §4961), the plaintiff in his petition must set forth the cause of action in orderly and distinct paragraphs, consecutively numbered; the defendant in his answer must admit or deny (or excuse a failure to deny, by an asserted lack of information) each and every paragraph of the petition. Whether a categorical denial of the respective paragraphs of a petition containing a number of distinct allegations is to be given the same effect as the filing of a number of separate pleas under the old system of pleading, depends upon the facts in each particular case. Eemembering that it was not the intention of the Neel act to diminish the degree of certainty with which the defendant was already required to assert his defenses, we shall soon see that the categorical denial of an allegation in the petition frequently can be given no effect at all as a defense.

We will exemplify this proposition by the very answer of the defendants now before us. Suppose that instead of admitting, as they did, the basic fact of the venue, — namely, that one of the defendants resided in the county in which the suit was filed,— they had simply denied the paragraph of the petition in which this fact was asserted. This would not have been sufficient as a plea to the jurisdiction; such pleas are to be stated with formality, and require allegations additional to a mere denial of the defendant’s residence within the venue. The denial of the allegation as to residence would therefore neither put the plaintiff to proof of the fact, nor entitle the defendants to disprove it; it could not be given effect at all; and certainly would not constitute a separate plea in the sense of the Civil Code, §5330. Upon looking further at the answer before us, we find a denial of that paragraph of the petition in which the execution of the written contract is alleged. Is this to operate as a plea of non est factum? If not, the plaintiff is not called upon to prove the execution of the paper. Strange v. Barrow, 65 Ga. 23. See also Barwick v. Kea, 85 Ga. 564 (11 S. E. 871); Lowe Cracker Co. v. Ginn, 94 Ga. 408 (20 S. E. 106); Matthews v. Bates, 93 Ga. 319 (20 S. E. 320). A plea of non ést factum must he under oath, and must aver not only that the alleged maker did not sign the instrument, hut that it is not his act or deed. Civil Code, §3701; Wingate v. Atlanta National Bank, 95 Ga. 1 (4), (22 S. E. 37). The denial under consideration is of no defensive value, in the form in which it is stated, and therefore does not constitute a distinct plea.’ The denial of the paragraphs in which the breaches of the contract are set forth has the same effect that a plea of the general issue would have had under the old practice. This plea is not required to be verified, or to be stated with any particular formality. This denial therefore constitutes a distinct and separate plea, and is to be given effect as such in the trial of the case and in the application of the Civil Code, §5330.

The only other denial now requiring attention relates to the paragraph in which the membership of the partnership is alleged. To this denial the trial judge gave so great effect that he charged the jury that if the plaintiff had not proved this paragraph of the petition just as he had -alleged it, — if he had not shown that the partnership was composed of the persons whose names were set out as constituting it, — the jury should investigate the case no further, but should return a verdict for the defendants. The Civil Code, §2637, provides: “Parties suing or being sued in their firm name, the partnership need not be proved unless denied by the -defendant, upon oath, on plea in abatement filed." For this code section and its peculiar language, the act of 1841 (Cobb’s Digest, 590) is in part responsible. In the preamble to that act it is recited, that many of the judges of the superior court (the Supreme Court had not then been established) had been holding that in cases sued in the name of joint traders or copartners, a recovery could not be had, unless the plaintiff proved such a copartnership existed; it was therefore enacted, that “it shall not be deemed or held necessary, in any of the courts of law or equity of this State, for a firm of joint traders or copartners in any business, trade or profession, who are or hereafter may be plaintiff, in any cause pending in either of said courts, to prove their copartnership: provided, nevertheless, that nothing contained in this act shall prevent said courts, or any of them, from requiring such proof in any case where the defendant or defendants shall, regularly, by plea in abatement, deny the existence of such firm or copartnership,, as may be set forth by the plaintiffs in their bill, petition, declaration or writ.”

Soon after the section above quoted was inserted into the code in substantially the same language in which it now stands, the expression “on plea in abatement filed” met with criticism from the Supreme Court, in the case of Long v. McDonald, 39 Gad 187. In the third headnote in that case the following language is used: “A plea denying the existence of a partnership is a plea in bar, and, although sworn to, is not a dilatory plea which is required to be filed at the first term of the court;” and this language is quoted approvingly and applied in the case of Solomon v. Creech, 82 Ga. 445 (9 S. E. 165). It is with much hesitancy that we criticise a statement emanating from authority so high and so ancient of recognition as the two benches by which these decisions were pronouncfed, but we are convinced that the language just quoted from the headnote in the Long case and reasserted in the Solomon case evinces a misconception of the scope and object of the code section under consideration. The Ijong case and the Solomon case were both suits against several persons as members of a designated partnership; in neither of the cases was it denied that a partnership of the alleged name and style existed; nor did those of the defendants who made no denial of their connection with the firm file any plea setting up the misjoinder of the others with them, but in each of the cases named one of the defendants alone set up that he was not a member of the firm and was therefore not liable to the plaintiff whose action was based on a debt against the partnership. Manifestly such a plea is not. a plea in abatement, is not in any wise a dilatory plea, but is essentially a plea in bar. The criticism we are now about to make is not that the actual principle applied in these cases is incorrect, but that the court in each case was mistaken in supposing that the-code section in question had reference to such a plea as was there filed. .It refers to a case where a suit is instituted by or against persons suing or being sued under a firm name, and tbe defendants denjr that the partnership exists as alleged, or (to change the statement from the negative to the affirmative form) assert that the parties plaintiff or defendant, as the ease may be, have been improperly joined in the action, for the reason that no such relation exists between them that they may sue or be sued in the form in which the suit is proceeding; and this is simply a plea of misjoinder, a mere dilatory plea, which leaves out of issue all question as to whether, on its merits, the action is well founded, and concedes for the sake of argument, so to speak, that some of the plaintiffs (if the misjoinder be asserted of that side of the case) may be entitled to recover, or that some of the defendants (if the misjoinder be asserted of that side of the case) may be liable to the plaintiff; and this, as the code asserts, is purely a plea in abatement, which should be filed at first term and under oath. Civil Code, §5058; Merritt v. Bagwell, 70 Ga. 579, 585; Macon R. Co. v. Davies, 27 Ga. 113, 117. We return now to the more immediate consideration of the question whether the denial' by the defendant of the paragraph of the petition in which it is asserted that the partnership sued was composed of certain persons amounted to any defense, or to such a defense as to be equivalent to a separate and distinct plea. It certainly does not amount to a plea of the character of those under review in the Long case (39 Ga. 187) and in the Solomon case (82 Ga. 445), for none., of the individual defendants asserts his lack of connection with the firm or with the contract sued on. Whether in a suit upon open account or in other similar action it would be necessary for such a plea in bar to be sworn to is not now involved in the matter before us; for the present action being based on a written contract, such a plea would be as to the defendant filing it an individual plea of non est factum. Lowe Cracker Co. v. Ginn, supra; Barwick v. Kea, supra; Holman v. Carhart, 25 Ga. 608, wherein the case of Collier v. Cross, 20 Ga. 1 (by two Judges only), is criticised and explained. It is equally impossible to consider the denial now under discussion as a strict plea of no partnership, that plea of misjoinder which Civil Code, §2637, has in contemplation; for such pleas must not only be sworn to, but must plead the alleged cause of abatement with the greatest strictness. Andrews’ Stephen’s Pleading, §71, and note; 1 Chitty PI. 445. This denial therefore constituted no defense, no separate plea!

Upon examining the defendants’ answer throughout, we find, therefore, that so far as it merely denied the allegations of the plaintiffs petition, only one distinct available plea was set up,— the equivalent of the old plea of general issue; and if the answer had ended here, section 5330 of the Civil Code, which requires the jury to specify upon which of several pleas the verdict is rendered, would not be applicable. However, the defendants added n plea of payment, good in form, and substance. It is true that they failed to establish this'plea by proof; indeed, after examining the evidence on this subject, we are satisfied that the defendants never really intended to plead a payment to the cause of action sued on; but the plea as written is capable of no other fair construction. The failure of the defendant to prove this plea affords no justification for the court’s refusal to require the jury to specify whether their verdict was founded upon this plea or the other; indeed it makes the requirement only the more important; for if the jury had reported that their verdict was based on this plea, the plaintiff could have easily shown that it was unsupported by evidence.

In discussing the error assigned upon the court’s refusal to require a specific verdict, we have incidentally shown that the other exception of the plaintiff in error is well taken; for, as stated above, the action being based on a written contract, and, no plea of no partnership (whether we use this expression as” referring to the plea in abatement or to the plea in bar) having been filed, the plaintiff was not required to prove the allegation; and it was manifest error for the court to instruct the jury that if the plaintiff failed to prove this they should make no further investigation into the case, but should render a verdict for the defendants!

As the case is to go back for another trial, we should perhaps add that it is now too late, for the defendants to file a plea in abatement; but any. of the individuals sued may file under oath a plea of non est factum by amendment; if so, the sustaining of that plea would release only the particular defendant filing it, and the verdict should go against the others, if a liability is established.

Judgment reversed.


author: Russell, J.

text:
    1067.
    MEDLOCK v. WOOD.
    1. A joint obligor has the right to require contribution on the part of his co-principals, towards a payment required of him, but for which each obligor is equally liable. Consequently, an action upon a promissory-note, brought against two or more defendants as joint makers, can not, without the consent of all the parties, be tried piecemeal; and a showing for continuance which requires a postponement as to one of the joint obligors operates to continue the ease as a whole and as to all of the defendants.
    2. The answer of a defendant will resist a general demurrer or motion to strike, no matter how defective in some respects the answer may be, if it contains any matter of substantial right which the defendant can properly present by plea. A defendant may show that his admitted liability is only secondary.
    3. A notice served upon one joint obligor, to bind him for attorney’s fees, is ineffectual for the purpose, unless his co-obligors be likewise served.
    Complaint, from Gwinnett superior court — Judge Kimsey. March 7, 1907.
    Submitted May 5,
    Decided May 18, 1908.

      D. K. Johnston for plaintiff' in error.
   Russell, J.

The defendant in error brought suit upon two joint notes, against C. V. Smith and B. O. Medloek. Each of the notes was for $300, and provided for ten per cent, attorney’s fees, and was signed by C. V. Smith and B. O. Medloek. Upon the call of the case and upon a showing for continuance, the case was continued as to the defendant Smith. The court, however, refused to continue as to the defendant Medloek, and struck his pleas and directed a verdict against him for principal, interest, and attorney’s fees. He excepts to the refusal to continue his case, to the striking of his answer, and to the direction -of the verdict against him, as well as to the judgment entered upon the verdict. It appears that both of the defendants pleaded that Medloek was only a security. Smith so pleaded explicitly and amply.. The plea of Medloek upon that subject might be subject to special demurrer; though his answer is made “as security,” and described his codefendant as principal, and, therefore, would resist a general demurrer or motion to strike.

We think the court erred in overruling the plaintiff in error’s motion to continue the case. The continuance of the case as to Smith necessarily worked a continuance as to Medloek, and continued the whole case. Even if the defendants’ plea that Med-lock was only a security was not good, and if both signers were joint principals, it would be improper to render judgment against one in advance of the other; because such action would tend to defeat the equitable right of contribution, on the part of each of the makers, towards the payment of the judgment. Civil Code, §3991. But as Smith himself pleaded that Medlock was only security, and that he was the principal, and as Medlock also pleaded that he ivas security only, it might result-, (if Smith’s defense upon the trial were sustained) that the judgment rendered against Medlock would proceed against him, and yet he would be deprived of having any recourse whatever upon Smith to reimburse himself as security.

The case, therefore, if continued at all, should have been continued as a whole. Having necessarily been brought as a -joint action, it could not be tried by piecemeal, whether Medlock was a principal joint obligor or a surety only.

Our ruling upon the continuance necessarily disposes of the whole case; but as there must be another trial, we will proceed to pass upon the other exceptions. The plea of Medlock is not a good plea for the purpose of raising any issue upon the execution of the notes, or his indebtedness by reason of having signed the same. He simply denies that he owes the notes, and this general denial (as against an unconditional contract in Avriting, and in the absence of a plea of non est factum) amounts to no plea at all, so far as indebtedness is concerned. But although a defendant does not deny indebtedness, he has the right to show the court that his obligation is only secondary; and Ave think that Medlock’s plea (in which he states that Smith is the principal, after describing himself as security), taken in connection with his codefendant’s plea distinctly alleging that Medlock signed as security only, is sufficient (in the absence of a special demurrer) to present the question in the case as a Avhole, as to whether Medlock is a joint obligor or a surety only. Even though a plea may be defective, it should not be stricken on general demurrer, if it sets forth -as matter of defense anything which may be of advantage to a defendant, either by decreasing the amount or the character of his liability.

We think the court erred in directing a verdict for attorney’s fees, Whether the defendant Medlock is .a joint obligor or only a surety, lie can not be held liable for. attorney’s fees, under the allegations of the present petition. The plaintiff alleges that he gave written notice, as to the attorney’s'fees, to the defendant Medlock. The petition is silent as to notice to Med-lock’s eodefendant; Smith; and presumptively, therefore, no notice as to attorney’s fees was served upon Smith; nor is any reason shown why said notice was not given. Even if it should be found upon the trial hereafter that the defendants are joint obligors, notice to only one of the joint makers would be insufficient to entitle the plaintiff to a judgment for attorney’s fees; because it was the duty of the plaintiff to serve both, so that if only one of the defendants paid off the judgment he could call upon his codefendant thereafter for contribution. In the present case,- if Medlock should be required to pay attorney’s fees, he could not call upon Smith to contribute thereto, as he would have had a right to do if the plaintiff had likewise served notice upon Smith. And he would have been deprived,of the right of contribution by the act of the plaintiff. "Such apparent partiality can not be countenanced. If the defendants were joint makers, they must be equally liable in all respects. If either defendant is only security for the other, then it is well settled that the liability of the security can not be greater than that of his principal. Clements v. National Bank, ante, 279 (61 S. E. 146).

The court erred in continuing a part of an indivisible case without continuing all; and all that thereafter transpired was nugatory.

Judgment reversed.


text:
    1073.
    Williams v. Rome Railway & Light Company.
    Action for damages, from city court of Eloyd county — -Judge Hamilton. February 28, 1908.
    Argued May 5,
    Decided May 18, 1908.
    The -petition in substance alleges, that the defendant, a corpora-lion engaged in the transportation of passengers, has injured and damaged the plaintiff in the sum of $1,000, as will appear from the following allegations. On October 22, 1907, about 1:15 o’clock p. m., the plaintiff, accompanied by his wife, boarded the North Rome car of the defendant at the switch on Broad street in the city of Rome. As soon as they got into the car he told the conductor that he and his wife desired to go to their home in West Rome, and asked the conductor if he could catch the West Rome car, which was in front, and let him and his wife transfer to the said West Rome car; and the conductor told him that he could; whereupon he paid the fare of his wife and himself, and the conductor gave him and his wife a transfer to the West Rome car. By the time the West Rome car had reached Fifth avenue and was turning from the main line on Broad street into the line which leads to West Rome, the North Rome car had caught the West Rome car. At that time the motorman had holloaed to the conductor on the West Rome car and told him to wait and get some passengers; and immediately thereafter the plaintiff jumped off the North Rome ear and ran up to the conductor on the West Rome car and told him to wait until his wife had gotten off the North Rome car, so she and he could get on the West Rome car; but, notwithstanding this, the said conductor only looked at him and reached up and pulled the bell-cord, and signalled the conductor (?) to go ahead; and in response to the signal the car rapidly moved off and left the plaintiff and his wife. The said transfers .were good for the said West Rome car, and if the plaintiff- had ridden on another car he would have had to pay fares again. As u result of the car not waiting for the plaintiff and his wife, they were compelled to walk to their home, which is more than a mile from the place where the said car ran off and'left them; and if they had not walked they would hate been compelled again to pay their fares and also to wait twenty minutes on the street corner until the next car went to West Rome. The plaintiff was free from fault and negligence. “It was negligence in said company in failing to convey petitioner to West Rome as said conductor on •aid North Rome car had promised should be done, on petitioner •faying said fares; . . it was negligence in said conductor of said West Rome car in not waiting on petitioner; . . it was negligence in said company in not conveying petitioner to West Rome as said conductor of said North Rome car had agreed.” The defendant demurred on the following grounds: (1) The petition sets forth no cause of action. (2) The petition shows that if any injury has been sustained by the plaintiff’s wife, it was due to her voluntary act, and not to any act of negligence of the defendant. (3) The petition shows that by a wait of twenty minutes the plaintiffs wife could have boarded another car, and thus have avoided the walk from which she claims to have been injured. The demurrer was sustained, and the plaintiff excepted. See opinion in next case, infra.
   Russell, J.

It was error to dismiss the petition on general demurrer. However, the plaintiff, under his allegations, is entitled to nominal damages only. Glenn v. W. U. Tel. Co., 1 Ga. App. 831 (58 S. E. 83) ; Williamson v. Central Ry. Co., 127 Ga. 125 (56 S. E. 119) ; Lilly v. Boyd, 72 Ga. 83, (1) ; Kenny v. Collier, 79 Ga. 743 (8 S. E. 58).

Judgment reversed.

M. B. Eubanks, W. B. Mebane, for plaintiff,

cited Williamson v. Central Ry. Co., 127 Ga. 125 (1).

Dean & Dean, for defendant,

cited Civil Code, §3802, and the Williamson case, supra.


text:
    1074.
    WILLIAMS v. ROME RAILWAY & LIGHT CO.
    1. The decision in this case is controlled by that in Williams v. Rome Railway and Light Co., ante, 370, and by the ruling in Glewn v. W. XI. Tel. Co., 1 Ga. App. 831 (58 S. E. 83).
    2. A plaintiff who was wrongfully left by a street-car company upon a public street, in violation of a claimed right of transfer to a particular car, and who thereupon walked a considerable distance to her home, wherefrom she was made ill, can not recover damages on account of such illness, where it appears that another street-car, within a few minutes, would have been available for the purpose of the journey, and no reason appears why she should not have waited therefor or why she should have undertaken the walk. In such a case the illness and consequent suffering will be regarded as the result of her voluntary act, and not of the company’s wrong.
    Action for damages, from city court of Floyd county — Judge Hamilton. February 29, 1908.
    Argued May 5,
    Decided May 18, 1908.
    i¥. B. Eubanks, W. B. Mebane, for plaintiff.

      Dean & Dean, for defendant.
   Russell, J.

The plaintiff in error excepts to the dismissal of her petition, on general demurrer. As to the facts alleged, the case is practically identical with the case of Williams v. Rome Ry. and Light Co., ante; and as to the law, this plaintiff’s case (like her husband’s) is controlled by the decision of this court in Glenn v. W. U. Tel. Co., 1 Ga. App. 821 (3), 831 (58 S. E. 83). According to the allegations of the plaintiff, she got on the' North Nome Car, to ride to Fifth avenue and transfer there to the West Nome ear. Her fare was paid by her husband, on the strength of the conductor’s promise to overtake the West Nome ear and transfer them to it. When she reached the point where she was to be transferred, the conductor, of the West Nome car refused to allow them to transfer, by starting his car and leaving her. It is alleged, that the conductor of the West Nome car had full knowledge of the fact that the plaintiff desired to be transferred, and that the conductor of the North Nome car had agreed that she should be transferred. The petition alleges a violation of duty and a breach of contract.

We think the court erred in dismissing the petition upon general demurrer. It is true that the plaintiff can only recover nominal damages, but the breach of duty arising from the contract authorizes the recovery of such nominal damages as will carry the costs. Glenn v. W. U. Tel. Co., supra.

It was held in Williamson v. Central Ry. Co., 127 Ga. 125 (56 S. E. 119), that the conductor of a train is the alter ego of the carrier in making contracts for passage between points on his run, and that when he allows a person to pay a cash fare to any particular point, “a valid contract immediately arises between the carrier and such person, by virtue of which such person becomes entitled" to be transported as a passenger to the station of the company at the place to which fare is paid.” It has also been held that for a train to fail to stop and take on passengers at a regular stopping-place, when it should stop, gives a right of action. See Ga. R. Co. v. McCurdy, 45 Ga. 288 (12 Am. R. 577); Western R. Co. v. Young, 51 Ga. 489, 492; Nunn v. Ga. R. Co., 71 Ga. 710, 712 (51 Am. R. 284); Philadelphia R. Co. v. Derby, 55 U. S. 468 (14 L. ed. 502). Under the ruling in the Williamson case supra, we hold that the conductor on the North Eome car had the authority to make an agreement that would bind the company, not only as to transportation on his car, but also upon any other car of the defendant company. It is true that the particular language used in the body of the opinion in the Williamson case is that the conductor has power to engage to transport a passenger to any point "on his route.” From this language, it is very ably argued by counsel for the defendant in error that the conductor on one street-car would not have the right to make the contract of carriage beyond the route traversed by his car; in other words, that the conductor on the North Rome car would have a right to make a contract to carry a passenger to any point on Ms route, by which the company would be bound, but that the company would not be bound by a contract made by Mm for the transportation of a passenger over any other route maintained by the company, nor be liable for the breach of any contract made by him for carriage on a route other than that traversed by his own car. We think differently. If a street-car conductor has the right to make a contract for the transportation of a passenger at all, it is the contract of the company itself, and not of the individual who acts in its behalf. A corporation can only act through its agents, and if a street-car conductor is authorized to issue transfer's, and does issue them in pursuance of an agreement to convey the passenger to a particular point, the company is bound to honor the transfer and to fulfil the undertaking of its agent. As to a street-railway company whose conductors are authorized to issue transfers, all the lines of the company are within the right of such conductors. Corporations select their own agents, and if by the negligence of any of these agents there results a breach of the contract of carriage, and, resultant therefrom, a breach of duty, it is but just that the carrier (by whose servants the contract was both made and breached), rather than the passenger, should suffer if injury results. The mere breach of the contract which involves the performance of a public duty entitles the plaintiff in this ease to nominal damages. Civil Code, §3801; Lilly v. Boyd, 72 Ga. 83 (1); Kenny v. Collier, 79 Ga. 743 (8 S. E. 58); Barrett v. Verdery, 93 Ga. 530 (21 S. E. 64); National Exchange Bank v. Sibley, 71 Ga. 727 (4). In the last case cited, the Supreme Court held, “There may be damage without injury, where there has been no violation of any right of the party complaining, or no breach of duty to him, but where there has been a breach of duty or violation of right as to him, the doctrine of damnum absque injuria does not apply. In such cases, if no actual damage is shown, nominal damages may be recovered.” We deem it unnecessary to make further citations, for we have several times already ruled as we now hold.

Under the allegations of the plaintiff’s petition, her recovery must be restricted to nominal damages. For tlie reasons set forth in the second headnote, any injury she may have suffered must be regarded as the result of her voluntary act, and can not be attributed to the company’s wrong. Judgment reversed.


text:
    1077.
    SELMAN v. BARNETT.
    1. Damages are recoverable for a physical invasion of tlie right of a parent, or of one standing in loco parentis, to the possession of an infant child. It is error to dismiss a petition asking damages against one who has wilfully decoyed and carried away the child of another, where it is plainly alleged that the plaintiff is entitled to the custody, control, and society of the child as its parent, and has been deprived of each and all of these by the wrongful or criminal act of the defendant.
    2. The measure of damages, where exemplary or punitive damages, are recoverable, as prescribed by law, is to be fixed by the enlightened conscience of an impartial jury.
    Action for damages, from city court of Floyd county — Judge Hamilton. February 37, 1908.
    Argued May 5,
    Decided May 18, 1908.

      M. B. Bubanks, W B. Mebane, for plaintiff.

      Seaborn & Barry Wright, for defendant.
   Russell, J.

The point having been raised in this case that the pauper affidavit filed by the plaintiff in error is not properly entitled in the cause, we find, upon investigation, that while R. L. Selman is mentioned in the caption of the affidavit as the defendant in error, instead of R. L. Barnett, the number and the nature of the ease are fully stated in the title of the affidavit; and this entitles the affidavit sufficiently to leave no ground for doubt that it is applicable to this case and to no other. The test is, whether the affidavit is sufficiently entitled to be the basis of an indictment for perjury. We shall hold the pauper affidavit sufficient, although the name of the defendant in error is stated as R. L. Selman instead of R. L. Barnett, because the number, the term of the court, and the court itself are all mentioned in the pauper affidavit, and are identical with the rest of the record.

The exception presented by the bill of exceptions is the sustaining of a demurrer to an action brought by the plaintiff in error in the city court of Floyd county. It appears, from the material paragraphs of plaintiff’s petition, “that said R. L. Barnett has injured and damaged petitioner in the sum of $1,000, as will appear from the following paragraphs: . : That Eli Selman is a minor, eight years old; that the mother of said child was your petitioner’s daughter, her name being Rose Selman; that said Rose Selman died three years ago; that the father of said child is unknown; that since the death of said child’s mother said child has been in the. possession, custody, and control of petitioner; that petitioner has clothed and educated said child, loved and eared for it as much as if it had been her own; that since the death of the mother of said child, and now, the custody, possession, and control of said child belongs to your petitioner; that petitioner’s husband is dead. 4. That from said time when petitioner’s daughter died, up until the 26th day of August, 1907, said Eli Selman remained in the custody and control of petitioner as aforesaid, but that on said date said R. L. Barnett persuaded, decoyed, and enticed said child away from petitioner in the following manner: That petitioner was engaged in cooking for one White in the city of Rome, and on said date had sent said child to the shop of said White for the purpose of carrying the said White’s dinner; that while said child was in the discharge of his duties, said Barnett persuaded and decoyed said. child away, as aforesaid, and took and carried it in his wagon to his farm in Everett Springs district, said county, where said child is now. 5. Petitioner shows that for one week after said child was taken from her possession she did not know where he was; that she had all parts of Rome and surrounding country searched; that she did not know, nor could she tell what had become of said child; that because of said absence of said child petitioner was- greatly worried; she could not sleep at night; she continually worried through the day; she did not know but that said child had been killed by some one or drowned in the river, she could not tell. Finally, she gave up and ■was compelled to take her bed, where she is now confined; which has been occasioned by the absence of said child. 6. Said child was a great solace.and help to'petitioner. He was continually with petitioner, to do little duties and run.errands. Petitioner loved said child, but, because of said decoying and enticing away of said child by said defendant, petitioner has been deprived of this. Petitioner did not consent to the taking of said child by the said Barnett, and said act was against the will of petitioner. 7. Petitioner shows that the taking and carrjdng away of said child by said Barnett was illegal, wrong, and a crime, and entitled petitioner to punitive damages, for which she sues.” The defendant demurred, upon the ground that the petition set out no cause of action, nor any element or measure of damages, and further, that the petitioner shows no right of recovery in herself.

At last, but one question is really raised by the record. Has this plaintiff a right to recover damages ? For there can' be no question that, under the allegations of the petition, the defendant was guilty of a wrong. As we view the allegations of the petition, the plaintiff stood in loco parentis. She has the right to the custody and control of the child — which came naturally, peaceably, and exclusively into her possession from its mother — if not to the same degree and to the same extent as if it were her own, at least to such degree as to be entitled to protection against interference by a stranger who shows no higher right; She is entitled to its possession; and when the defendant unlawfully deprived her of that possession he was guilty of such a physical invasion of her rights as constitutes an actionable wrong. Therefore the general demurrer should not have been sustained.

Subsidiary to this question, the defendant insists that no measure of damages is set out in the petition. We hold that under the petition in the present case, the allegations upon that subject, contained in the 7th paragraph, are sufficient. The law presumes general damages from such a wrong, and the plaintiff says that she is entitled to punitive damages. Under our code these are measurable only by the enlightened conscience of an impartial jury. We think, therefore, that the measure of damages is sufficiently alleged to enable the jury to apply the rule of damages contained in §3907 of the Civil Code. The petition was sufficient to withstand a general demurrer. It sot forth the commission of a wrong, by which the defendant destroyed the rights of a person entitled to the possession and control of a child, whose custody and possession, as well as its service, she was entitled to enjoy. If it were the case of an actual mother and her child the kidnapping and concealment of her little one would cause untold pain and mental distress; and, no doubt, the same is true in some degree in the ease of this grandmother and her grandchild. In our opinion (as expressed in Glenn v. Western Union Tel. Co., 1 Ga. App. 821 (58 S. E. 83)), the law should iu all cases afford compensation in damages for such mental distress; but the ruling in Chapman v. W. U. Tel. Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183), forbids, as to cases of mere negligence. But in any event, the plaintiff is entitled to recover, for the physical invasion of her right of possession as a parent, nominal damages, if no more; and under the allegations of this petition, from which it appears that the violation as alleged is flagrant, the jury would have the right to punish the offender in exemplary damages. It is unnecessary to determine whether the plaintiff is entitled to recover the value of the child’s services, under the present petition, because the allegations are not definite enough upon that subject to .authorize recovery. If the petition were amended, and supported by proper proof, it might be that the plaintiff could recover for whatever the jury thought to be the value of the services of the child. The demurrer should have been overruled, and the plaintiff allowed, if she could, to prove the allegations of her petition, which entitled her to general damages.

Judgment reversed.


author: Hill, C. J.

text:
    1089.
    ROBERTS v. THE STATE.
    1. A juror should come to the consideration of a criminal case .unaffected by any previous j'udgment or opinion, as to any material fact in the issue to be tried, relating to the parties, the subj’ect-matter, or the credibility of the witnesses.
    2. Where the State relies upon the testimony of one .witness to prove the criminal act, and the credibility of this witness has been unsuccessfully attacked on the trial of two other persons for offenses similar to that charged against the defendant, this witness being the only witness to the criminal act in all three of the cases, and his credibility is to be attacked by the same testimony as in the former cases, the j'urors who tried and convicted the defendants in the two previous cases on the-testimony of the one witness are disqualified, and a timely challenge of the j’urors for cause should be sustained.
    Certiorari, from Baldwin superior court — Judge Lewis. February 30, 1908.
    Submitted April 21,
    Decided May 18, 1908.
    Eoberts was convicted in the county court on an indictment charging him with a violation of the local-option act, in that he did sell and barter, for valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors and intoxicating bitters, and other drinks which, if drunk to excess, will produce intoxication. On certiorari the superior court approved the verdict and judgment, and refused a new trial, and this judgment is assigned as error.
    On the call of the case for trial in the county court, the defendant challenged the competency of each of the jurors on the panel, for cause, and the court thereupon directed the clerk to propound to each juror the statutory questions prescribed in felony cases, and each of the jurors qualified. The attorney for the defendant then requested the court that he be allowed to propound other questions to the jurors, to test their competency, and offered to submit to the court on the question of the jurors’ competency the following facts: That the prosecution was instituted by J. W. Eoberts, a policeman in Milledgeville, and that he had as his assistant one Bennie Cooper, and that these two were the witnesses relied on by the State for conviction; that Cooper was the one to whom the State claimed the whisky was sold, and that he was the only witness to that fact; that he was paid $5 by the prosecuting policeman upon the delivery to him of the whisky which he was claimed to have bought illegally; that some twenty other cases for the same offense were made by the same parties, at the same term of the court, against various citizens of Milledgeville, in all of which the circumstances of the purchase were claimed by Cooper to be practically the same; that two of the cases had been tried by the jurors constituting the panel from which the jury was to be selected to try this defendant, and the trial in each case had resulted in a verdict of guilty; that in each ease Cooper was the only witness to the sale, and in each had been impeached by testimony introduced for the defendants, and that in the present case the defendant proposed to introduce similar testimony impeaching Cooper. Counsel for the defendant stated that he proposed to make this showing for the purpose of inquiring of the jurors whether they had already passed on the character of Cooper, whether they had already determined that he was worthy of belief, and whether they were unbiased in the matter of the impeaching evidence that would be offered. The court declined to hear the evidence, and refused to allow the questions, or any other questions, except those prescribed in the code, to be propounded to the jurors.

      Edward B. Hines, for plaintiff in error.

      Joseph E. Pottle, Carl Vinson, contra.
   Hill, C. J.

(After stating the facts.)

The challenge to the jurors was not to the array, hut to the polls, and should have been allowed. The challenge was directed to the competency of each individual juror, and the court should have heard the evidence which was offered by the defendant to test such competency. Trial by jury is valuable only when the jurors are absolutely impartial, and the constitution of this State gives to every person accused of an offense against the laws of the State the right to demand a trial by an impartial jury, if he makes his request properly and before the jury is sworn. When a challenge to the polls is thus made, it is the duty of the trial judge to put the juror upon his voir dire and ask him such questions as will test his fairness and impartiality. The questions to be asked must be determined in each case by the character of the challenge made "to the juror. The questions must be such as will in each case determine the juror’s competency. Where the defendant is on trial for a misdemeanor, the court may ask the statutory questions prescribed for use in the trial of felony cases, or such other questions as will test the juror’s impartiality. If the juror, when put on the voir dire, qualifies and becomes apparently competent, either the defendant or the State then has the right to put the individual juror upon the court as a trior, and to submit any proof that will tend to illustrate the question of qualification. Humphries v. State, 100 Ga. 260 (28 S. E. 25); Thompson v. State, 109 Ga. 272 (34 S. E. 579); Wells v. State, 102 Ga. 659 (29 S. E. 442).

In this case the jurors qualified when the statutory questions used in the trial of felony cases were propounded to them, but this fact manifestly did not test their impartiality. In answer to these questions each juror might qualify with entire truthfulness, and yet be an incompetent juror in the case, under the facts which the defendant offered to prove. If it was true that the only witness to the criminal act in the case against this defendant had been the only witness to the criminal act against two other parties convicted at the same term of the court, charged with similar offenses, and that the credibility of this one witness had been attacked in the two cases in which there were convictions, and that the panel of jurors from which the defendant was to select the jury to try his ease was composed of jurors who had tried the other two cases and who had believed this one witness notwithstanding the attack made upon him as to his credibility, and that the defendant in the present ease relied upon the same testimony relating to the credit of this witness, it would seem that the jurors who had believed the testimony of the witness notwithstanding the attack in the two other cases would not be entirely competent to try the defendant. The intent of the law is that the juror shall come to the consideration of the case unaffected by any previous judgment or opinion; and certainly a previous judgment or opinion as to the credibility’' of the one witness against the defendant, expressed by the verdicts in the other two cases, should disqualify the juror who had' expressed such judgment or had entertained such opinion. Whether this sole witness to the criminal act charged against the defendant was worthy of credit was vital to the defense of the accused. If the jurors believed this witness they would convict the accused; if they did not .believe him they would acquit. If they had believed him notwithstanding the attack made upon his credit in the two former cases, it is certainly reasonable to presume that they would also believe him when a similar attack was made upon his credit by the defendant in the present case. At least, the jury who had tried the other two cases would come to the consideration of the present-case entertaining an opinion that the sole witness against the defendant was -worthy of credit. The defendant would, therefore, have the burden of combating a preconceived judgment or opinion formed by the jurors as to a most material fact in the case. It is therefore clear to our minds that the court should have allowed, this showing to be made, and, if the facts were proved as established, should have sustained the defendant’s challenge to the polls, and should have given to him a panel of jurors entirely free from any preconceived opinion as to the credibility of the witness against him. The correctness of this view is so manifest, it seems to us, that citation of authority is hardly necessary to support it; but the principle here announced is strongly sustained by the Supreme Court in Bryan v. State, 124 Ga. 79 (52 S. E. 298), and in Thompson v. State, and Wells v. State, supra. See also Brown v. State, 57 Miss. 424. There is no merit in the other assignments of error. Judgment reversed,.


text:
    1091.
    ORR v. HARDIN.
    1. The act of December 17, 1901 (Acts 1901, p. 63), as amended by the act of Axxgust 7, 1903 (Acts 1903, p. 91), in relation to the hiring of the tenants, croppers, or farm laborers of another, is penal and drastic in its nature, and, being in derogation of the common law, is to be strictly construed.
    2. The plaintiff in an action brought under the statute above referred to must allege and px-ove, in order to authorize a recovery, that he had, with the alleged laborer, tenant, or cx-opper, a valid, ’ perfect contract, executed with the formality prescribed by the statute as amended. The plaintiff in this case having failed to show such a contract, the verdict for the defendant was demanded; and this result having been reached, errors alleged to have been committed in the progress of the trial are immaterial and can not work a reversal of the judgment.
    Action for damages, from city court of Washington — Judge Hardeman. March 9, 1908.
    Submitted May 6,
    Decided May 18, 1908.

      1. T. Irvin Jr., for plaintiff in error.

      William Wynne, F. H. 0alley, contra.
   Powell, J.

The act of December 17, 1901 (Acts 1901, p. 63), as amended by the act of August 7, 1903 (Acts 1903, p. 91), prescribing penalties against'any person who shall employ the tenant, cropper, or farm laborer of another, has been held by our Supreme Court to be “exceedingly drastic,” penal in its nature, and in derogation of the common law; and is to be strictly construed. Polk v. Thomason, 130 Ga. 542 (61 S. E. 123). Indeed, we can conceive of reasons why, if its constitutionality can be sustained at all, a very strict construction will be necessary, to uphold it against constitutional objections.

Under the statute above referred to, its provisions are applicable “when the relation of employer and employee, or landlord and tenant of agricultural lands, or of landowner and cropper, has been created by written contract, or by parol contract partly performed, made in the presence of one or more witnesses.” A plaintiff in a suit under this statute must therefore show, as an indispensable prerequisite to a recovery, a valid contract created with the formality prescribed. Polk v. Thomason, supra. In this case the only contract shown by the plaintiff was a writing in the following language: “December 4/5. Know all men by these presents that A. J. Orr and Jack Aeree do make and confirm the following contract, to wit: A. J. Orr agrees to furnish about 25 acres of land on the Lind place and the house that Jack Aeree now occupies; furnish mule, feed for mule, 1/2 planting seed, 1/2 part plows, hoes, stock, and Jack Aeree to furnish and feed all labor, 1/2 weeding hoes, and all crops are to be equally divided between us. A. J. Orr, Jack Aeree. _ [Witness] A. H. Wynne.” It will be seen that this contract does not specify the year in which the contract is to be performed, or any time when it is to begin or end; nor does it definitely describe the land as to which the relation of tenant and cropper is to arise. The reference to 25 acres of land on the Lind place, especially in the absence of a showing that the Lind place contained only that amount of land, is too indefinite to meet legal requirements as to certainty. A similar construction to this has been given, in a long line of decisions by this court and by the Supreme Court, to the statute approved August 15, 1903 (Georgia Laws 1903, p. 90), on a cognate subject. Both acts being penal in nature, rulings upon one seem to be especially applicable to the other. A contract such as the one set out above has been held to be insufficient as a basis of prosecution under the act last mentioned, in the. following cases, besides others: Glenn v. State, 123 Ga. 585 (51 S. E. 605); McCoy v. State, 124 Ga. 218 (52 S. E. 234); Presley v. State, 124 Ga. 446 (52 S. E. 750); Watson v. State, 124 Ga. 454 (52 S. E. 751); Mosely v. State, 2 Ga. App. 189 (58 S. E. 298). The deficiency pointed out being such as absolutely to prevent a recovery by the .plaintiff, the judgment rendered was demanded, and therefore any errors alleged to have been committed during the progress of the trial are immaterial. Judgment affirmed.


text:
    1094.
    Johnson v. Gleaton, Jones & Company.
   Powell, J.

“Where no motion for new trial is made, tlie evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto, and properly identified [or since the act of 1889 (Civil Code, §5529), contained in a brief approved by the trial judge and made a part of the record]. A rule to distribute money having been tried on an agreed statement of facts, and exceptions: been taken to the ruling thereon, the embodiment in the record of what purports to be a copy of the agreement, signed by counsel, is not sufficient.” Mann v. Archer, 69 Ga. 767. See also Partridge v. Hollingshead, 105 Ga. 282 (30 S. E. 787).

Writ of error dismissed.

Motion to dismiss the writ of error.

Submitted May 6,

Decided May 18, 1908.

L. W. Nelson, for plaintiff in error.

Woolen & Hofmayer, contra.


text:
    1116.
    BURCH v. THE STATE.
    1. An acquittal under an indictment for cattle stealing, in which, the animal alleged to have been stolen is improperly described, is a bar to a subsequent prosecution for the same larceny, unless the indictment under which the acquittal occurred was such that it was legally impossible to have investigated the transaction thereunder.

      (а) The sex of an animal is not a necessary allegation in an indictment for cattle stealing, and, when set forth, stands upon the same footing as any other descriptive attribute which might be alleged.
    (b) An acquittal under an indictment charging the larceny of a cow is a bar to a subsequent prosecution for the same larceny, in which the animal stolen is described as a steer.
    Indictment for larceny, from Dodge superior court — Judge Martin. March 17, 1908.
    Submitted May 5,
    Decided May 18, 1908.

      Charles W. Griffin, J. Hal Roberts, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Powell, J.

A plea of former jeopardy was filed by the defendant to an indictment charging him with simple larceny,— cattle stealing. The State traversed the plea, but the facts are practically undisputed. An indictment was returned charging that the defendant, on the 7th day of October, 1907, “a certain red cow with short horns and marked swallow fork and underbit in one ear and oversquare and underbit in the other, of the personal goods of one A. A. Harrell, executor of W. J. Harrell, deceased, of the value of twelve dollars, unlawfully, wrongfully, and fraudulently did take and carry away with intent to steal the same.” Upon this indictment a verdict of not guilty was rendered. At the same term of the court the defendant was again indicted, the charge being that on the 7th of October, 1907, he “a certain animal of the cattle species, being a male and commonly called a steer, being of red color and marked swallow fork, and underbit in one ear and oversquare and underbit in the other, of the personal goods of one A. A. Harrell, as executor of the will of W. J. Harrell, deceased, and of the value of eight dollars, unlawfully, wrongfully, and fraudulently did take and carry away, with intent to steal the same.” It seems, from the proof taken on the plea in abatement, that the verdict of not guilty under the first indictment came about by reason of the fact that the prosecutor, through inadvertence, in his testimony before the grand jury, described the animal stolen as a cow, when it was a steer. It was the intention of the prosecutor to indict for the same transaction, in both instances. The only animalwhich had been stolen from him was a steer, and he had not lost a cow of the description charged in the first indictment. The judge submitted the plea to the jury, but in substance instructed them that the first indictment, which was for stealing a cow, would not be a bar to the second indictment, which was for stealing a steer; and under this charge the jury found against the plea; and from his verdict the present writ of error arises.

In the case of Gully v. State, 116 Ga. 530 (42 S. E. 790), the Supreme Court, in holding that in this State, as to pleas of former jeopardy, what is known as the “same-transaction test” prevails, said: “If the evidence offered under the issue formed upon the special plea shows that no other transaction than that sought to be investigated under the second indictment could have properly been the subject of investigation under the first, then an acquittal under the first indictment would be a bar to a prosecution under the second, notwithstanding the fact that there could not have been a conviction under the first indictment for the reason that the proof offered in support of it failed to establish the allegations descriptive of the offense, ordinarily immaterial but which the pleader had made material by averment.” In support of this proposition the court cites and discusses the case of Buhler v. State, 64 Ga. 504, and similar cases, in which it is held that an acquittal under an indictment for stealing an animal improperly described will be a bar to a subsequent prosecution under an indictment in which the animal is properly described. In the course of the argument, Justice Cobb, who delivered the opinion on behalf of the court, said: “If it had appeared from the second indictment in the Buhler case that the animal alleged to have been stolen was and could not have been the same animal referred to in the first indictment, then of course no proceedings under the first indictment would have affected a prosecution under the second; that is, to take an extreme case, if it had appeared in the first indictment that Buhler was charged with having stolen a cow, and in the second indictment with stealing a bull, then no proceedings had under the first indictment would affect the right of the State to prosecute under the second; and this would be true notwithstanding it appeared from the evidence upon the issue formed upon the special plea setting up former acquittal that the draftsman of the indictment, by mistake, described the animal as a bull when it should have been described as a cow.” The example here given would seem to cover the case at bar with exactness, and to justify fully the instructions which the trial judge gave the jury; but, after carefully studying the whole opinion and the conclusions of law announced, we have become convinced that by some oversight the learned Justice, who so seldom was inaccurate, used an inapt illustration. He seems to have overlooked the fact that sex, whatever may be its importance in other relations, has no other function in an indictment for cattle stealing than to be a mere attribute of description, a physical mark of identification, just as weight, brand, color, and other accidentals. The sex of the animal is not a necessary allegation; the statute (Penal Code, §160) merely prescribes that “the indictment shall sufficiently describe the animal falling under the description of cattle . . so that it may be ascertained and identified by the owner.” An indictment for cattle stealing, describing the animal stolen as “one red Jersey calf, branded ‘D,’ being the calf dropped by John Doe’s red and white Jersey cow on January 1, 1908,” would beyond peradventure be sufficient, although it entirely omits any allegation, either express or implied, as to the sex of the calf. The example given by Justice Cobb assumes that the larceny of an animal which in fact was a bull could not be investigated under an indictment charging the larceny of a cow; but this is not necessarily the case; for the sex of the animal stolen may just as easily in theory, though not so frequently in actual practice, be a matter of dispute as the color, flesh marks, ear marks, brands, or any other descriptivo attribute. For example, the owner of a female calf who has seen it, but who, for lack of a critical examination, has formed a mistaken opinion as to its sex, might swear, if the calf was stolen, that it was a bull calf, while his stable boy, who had examined it closer, might testify that it was a heifer; and although the solicitor-general, in drawing the indictment, had used sex as a descriptive term and had alleged that it was a bull calf, the larceny might be investigated under the indictment as drawn; and if the jury should believe the mistaken owner instead of the better-informed stable boj'-, and should convict the defendant, the conviction could be upheld. Of course, as the animal grows older and the marks of sex become more clearly distinguishable, such a conflict in the testimony becomes less likely to occur; still the mind can conceive of a case in which a dispute might arise in the testimony as to the sex of a full-grown animal. In this sense, the larceny of a bull may be investigated under an indictment charging the larceny of a cow; and it is manifest, from the whole tenor of the decision in the Gully case and the authorities there cited, that this is the criterion intended to be established by the court. The investigation in such cases, it is true, can not result in a conviction, unless there is false testimony, either through perjury or mistake; but this is true in every indictment, in any sort of a case, if the defendant in fact happens to be innocent. It will not do to lay down the rule that the defendant must be guilty as charged" in the first indictment, before a prosecution thereunder will be a bar to another.

In many States it is held that where the prosecution under the first indictment fails, by reason of a variance between the descriptive terms alleged and those proved, the trial under the first indictment is not a bar to a second; but as Justice Cobb pointed out in the Gully case, this is not the rule in Georgia. The established rule in this State is that if the larceny charged in the first indictment (though the subject-matter of the larceny be incorrectly described) is in fact the same transaction as that charged in the second indictment, an acquittal under the former will be a bar to a prosecution under the latter, unless it should appear that it was legally impossible for the larceny in question to have been investigated under the first indictment. The instructions given the jury were erroneous, and the verdict was improper. See also Moody v. State, 1 Ga. App. 774 (58 S. E. 262); Ingram v. State, 124 Ga. 448 (52 S. E. 759), and cases cited. Judgment reversed.


text:
    1117.
    WELCH v. THE STATE.
    One is not guilty of escape who effects his own deliverance from jail, when his confinement is no part of a sentence imposed by a court. Section 314 of the Penal Code is not applicable to one whose imprisonment is for the purpose of safe-keeping only.
    Accusation of escape, from city court of Griffin — Judge Hammond. March 18, 1908.
    Argued March 5,
    Decided May 18, 1908.

      Thomas W. Thurman, for plaintiff in error.

      William H. Bech, solicitor, contra.
   Russell, J.

The question presented by this writ of error is whether one who is confined in jail, not as a part of the enforcement of the sentence of a court, after conviction, but merely for safe-keeping, can be convicted of the offense of escape, under the provisions of §314 of the Penal Code. The plaintiff in error had been convicted of the offense of simple larceny and sentenced to work in the chain-gang, on the public works, for twelve months, with the alternative of paying a -fine of $50. In this previous case, after his motion for a new trial had been overruled, he sued .out a writ of error, assigning error upon the judgment refusing a new (rial, and the judgment of the lower court was "reversed by the Supreme Court. The fact, however, that the Supreme Court set aside the conviction is not material, especially as the plaintiff in error effected his escape while the writ of error was pending in the Supreme Court. The evidence in the present case is uncontradicted that plaintiff in error escaped from the jail of Spalding* county after he was .convicted of the offense of simple larceny. And it is also equally true that the confinement in jail was not included in the sentence, as a method of punishment. No supersedeas was applied for or granted after the certification of the bill of exceptions. It is plain, therefore, that while the defendant was legally confined in jail, this confinement was only for safejkeeping, and not as a part of the sentence of the court in the case of simple larceny.

Section 314 of the Penal Code, under which this plaintiff in error was convicted in the present case,'is as follows: “If any person shall be convicted of an offense below the grade of "felony, and shall escape from the chain-gang or other place of confinement or imprisonment for the violation of any municipal, county or State laws, and be thereafter retaken, he shall be guilty of a misdemeanor." Criminal statutes are to be strictly construed. The liberty of a citizen is not to be abridged by implication, nor is any statute, making an act a crime, to be extended beyond its express terms. The plaintiff in error was in jail for safe-keeping only, and not as a part of the sentence of the court; and, therefore, in escaping, he did not violate the terms of §314 of the Penal Code. If the trial judge, as he had a right to do, had sentenced the defendant to serve a term in jail, as one of the punishments to be inflicted, and there had been no supersedeas, and he had escaped, he would have been guilty; because that would have been a “place of confinement or imprisonment for the violation of . . State laws." Whether it should or should not be a violation of the law' for one who is confined in jail awaiting a trial, or held for safekeeping before entering upon his sentence, to escape from custody, is not before us. But certain it is that such is not the law. A prisoner has the right to secure his liberty, if he can, provided he commits no offense in doing so, up to the time that he is to serve his sentence, whether it be in the chain-gang or in jail. The reason of the rule is apparent from the present case. The defendant, no matter how long confined, would have been given no credit therefor on the sentence imposed by the court, if the judgment of the court had been affirmed by the Supreme Court. As he had taken out no supersedeas, however, if the court had sentenced him to be imprisoned or confined in jail, the time of such service, even though the judgment had been affirmed, would have been deducted from the sentence of confinement imposed by the court, just as if, had the judgment been affirmed and the defendant put to work in the chain-gang for lack of the supersedeas, the time that he might have worked in the chain-gang must necessarily have been credited as a part of the chain-gang sentence imposed by the court.'

It is probable that the defendant in the present case did not ask a supersedeas, and was confined in jail simply because he was unable to make bond; and this is generally trué in similar cases. When he secured his liberty he did not escape from the sentence of the court, because he had not been sentenced to be confined in jail. He simply gave “leg-bail," instead of more substantial recognizance. Judgment reversed.


text:
    1121.
    EDWARDS, alias BEE HIVE v. THE STATE.
    The judge did not abuse his discretion in refusing' to grant a new trial on account of the alleged newly discovered testimony.
    Indictment for robbery, from Gfynn superior court — Judge Littlejohn. March 7, 1908.
    Submitted May 5,
    Decided May 18, 1908.

      Francis H. Harris, for plaintiff in, error.

      John W. Bennett, solicitor-general, contra.
   Powell, J.

The defendant, who bears the unique alias, of “Bee Hive,” was indicted along with two other negroes, Lockett Walker and Red Henderson, for a robbery alleged to have been committed upon Lewis Clark. This defendant was severally tried and convicted; and his case is now in this court upon exceptions to the overruling of a motion for a new trial, based chiefly on the ground of newly discovered testimony. The testimony of the State established that the three defendants, together with two other unidentified negroes, “held up” the prosecutor and robbed him shortly before midnight of the Saturday immediately preceding last Christmas. The showing as to the newly discovered testimony begins with an affidavit by the defendant and his counsel, stating that they did not know of the new testimony “before the trial,” and that by the exercise of ordinary diligence they could not have discovered it. It may be noted that this affidavit does not show that the testimony did not become known to them pending the trial and at a time when it could have been made available; also that the affidavit states the mere conclusion that client and counsel used diligence to discover the testimony, without giving any of the particulars upon which the conclusion is based. The next affidavit presented is that of the joint defendant Lockett Walker, who testified on the trial that he never saw the defendant Bee Hive at all on the night of the robbery, and that he saw the prosecutor only for a moment early that evening when he waited on him as a customer in a barroom in which he was working. In this affidavit he swears, that he saw “Lewis Clark [the prosecutor], Red Henderson, and Bud Williams, gambling in a room of Bud Williams on Sunday morning, December 22, 1907; that Lewis Clark gambled away some of his money in the game.” Next an affidavit from Ella Carter is submitted. She says, that she saw Lewis Clark leave the room of Bud Williams on Sunday morning, December 22, 1907; and that there had been boisterous conduct in the room on the night before; that as soon as the present defendant was arrested, Bed Henderson and Bud Williams left town; they were afraid they would be arrested for gambling; she heard Bud Williams say so. Next John Carter makes oath that Bed Henderson wrote to him from Jacksonville, Florida, that he and Williams were gambling with the prosecutor on the night named. Mary Williams deposed to the effect that she had occasion to pass by the room of Bud Williams on the Sunday morning mentioned, that she saw money and cards on a table, and that she saw Bud Williams and a “short, light-skinned man resembling Lewis Clark” on the bed. Then comes a letter unsigned, but said to have been written by the joint defendant Bed Henderson. This document is valuable from a sociological as well as an evidentiary standpoint.. In addition to presenting a most perfect example of a negro’s way of thinking, it, of course, discloses the source of the suggestion out of which sprang the palpable fabrication which these negroes are now trying to put up in behalf of their confrere who has haplessly become ensnared in the toils of justice. “Amici probantur rebus adversis.” The letter is as follows: “Jacksonville, Fla. 1/24/08. Mrs. Jane My dear wife, yours of inst duly come to hand and found me well but still grieving about you. Jane what I want you to do is to see Lockett, and ask him what they have him up for, whether it is for gambling or robbing, tell him to explain himself because I want to come home and if I keep on freeting about you like I am I will come I don’t care what happens just so I see you now Jane when you go to see Lawyer Harris again find out what charge they have against me whether it is for gambling or robbing and if he says for robbing, tell him that we did not rob anybody, but we were gambling. Now, dont you pay Lawyer Harris any more money until you find out how Lockett come out, and if he ask you for any more why you tell him that you will give it to him in a few days, but be sure and not give it to him until you hear how Lockett come out and you may save that much. Now dear I know how I left you and I want you to remember which side of the bed I sleep on and if my pillow is laying-up and down the bed why let it sleep there until I come. Answer this letter at once because I am thinking of leaving here for times is dull, I haven’t made 3 whole days since 1 was here, it is no vessels or nothing here worth talking about, everything is on a loaf, from your dear husband, address 912 Iiickry St.”

Judgment affirmed.


text:
    1125.
    Miller v. State.
    Accusation of vagrancy, from city court of Ashbum — Judge Hawkins. April 4, 1908.
    Submitted May 5,
    Decided May 18, 1908.

      R. L. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Russell, J.

This case is controlled by the decision of this court in Jacobs v. State, 1 Ga. App. 519 (1), (57 S. E. 1063). A conviction for vagrancy is unauthorized where testimony that at certain times the defendant was seen not to work is opposed by positive and unimpeached testimony that he worked, especially where the evidence for the State wholly fails to show that he did not have visible means of support.

Judgment reversed.


text:
    1126.
    Rogers v. The State.
    Accusation of vagrancy, from city court of Ashbum — Judge Hawkins. April 4, 1908.
    Submitted May 5,
    Decided May 18, 1908.

      R. L. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Powell, J.

In order to convict a minor between the ages of sixteen and twenty-one years, of- the offense of vagrancy, under the act of August 7, 1903 (Georgia Laws 1903, p. 46), the State must allege and prove, in* addition to the usual allegations, that the minor’s parents were un-. able to support him, and that he was not in attendance upon an educational institution. Jacobs v. State, 1 Ga. App. 519 (57 S. E. 1063); Turner v. State, 2 Ga. App. 386 (58 S. E. 492) ; Collins v. State, 125 Ga. 15 (53 S. E. 809); Braswell v. State, 119 Ga. 72 (45 S. E. 963).

Judgment reversed.