author: Jenkins, P. J.

text:
    18531.
    Houser v. Mathews.
    Decided July 13, 1928.
   Jenkins, P. J.

This being a suit for damages on account of the breach of an alleged contract, the plaintiff is limited to his rights under the contract. He having alleged by his petition as amended that the fruit contracted to be delivered under the agreement was that maturing on his own farm and on the farm of his brothel’, he is limited in his right of action to the failure on the part of the defendant to take the fruit thus contracted for. There being no evidence that the agreement embraced the delivery of fruit then maturing on the farm owned jointly by the plaintiff and his brother, the principle of law that “evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant” (Napier v. Strong, 19 Ga. App. 401 (2), 91 S. E. 579), can not be given application. In the instant case the sale contemplated by the agreement was not for a definite quantity of peaches, but was for the crop grown on two described tracts of land, which it was estimated would produce the quantity of fruit which the plaintiff testified he sought to deliver. Under such an agreement, if the amount of fruit actually produced on the farms specified was less than the estimate, the defendant could not be required to accept fruit grown on other farms, nor, in such an event, could the plaintiff be required to deliver fruit grown on other premises up to the amount of the estimate. Under the undisputed facts disclosed by the record, an indeterminate portion of the fruit tendered by the plaintiff having been grown on premises other than those designated by the contract of purchase, the verdict in his behalf was unauthorized by the evidence, under the charge of the court (which is not excepted to), and must be set aside.

Judgment reversed.

Stephens and Bell, JJ., concur.

G. L. Shepard, for plaintiff in error.

Brown <# Brown, S. M. Mathews, contra.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18534.
    ROSE et al. v. LIVEOAK et al.

      Decided July 13, 1928.

      J. Mallory Hunt, for plaintiffs in error.

      Mundy & Wright, O. J. Googler, contra.
   Bell, J.

The facts of this case so far as they are material in this court are as follows: Mrs. Ida Liveoak, plaintiff in the court below, being the widow of W. F. Liveoak, an intestate, recovered a judgment for $1800 against the defendant O. Y. Rose, in his representative capacity as administrator of the estate of such intestate, and the defendant brought the case to this court upon the sole contention that the indebtedness was his personal liability instead of a liability against him as administrator.

The evidence shows that some time after the death of the plaintiff’s husband there was granted from his estate, to the plaintiff as his widow, a year’s support, which included, among other things, the following: “All household goods, furnishings, furniture, and personal effects and moneys arising from sale of goods or property of deceased after all indebtedness has been paid, also rents derived from said estate; including any residue or balance derived from the sale of the eighteen and one-half acres of land, more or less, belonging to estate of said W. F. Liveoak.” The tract of land referred to was thereafter sold by the administrator in the usual manner. Mrs. Liveoak was the highest bidder at this sale and the property was knocked off to her at $1800. However, she did not have funds with which to pay her bid in cash,'and in this situation the defendant delivered to her his administrator’s deed, without requiring payment at the time, in order that she might obtain'a loan upon the property from which to pay the purchase-price. The defendant personally aided the plaintiff to procure such loan, two loans in fact, and, the cheeks for these loans being made to the plaintiff, she indorsed and delivered them to the defendant, they being more than sufficient to pay the amount which the plaintiff had bid for the property, and the defendant applying the excess to the payment of certain personal debts of the plaintiff which are not here material.

Although the year’s support was granted upon the supposition that there were debts against the estate, and contemplated a sale of the land for the purpose of paying such debts, giving to the widow only such portion of the proceeds from such sale as might remain after the debts were paid, it turned out that there were no debts whatever against the estate, and thus that the year’s support was the only claim against the proceeds of such sale. The part of the year’s support in question was not in land and was not taken in land.

The defendant will not he heard to say that he did not sell the property as administrator, nor that in collecting the proceeds he did not act in that capacity. Gammage v. Perry, 29 Ga. App. 427 (2, 8, 9) (116 S. E. 126); Lufburrow v. Newton, 34 Ga. App. 325 (129 S. E. 439). The year’s support being in money, and presumably having been made the judgment of the court (provided this was necessary, — see Cowan v. Corbett, 68 Ga. 66; Civil Code (1910), § 4043), the widow could have enforced the same by execution against the defendant as administrator. Fulghum v. Fulghum, 111 Ga. 635 (36 S. E. 602, 37 S. E. 774). It was the duty of the plaintiff to pay the amount of her bid for the property, and when she finally did so, the fund was held by the administrator subject, first, to the payment of any debts against the estate, and, next, to the payment of the year’s support. There being no debts, the plaintiff as widow, on her claim of year’s support, was entitled to the whole amount. The defendant’s liability in this regard was not converted into a personal one merely because he granted the plaintiff indulgence in paying for the land, nor by any other fact appearing in the record.

As to the character of the year’s support involved in this case, see Hartley v. Smith, 152 Ga. 723 (111 S. E. 41); Maxwell v. Citizens Bank, 165 Ga. 125 (2) (139 S. E. 864); Jackson v. Lee, 161 Ga. 818 (131 S. E. 893).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    18535.
    Varn Turpentine & Cattle Co. v. Allen & Newton.
    Decided July 13, 1928.
   Jenkins, P. J.

1. The effect of a contract for an option to purchase land is to bind the owner of the property to hold it in the same state and condition in which it existed at the time the contract was made, so that he may be able to convey it in such condition if the optionee sees proper to call upon him so to do. Any unjustifiable injury to the property by the optionor during the life of the option, such as would prevent him from complying with such obligation, amounts to a breach of the option contract, and gives to the optionee a right of action for such damages as may be shown to have actually and legally flowed therefrom.

2. “A tort is a legal wrong committed upon the person or property, independent of contract;” which may arise from “the violation of some private obligation by which damage accrues to the individual.” Civil Code (1910), § 4403. While it has been held that the breach of an unexpressed but implied duty arising out of a contract gives the injured party the right of election as to his remedy, so that he may rely either upon his right under the contract or proceed for damages as in case of tort (Fain v. Wilkerson, 22 Ga. App. 193, 95 S. E. 752), still, in order for such a breach of an implied duty to give rise to a right of election on the part of the complainant, there must be a legal wrong committed upon the person or property of the complaining party.

3. An option to purchase land does not, before acceptance, vest in the holder of the option any interest, legal or equitable, in the land itself. 39 Cyc. 1237, G (1); 27 R. C. L. 334, 335. Nor, according to the weight of authority, does the interest of an optionee in the land, by fiction, date back from the granting of the option, in case the option is accepted and a contract of sale made. 23 A. L. R., 1217; Caldwell v. Frazier, 65 Kan. 24 (68 Pac. 1076). Accordingly, since the plaintiff in the instant case had no interest, legal or equitable, in the land at the time the timber was removed therefrom, it could not maintain an action for damages in trespass, but is relegated to such rights as it may have under the contracts for a breach of the obligations imposed thereby. The court did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Stephens and, Bell, JJ., concur.

Copeland & Dukes, for plaintiff.

Little & Dickerson, for defendants.


author: ' Jenkins, P. J.

text:
    18543.
    Shiver v. Young.
   ' Jenkins, P. J.

1. The description of land in a deed is not .too indefinite if, with the aid of extrinsic evidence which does not add to, enlarge, or in any way change the description, the land may be identified. Luttrell v. Whitehead, 121 Ga. 699 (49 S. E. 691); Crawford v. Verner, 122 Ga. 814 (50 S. E. 958); Callaway v. Beauchamp, 147 Ga. 17, 18 (92 S. E. 538); Blackwell v. Partridge, 156 Ga. 119, 129 (118 S. E. 739); Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 59 (92 S. E. 389). In upholding such an instrument, the doctrine which holds that to be certain which can be made certain will be given application; but in applying this rule it is necessary that the writing shall indicate within itself some method by which the range of extrinsic evidence offered in its aid can be limited; that is, the writing itself must afford the “hinge or hook” to hang the aid to, since if the written description is altogether general and. does not point the way for definition by extrinsic evidence, the use of such testimony would be to add to and enlarge the terms of the written description and not merely to clarify the same. Accordingly, where a timber lease conveys certain pine timber located on two described adjoining tracts of land known as the “home place” and the “Daily place” of the lessor, and also conveys certain poplar timber “which lies in the branch on the Daily place,” the lease is not so indefinite in its description as to render the poplar timber conveyed incapable of identification, although it is made to appear from the plaintiff’s testimony that there was in fact more than one branch on the “Daily place,” or at least two separate tributaries uniting to form one branch, since, assuming (but not deciding) that l,he branch, with its two confining tributaries, should not be taken and considered as “the branch,” the terms of the contract suggest a means by which the intention of the parties could be arrived at, “it being expressly understood and agreed that the party of the second part shall ■not, however, cut the timber from the head of the branch on the Daily place except during such time as there are no crops in the field surrounding said head,” and it appearing from the evidence that the only tributary surrounded by cultivated land was the one on which the disputed poplar timber was located.

Decided July 13, 1928.

2. Since the lease contract was ambiguous in the particular stated, it was not the duty of the court to cpnstrue it as a plain and unambiguous agreement, but to submit to the jury for determination the issue of fact made by the pleadings and the evidence as to the intention of the parties with reference to the particular body of poplar timber intended to be conveyed thereby. Nelson v. Spence, 129 Ga. 35 (7) (58 S. E. 697); Ludden & Bates v. Dairy & Farm Supply Co., 17 Ga. App. 581 (87 S. E. 823); Hardy v. General Motors Acceptance Corp., 38 Ga. App. 463 (144 S. E. 327).

3. Where, as in the instant case, the plaintiff sought to recover damages because of the alleged refusal of the defendant to deliver to him certain poplar timber which the plaintiff contended was conveyed by the lease agreement, and the defendant contended that there had been no refusal to deliver the timber actually sold, it was not error to charge the jury that the first question to be determined by them was the amount of the poplar timber sold under the agreement, since the whole controversy between the parties was as to whether the lease agreement conveyed a certain larger body of timber, as contended by the plaintiff, or a certain smaller body, as contended by the defendant. Especially is this true where it appears from the entire charge of the court that just previously to the charge complained of, the court had correctly and fully stated to the jury the contentions of the parties.

4. The evidence authorizes the verdict in favor of the plaintiff, and the trial judge having approved the same, it can not be here set aside. '

Judgment affirmed.

Stephens and Bell, JJ., concur.

Sam T. Harrell, for plaintiff in error. Branch & Snow, contra.


text:
    18548.
    Clark v. Prince.
   Jenkins, P. J.

1. The bill of exceptions contains a sufficient assignment of error upon tile order of the court overruling the claimant’s motion for a new trial. Accordingly, the motion to dismiss the writ of error is denied.

2 In the ground of the motion for a new trial which complains of the court’s rejection of the homestead schedule of the claimant the alleged error is set forth sufficiently to present that question for determination, since it is stated therein the evidence was offered by the claimant and illegally withheld from the jury, and there is attached to the ground, as an exhibit, a copy of the tendered schedule. Morgan County Bank v. Poullain, 157 Ga. 423 (4) (121 S. E. 813, 33 A. L. R. 592).

Decided July 13, 1928.

G. G. Bidgood, J. E. Burch, for plaintiff in error.

E. L. Stephens, T. E. Hightower, contra.

3. The schedule and record of what is known as a “pony” homestead are necessary to put the public on notice not only that an exemption has been claimed out of the class of property authorized by the statute, but also to identify the particular property set apart from such particular class. Harris v. Hull, 1 Ga. App. 425 (58 S. E. 124); Arnold v. Faulk, 19 Ga. App. 797 (92 S. E. 294); Collins v. Bank of Cobbtown, 31 Ga. App. 570 (121 S. E. 516). A schedule of property which purports to be an exemption, but which makes no effort to specify any particular property as exempt, and merely sets forth.the classes of property from which an exemption is authorized by the statute, is void. Kendall v. Parker, 146 Ga. 260 (91 S. E. 31). In the instant case the schedule does not purport merely to enumerate the classes of property authorized for exemption by the statute, but undertakes to identify and itemize particular pieces of property falling within such classes. In addition to enumerating in detail the various articles of household effects claimed for exemption, it is apparent from the schedule that the articles listed constitute the household property of the applicant as the head of the house. Such an itemized schedule was not void, but, upon being aided by parol proof that it constituted the household effects possessed and used by the applicant as head of the family at a named domicile, was sufficient to identify the particular property set apart as the homestead. Accordingly, the court erred' in rejecting the proffered homestead schedule.

4. Under the foregoing rulings, the claimant’s motion for a new trial should have been sustained; and it is not necessary to determine whether the assignment of error upon the action of the trial judge in directing a verdict is sufficient.

Judgment reversed.

Stephens and Bell,- JJ., eoneur.


text:
    18551.
    Pearce, executor, v. Smith, administratrix.
   Jenkins, P. J.

Where an administrator claims compensation for extraordinary services, the burden is upon him to show the nature, character, extent, and value of such services. Clements v. Fletcher, 161 Ga. 21 (3 b), 46 (129 S. E. 846). In the instant case, in which a verdict was rendered in favor of an administratrix by a jury in the superior court on appeal from the court of ordinary, certain of thg extraordinary services enumerated by the administratrix in her testimony, such as her efforts in resisting a caveat to her appointment as permanent administratrix (Fields v. Case, 137 Ga. 147 (2), 72 S. E. 899), and services in connection with collecting certain rents from real estate belonging to the decedent (Hoyt v. Ware, 156 Ga. 98, 118 S. E. 734), could not properly be considered by the jury in the exercise of its discretion, in determining what services recounted by her authorized the payment of extra compensation. With respect to the other extraordinary services mentioned, the evidence in each case altogether fails to show the value, and in some cases fails to show their extent and nature, and under the ruling in the Clements case, supra, the jury having had no evidence which could form the basis for a verdict in the amount rendered, the yerdict as rendered tinder the inadequate evidence submitted must be set aside, but without holding that the administratrix was without right to compensation for extraordinary services in the event that the nature, character, extent, and value of such services should be properly established.

Decided July 13, 1928.

Laiuson & Ware, for plaintiff in error. H. E. Coates, contra.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18554.
    FREY v. SESSIONS LOAN & TRUST CO.
    Decided July 13, 1928.

      J. E. Mozley, B. P. Frey, for plaintiff in error.

      Morris, Hawlcins <& Wallace, contra.
   Jenkins, P. J.

Sessions Loan & Trust Company sued Frey on a note, and he filed a plea setting up certain alleged payments. The plaintiff admitted two of the payments, and the jury were instructed to reduce the claim accordingly. The plaintiff denied a payment of $325 and another of $125, pleaded by the defendant. The only evidence admitted in support of the plea was with referenee to the alleged payment of $125, aud the plaintiffs secretary and treasurer testified that this payment was, with the defendant’s knowledge, credited upon another obligation owing by .the defendant. The charge of the court restricted the jury to a determination of the issue made by the testimony as to the payment of $125, and the jury found in favor of the plaintiff. The defendant excepted to the overruling of his motion for a new trial, and assigned error upon the rejection of a certain fi. fa., based upon another debt and tendered in evidence by the defendant for the purpose of showing that the disputed payment was not credited thereon. Exception is also taken to the charge of the court restricting the jury to a determination of the issue made by the evidence with referance to the $125 payment.

The ground of the motion for a new trial which complains of the rejection of the execution tendered by the defendant presents nothing for determination. The execution is not set out in full or in substance, nor is a copy attached as an exhibit, and it can not be determined from this ground of the motion or from the record when the execution was issued,' whether before or after the alleged payment, and consequently there is nothing to indicate whether the execution should or should not indicate the payments claimed by the defendant. Wynne v. State, 35 Ga. App. 666 (134 S. E. 181); Citizens Auto Co. v. State, 35 Ga. App. 166 (2) (132 S. E. 258); Clay v. Austell School District, 36 Ga. App. 354 (136 S. E. 540).

There being no evidence to indicate any payment by the defendant other than that of $125, the court did not err in restricting the jury to a determination of the issue made as to whether such payment had or had not been made.

The evidence authorized the verdict in favor of the plaintiff, and the court did not err in overruling the motion for a new trial. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18556.
    STATEN et al. v. GENERAL EXCHANGE INSURANCE CORPORATION OF NEW YORK.

      Decided July 13, 1928.

      M. G. Tarver, for plaintiffs.

      W. M. Sapp, W. E. Mann, for defendants.
   Bell, J.

B. J. Staten purchased and obtained possession of an automobile from Dalton Automobile and Machinery Company, paying only a part of the purchase-money in cash and executing to the seller a conditional-sale agreement by the terms of which the title was to remain in the seller until the balance of the purchase-money was paid in full. At the instance of some one, the General Exchange Insurance Corporation of New York issued a policy of insurance upon the automobile, in which the following persons were named as the insured: the dealer, the purchaser, and General Motors Acceptance Corporation, “as their interest may appear.” Among the perils insured against were “theft, robbery, or pilferage, excepting by any person or persons in the assured’s household or in the assured’s service or employment, whether the theft, robbery, or pilferage occur during the hours of such service or not, and excepting also the wrongful conversion, embezzlement, or secretion by a mortgagor or vendee in possession under mortgage, conditional sale or lease agreement, and excepting in any case, other than in the case of the theft of the entire automobile described herein, the theft, robbery, or pilferage of tools and repair equipment.”

The purchaser, Mr. Staten, claiming that the property was stolen from him and that the circumstances of the theft were such as to render the insurer liable, brought suit upon the policy for the alleged amount of the loss. In his petition as amended he alleged that the balance of the purchase-money amounted to $288.24, and that he brought the suit not only in his own name, but for the use of Dalton Automobile and Machinery Company and of General Motors Acceptance Corporation, as their interests might appear, the plaintiff not being informed “as to whether the lien aforesaid is the property of either of said corporations or of both of them,” but averring, “on information and belief, that it is the property of one or the other, and will take steps to have it produced under proper subpoena upon the trial of this case, so the rights of the respective parties to said contract of insurance may be ascertained.” The petition was demurred to generally and specially by the defendant insurer, and, while the demurrers were overruled, no exceptions were taken to that judgment.

The ease is here upon exceptions to a judgment of nonsuit.

One of the contentions of counsel for the defendant is in relation to the question of who is entitled to sue in a case of this sort. Whether, as an original proposition, all persons who were named in the policy as the insured and who had or appeared to have an interest therein should have been parties plaintiff in the action, and whether, if this were necessary, the requirement was met in this case, are questions which in our view of the case are not presented for decision at this time. If Staten alone had been named as the insured, it would seem that he, being the person in possession and the equitable owner, would have been entitled to sue solely in his own name, notwithstanding the title to the property may have been vested in another to secure the payment of the balance of the purchase-money. Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (49 S. E. 839); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603); Mack v. Augusla &c. Ry. Co., 28 Ga. App. 816 (113 S. E. 66); Fender v. Lee County, 31 Ga. App. 604 (121 S. E. 843); Allen v. Southern Ry. Co., 33 Ga. App. 209 (126 S. E. 722); Brown v. West, 35 Ga. App. 444 (2) (133 S. E. 304); Globe &c. Ins. Co. v. Jewell-Loudermilk Co., 36 Ga. App. 538 (8) (137 S. E. 286); Bugg v. Daley, 37 Ga. App. 645 (141 S. E. 323); and compare Louisville & Nashville R. Co. v. Dickson, 158 Ga. 303 (123 S. E. 12). Assuming that to be true, still the rule might perhaps be otherwise where, as here, the very contract of insurance purports to name not only the eonditional vendee but also oilier persons, to wit: the conditional vendor and tlie company which was to become the transferee and holder of the purchase-money papers, including the conditional-sale contract. See, in this connection, Field v. Martin, 49 Ga. 268; Riley v. Hicks, 81 Ga. 265 (7 S. E. 173); Thompson v. McDonald, 84 Ga. 5 (2) (10 S. E. 448); Chicago Cheese Co. v. Smith, 94 Ga. 663 (20 S. E. 106); Phillips v. Poole, 96 Ga. 515 (23 S. E. 504); Tolar v. Funderburke, 21 Ga. App. 436 (94 S. E. 592); Peeples v. Aultman, 25 Ga. App. 609 (2) (103 S. E. 808); Equitable Fire Ins. Co. v. Jefferson Standard Life Ins. Co., 26 Ga. App. 241 (105 S. E. 818); Civil Code (1910), § 5516.

Whatever may be the rule in either of these situations, the question of Staten’s right to sue as he did in this case was adjudicated in his favor by the judgment of the court below overruling the general demurrer to the petition, which adjudication, since the judgment is not excepted to, is binding as the law of the case. Bennett v. Simmons, 30 Ga. App. 529, 531 (118 S. E. 493), and cases cited. Besides, the question of whether the suit was brought by the proper parties plaintiff could hardly have been raised by motion for a nonsuit, and, if not, it is immaterial here. The allegations as to parties and their respective interests in the subject-matter were proved as laid, and, so far as these matters were concerned, nothing more was necessary to avoid a nonsuit. “Even though a petition may not set out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed defensive facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit.” Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654).

There was evidence to authorize the inference that the automobile was stolen as alleged in the petition. It is contended by counsel for the defendant in error that, under the provisions of the policy, it was necessary for the plaintiff to go further and show that the theft was not “by any person or persons in the assured’s household or in the assured’s service or employment.” We think not. The general purpose of the policy was to insure the property against theft, and upon this point a prima facie case was made out merely by proof that the ear was stolen, and the burden was then shifted to the defendant to bring the case within any exception of the policy by reason of which the defendant may have denied liability. Travelers Ins. Co. v. Wyness, 107 Ga. 584 (2) (34 S. E. 113); Empire Life Ins. Co. v. Johnson, 142 Ga. 330, 335 (82 S. E. 893, Ann. Cas. 1916 B, 267); Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (4) (77 S. E. 1072); Newsome v. Travelers Ins. Co., 19 Ga. App. 264 (91 S. E. 441); Scott v. Life &c. Ins. Co., 34 Ga. App. 479 (3) (129 S. E. 903); Western Assurance Co. v. Mohlman Co., 51 U. S. App. 577 (28 C. C. A. 157, 83 Fed. 811, 40 L. R. A. 561).

The plaintiff having made proof of all the material allegations of his petition, and no defense being disclosed by the evidence adduced, the court erred in granting a nonsuit.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    18566.
    HABERSHAM COUNTY v. CORNWALL.
    Decided July 13, 1928.

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

      McMillan & Erwin, contra.
   Bell, J.

C. Cornwall brought suit against Habersham county, and in his petition made the following case: During the year 1925 the defendant, “in grading and constructing a public road in said county, graded and constructed same through” a described strip of land belonging to plaintiff, containing 3.83 acres, more or less, and in doing so “dug up and destroyed 155 peach trees growing' thereon, which were of the value of $7 each, or a total value of $1085.” (There was a further allegation of damage, but that is not material to this statement.) On June-22, 1925, petitioner filed with the ordinary of the defendant county “a claim in writing for said damages, in terms of the law, payment of which said claim was refused by the said ordinary, who has charge of the county affairs.” The defendant demurred to the petition, both generally and specially. The demurrer was overruled and exceptions pendente lite were duly taken. The trial resulted in a verdict in favor of the plaintiff for $600 “on orchard.” The defendant’s motion for a new trial was overruled, and it excepted.

The petition did not fail to set forth a cause of action because of a failure to allege that the county did not have an easement on the land claimed to have been damaged, affording it the legal right to use the same. We think the petition set forth a cause of action under that provision of the constitution (Civil Code (1910), § 6388) which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651); Rheberg v. Grady County, 27 Ga. App. 578 (109 S. E. 542); Sheppard v. Georgia Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868). That the measure of damages may not have been properly stated was not ground for general demurrer. Mendel v. Converse, 30 Ga. App. 549 (9) (118 S. E. 586); Bank of Bullochville v. Riehle, 36 Ga. App. 470, 474 (137 S. E. 642). The allegation as to the way and manner in which the damage had been done was sufficiently specific.

If it was necessary at all to allege a compliance with section 910 of the Civil Code, which requires a presentation in writing to the governing authorities of towns and cities of any claim for damages, before bringing suit thereon against any such municipality (see Grooms v. Hawkinsville, 31 Ga. App. 424, 120 S. E. 807; Civil Code (1910), § 411), the allegations upon that subject were not open to demurrer merely because no copy of such claim was attached to the petition. The demurrer does not raise the question of the sufficiency of the demand made, but is based solely upon the ground that a copy was not annexed to the declaration. The demurrer was properly overruled. City Council of Augusta v. Marks, 124 Ga. 365 (5) (52 S. E. 539).

The foregoing will dispose of all questions raised by the demurrer, as construed in the brief of counsel for the plaintiff in error.

From the evidence upon the trial it appeared, without dispute, that .the road was graded and constructed solely by the State Highway Department, and that the county as such was in no wise a party to the transaction. But the plaintiff introduced in evidence a deed by which he had conveyed the strip of land to the State Highway Board for the purpose for which the land had been used. This deed had been procured by the ordinary of Habersham county, but neither he nor the county was a party thereto. In it was the following clause: “In the event of any landowner being recompensed for orchard, then the grantor shall receive compensation for as much orchard as is taken off.” It is upon the basis of this stipulation that the plaintiff claimed he was entitled to recover.

Whether he may recover thereon against the State Highway Department we do not undertake to say at this time. We do hold, however, that he acquired no rights against the county by reason of this or any other provision of the deed. The deed, having been recorded, was presumably accepted by the State Highway Board. Mays v. Fletcher, 137 Ga. 27 (2) (72 S. E. 408). Whether actually accepted by that party or not, there was nothing in it to bind the county. The recitations and provisions of a deed are binding only upon the parties thereto and those claiming under them. It cannot afford the basis of a cause of action against some other person. Cruger v. Tucker, 69 Ga. 557 (2); Dickey v. Grice, 110 Ga. 315 (35 S. E. 291); Campbell v. Sims, 161 Ga. 517 (2) (131 S. E. 483). But it is said by counsel for the defendant in error that it was the duty and liability of the county to furnish to the State Highway Department a right of way for the road. Park’s Code Supp. 1922, § 828 (uuu). Even so, this is a matter between the county and the State Highway Department.

Hnder the evidence adduced the county can not be held liable in this case under the statute which provides “that the State Highway Department shall defend all suits and be responsible for all damages awarded against any county under existing laws, and whenever the cause of action originates on highways jurisdiction over which shall have been assumed by said Highway Department under the terms of this act, and provided that any county sued shall voucher said highway department to defend such litigation” (Ga. L. 1919, p. 249, Park’s Code Supp. 1922, § 828 (ppp)). The plaintiff ly his evidence does not make a case of liability against the county “under existing laws,” but seeks to establish the liability by virtue of a contract to which the county was not a party. Furthermore, the law does not permit the county to be ambushed by alleging a case not requiring the vouching of the highway department and then by proving a case which might have required such action at the county’s hands. If the petition had not only alleged against the county a cause of action under the law as it existed at the passage of the act of 1919, but had shown also that the cause was one for which the State Highway Department should be liable since the passage of that act, then it would seem that the duty would have devolved upon the county to vouch the State Highway Department into court upon the county’s own initiative, without further action upon the part of the plaintiff. But certainly the plaintiff here did not allege any such case, saying nothing as to the liability of the State Highway Department, and if he has proved such, he did not prove the case as laid, and for that reason the verdict is contrary to the evidence and to law.

By the act of 1925 (Ga. L. 1925, p. 208, 211) it is provided that the State Highway Department may be sued. This provision may or may not be applicable to the plaintiff’s claim. Even if inapplicable, that, without more, would not entitle the plaintiff to proceed against the county where the county is not otherwise liable.

“As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.” Civil Code (1910), § 5516.

In no view of the evidence was the plaintiff entitled to recover. The court erred in refusing a new trial.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    18567.
    Bacon v. Hinesville Bank.
   Jenkins, P. J.

1. Where an execution is levied upon personalty, and the property is claimed by a third person, the execution, with the entry of the officer, and the claim, form the pleadings, and it is not necessary for the plaintiff, on the trial of the right of property, to introduce the execution in evidence. Civil Code (1910), § 5167; Nelson v. Brannon, 32 Ga. App. 455 (123 S. E. 735).

Decided July 13, 1928.

2. “In the trial of a claim case, declarations of the defendant in execution, made up to the time of the levy and while he was in possession, that he owned the property, levied on, ate admissible in evidence, if there is any evidence that he was in possession of the property at the time of the levy.” Smiley v. Padgett, 123 Ga. 39 (50 S. E. 927). Sucli declarations, if made after the levy or while the defendant in fl. fa. was not in possession of the property levied on, are not only not admissible, but have no probative value, even if admitted without objection. McSwain v. Estroff, 34 Ga. App. 183 (129 S. E. 16). In a case where the declarations by the defendant in fi. fa. in favor of his title are admitted without objection, but where the record is silent as to when such declarations were made, they will be taken to have probative value, since it is the general rule that “the admission of a party to the record is admissible in evidence when offered by the other side (Civil Code, § 5776, and it is an exception to such general rule which excludes declarations by defendants in fi. fa. in claim cases after the pendency of litigation (Civil Code, § 5776 (4)), and in the absence of any objection to the evidence of the kind indicated, it will not be presumed, as a matter of law, that the declarations were in fact made at a time such as would bring them within the exception to the general rule so as to render them inadmissible.

3. “Possession by the husband with the wife, in the family domicile, is presumably his possession, and possession is evidence of ownership.” Blount v. Dunlap, 34 Ga. App. 666 (3) (130 S. E. 693).

4. The evidence in the instant ease authorizes a verdict in favor of the plaintiff, finding the property subject, and a careful examination of the record discloses no error of law which would authorize a reversal of the judgment of the trial court overruling the claimant’s motion for a new trial. Judgment affirmed.

Stephens and Bell, JJ., concur.

John W. Sheppard; for plaintiff in error. Ben A. Way, contra.


author: Stephens, J.

text:
    18611.
    Chapman et al. v. Independent Laundry Company.
   Stephens, J.

1. Where two automobiles had been-damaged as’a result of having collided with each other at the intersection of two streets, and where, in a suit by the owner of one^of the automobiles against the owner of the other automobile to recover for the damage sustained by the plaintiff’s automobile, the defendant denied liability and filed a counterclaim against the plaintiff to recover for the damage sustained by the defendant’s automobile, it was not prejudicial either to the defendant’s defense or to the defendant’s counterclaim for damages to permit the plaintiff to prove that the defendant had, by an insurance company, been indemnified for the damage sustained by the defendant, and that the insurance company had been subrogated to the defendant’s right to a claim for the damages by an assignment from the defendant to the insurance company of the defendant’s claim. The defendant having transferred and assigned to the insurance company the defendant’s right of action for a tortious injury to its property, the defendant had no right to maintain the cross-action; and therefore no right in the defendant, as respected the cross-action, was violated by the court’s permitting the plaintiff to introduce evidence of the defendant’s assignment of his right of action to the insurance company. Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124); Lamon v. Perry, 33 Ga. App. 248 (125 S. E. 907).

Decided July 13, 1928.

A. E. 8. Weaver, for plaintiffs in error.

Turpin & Lane, contra.

2. The admission in evidence of the defendant’s assignment and transfer to the insurance company of the defendant’s right of action against the plaintiff for damage to the defendant’s automobile, caused from a collision between it and an automobile of the plaintiff, and of the fact that the insurance company had indemnified the defendant for such loss, can in no way be prejudicial to the defendant’s defense against the plaintiff’s suit to recover of the defendant for damage sustained by the plaintiff’s automobile as a result of the alleged negligent operation by the defendant cf the defendant’s automobile. Since the defendant was insured against damage to his own automobile, and was not indemnified for any loss sustained by virtue of a recovery by the plaintiff for damage sustained by the plaintiff’s automobile, the admission of evidence of such insurance could not prejudice the defendant’s case with the jury by making it appear that upon a recovery by the plaintiff the defendant would be indemnified by the insurance company. Decisions which hold that in a tort-action evidence that the defendant is indemnified by insurance is inadmissible, as being prejudicial to the defendant, are applicable only where the defendant is indemnified as against a recovery by the plaintiff for the damage sustained by the plaintiff, and are not applicable where the defendant holds insurance indemnifying him against damage to his own property, although he may have sustained it by virtue of the conduct of the plaintiff.

3. The allegation in the plaintiff’s petition that the driver of his automobile observed the approach of the defendant’s automobile before the former took precautionary measures to avoid a collision does not, as a matter of law, establish negligence on the part of the plaintiff’s driver.

4. In view of the answer of the judge of the municipal court to the petition for certiorari, the assignment of error, contained in the petition, that the court erred prejudicially t-o the defendant in charging the jury that the insurance company was the real defendant in the case, is not borne out by the record.

5. In view of the above rulings the verdict found against the defendant’s counterclaim and in favor of the plaintiff in the full amount sued for was authorized, and none of the alleged errors insisted upon by the plaintiff in certiorari are meritorious. The court did-not err in overruling the certiorari.

Judgment affirmed.

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


text:
    18514.
    Central of Georgia Railway Co. v. Cowart & Son.
    Decided July 27, 1928.

      Pollle & Hof may er, Howell Cobb, for plaintiff in error.

      A. L. Miller, contra.
   Stephens, J.

1. In a tort action brought in a justice’s court to recover for damage to personal property in an alleged amount, a plea therein-filed by the defendant, denying “liability to the plaintiff in any sum,” amounts to a denial of the amount of damage alleged by the plaintiff.

2. Testimony as to the market value of property being in the nature of opinion evidence, and its probative value being dependent on the character and intelligence of the witness and his opportunity of forming a correct judgment as to the value of the property, it is not conclusive upon the jury. Civil Code (1910), § 5875; Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880); Anderson v. Anderson, 27 Ga. App. 513 (4) (108 S. E. 907); Widincamp v. McCall, 25 Ga. App. 733 (104 S. E. 642). It follows that, upon the trial of the case upon appeal to the superior court under these pleadings which put the amount of damage in issue, where the only evidence as to the amount of damage to the property 'in controversy was as to an amount equal to the cost of the property to the plaintiff and the market value of the property, which was in an amount equal to the amount of damage-sued for, it was error for the judge in the charge to eliminate from the consideration of the jury any issue as to the amount of damage claimed by the plaintiff, and to instruct the jury, in the event they found for the plaintiff, to find in the full amount sued for.

Judgment reversed.

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


text:
    18549.
    McCook v. Parker.
   Stephens, J.

1. The failure of a seller of land to comply with an agreement made by him with the purchaser, as part of the contract of sale, to oust certain persons occupying the land with the knowledge of the-purchaser, does not amount to a failure of the consideration of a promissory note given to the seller by the purchaser for the purchase of the land.

2. In a suit on a promissory note given for the purchase-price of land, where the defendant pleaded as a failure of consideration that the seller failed to comply with an agreement with the purchaser to oust from the land certain persons who, at the time of the execution of the note were occupying the land with the knowledge of the purchaser, and also pleaded that the note sued on had not become a complete and binding contract and was not the property of the plaintiff, by virtue of an alleged agreement between the plaintiff and the defendant by which the note had been deposited in escrow with a third person to be delivered to the plaintiff upon the plaintiff’s ousting -from the land the persons who were in possession thereof, and that the plaintiff had failed to comply with this condition, and where there was evidence for the plaintiff to the effect that the note was not deposited in escrow as contended by the defendant but had been delivered to the plaintiff unconditionally, the evidence did not as a matter of law establish either one of the defenses interposed by the defendant, and the verdict for the plaintiff was authorized. •

Decided July 27, 1928.

G. H. Williams, for plaintiff in error. Burch & Daley, contra.

3. The verdict for the plaintiff being authorized, and the only grounds of the defendant’s motion for a new trial presented here being that the evidence did not authorize the verdict, the trial court did not err in overruling the motion.

Judgment affirmed.

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


text:
    18552.
    Dania Cash Stores v. Zaring & Company.
   Stephens, J.

1. A plea of payment is good, as against a special demurrer based upon the ground that the plea is insufficient in failing to state with certainty when, how, and by whom payment was made, when it alleges a sufficient excuse for the failure and inability of the defendant to allege specifically when, how, and to whom payment was made. See Atlantic Coast Line R. Co. v. Hant Lumber Co., 2 Ga. App. 88 (58 S. E. 316); Fletcher v. Young, 10 Ga. App. 183 (3) (73 S. E. 38); Prince v. Cochran, 10 Ga. App. 495 (2) (73 S. E. 693).

2. Where in a plea of payment it is alleged that payment was made by checks signed by certain designated parties and delivered to a certain named agent of the plaintiff during a certain year, it is a sufficient excuse for the failure of the defendant to allege more specifically when, how, and to whom the payments were made, that the canceled checks and check-stubs evidencing such payments were lost or destroyed by a particularly designated storm or hurricane which had swept over the country since the payments were made.

3. A demurrer to the paragraph in the defendant’s plea setting up the above-indicated excuse for failure to specifically allege when, how, and to whom payments were made, upon the ground that this paragraph “is so uncertain and indefinite and so lacking in details that the plaintiff is unable to prepare to meet said plea or to rebut the allegations therein contained,” fails to point out wherein the allegations in this paragraph of the plea are uncertain and indefinite, and therefore constitutes -no special demurrer to the allegation in the defendant’s plea alleging the excuse for failure to specifically allege when, how, and to whom payments were made.

Decided July 27, 1928.

Franklin & Langdale, for plaintiff in error.

Little & Dickerson, contra.

4. There being no special demurrer to the allegation in the defendant’s plea setting up an excuse for the defendant’s failure and inability to more specifically allege when, how, and to whom payments were made, and the plea of payment, by reason of the sufficiency generally of the excuse alleged, being good as against the special demurrer interposed upon the ground that it failed to specifically allege how, when, and to whom payment was made, the court erred in striking the plea and in thereafter rendering judgment for the plaintiff.

Judgment reversed.

Jenhins, P. J., and Bell, J., eoneur.


text:
    18590.
    Capital Wall Paper Company v. Callan Court Company.
   Jenkins, P. J.

1. While it is well settled in this State that when a contract is partly written and partly printed, the written portion is entitled to “most consideration” (Civil Code of 1910, § 4268, par. 6), and that if the printed portions of the contract can not be reconciled with the written portions, the latter prevail (Shackleford v. Fitzgerald, 151 Ga. 35, 39, 105 S. E. 597; Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524, 96 S. E. 583; Surles v. Milliken, 97 Ga. 485, 25 S. E. 322), still the cardinal rule of construction is to ascertain the intention of the parties (Civil Code of 1910, § 4266), and “the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part” (§ 4268, par. 3). Consequently, where the printed portion of a lease contract stipulated in part that “the lessor will not be responsible to the tenant or any other person for any loss of or damage to property, however occurring,” and a written provision of the agreement stipulated that “the lessor agrees to furnish steam heat during the regular seasons for heat in the City of Atlanta, Georgia,” the written and printed portions of the agreement must be construed in pari materia, and that construction placed upon the contract which will uphold it in whole and in every part, since there is no irreconcilable conflict between the quoted provisions. The printed portion of the agreement does not relieve the lessor from liability for a breach of his covenant to furnish heat, but only from liability for resulting damage to property growing out of such a failure. Accordingly, even if it be conceded that the clause of the lease contract requiring the landlord to furnish steam heat during the regular seasons therefor contemplated that such heat should be furnished and maintained in portions of the building other than the first-floor storeroom occupied by the tenant, so that a failure to maintain heat sufficient to prevent freezing of the water-sprinkler system on the second and third floors would amount to a breach of the lease contract, such as would ordinarily give rise to an action for damages on the part of the tenant, still, since in the present case the contract on which the suit is based, by its express terms, relieved the landlord from liability to the tenant ' for any damage to property, however occurring, and since no evidence was adduced tending to establish any damage to the tenant except damage to property, the court properly granted a nonsuit.

Decided July 27, 1928.

Spalding, MacDougdld & Sibley, H. II. Ilargrell, for plaintiff.

Gaudier, Thomson & Eirsch, for defendant.

3. While the lease contract may have been so ambiguous as to authorize the admission of parol testimony to be considered by the jury in arriving at the intention of the parties as to the portions of the entire building required to be heated, any error of the court in rejecting such testimony could not have been harmful to the plaintiff, in view of the express stipulation of the contract releasing the lessor from liability for loss of or damage to property.

Judgment affirmed,.

Stephens and Bell, JJ., concur.


author: Jenkins, R. J.

text:
    18602.
    McCombs v. Southern Railway Company et al.

   Jenkins, R. J.

This was an action for damages, in which a minor, suing by his next friend, claimed that in crossing a bridge over the defendant’s railroad he was enveloped in a dense cloud of smoke, dust, and cinders negligently emitted from defendant’s locomotive which was passing under the bridge, which contributed to his injury by an automobile crossing the bridge at the time. The driver of the automobile was joined as a defendant in the action. The petition alleged that the bridge constituted a portion of a public street, which had been used by the public generally, both for vehicles and by pedestrians, for more than twenty years, and that the bridge was maintained by the defendant company. The petition did not indicate whether or not a separate walkway for pedestrians was maintaind on the bridge. Exception is taken to the sustaining of two special demurrers interposed by the railway company, pointing out that the petition failed to allege whether or not a separate walkway for pedestrians was set apart and maintained on the bridge, and whether or not the particular portion of the bridge upon ‘which the plaintiff alleged he was walking at the time of and just prior to the injury was intended for the use of pedestrians, or whether or not tlie entire bridge was used generally by pedestrians. Held, that the court did not err in requiring the plaintiff to furnish the information called for by the special demurrers; but, in affirming his action in sustaining the demurrers, direction is given that the plaintiff be permitted to amend his petition accordingly, at the time the judgment of this court is made the judgment of the court below.

Decided July 27, 1928.

Porter & Melane, for plaintiff.

Maddox, Matthews & Owens, J. L. Wallace, Harper Hamilton, for defendant.

Judgment affirmed, with direction.

Stephens <md Bell, JJ., concur.


text:
    18605.
    Lang v. South Georgia Investment Co.
   Stephens, J.

1. Whether or not, by a motion in arrest of judgment, a verdict and judgment may be attacked as nullities upon the ground that the verdict is in excess of the amount sued for, nevertheless where it is alleged in the petition that the amount sued for represents a balance due on an indebtedness arising under a promissory note and a contract, after crediting a certain amount derived from the sale of an automobile and adding a certain amount representing repairs made by the plaintiff upon the automobile, and that the defendant is indebted to the plaintiff for interest upon the amount sued for, but no amount representing interest and no date from which the interest can be calculated and no rate of interest are alleged, the verdict for the plaintiff, in so far as it finds a certain sum as interest to the date of the verdict, without reference to any date from which the interest is calculated, is perfectly consistent with the petition, which alleges interest generally, but in no amount and from no date, and is not in excess of the amount sued for, and the judgment upon the verdict, in so far as it provides for future interest at the specified rate of 8 per cent., is not in an amount in excess of that alleged and prayed for in the petition. Besides, the excessiveness of the verdict and judgment does not invalidate them. See Holmes v. Reville, 27 Ga. App. 552 (109 S. E. 417); Wheeler v. Martin, 145 Ga. 164 (3) (88 S. E. 951).

2. As all judgments bear interest from the date of rendition (Civil Code of 1910, § 3432), it is immaterial that the verdict found does not provide for future interest. The judgment therefore, in so far as it provides for future interest, is lawful, and is not invalid upon the ground that it does not follow the verdict. Gray v. Conyers, 70 Ga. 349 (3).

3: It is not essential to the.validity of a verdict that it be written upon the petition. It is therefore no ground to set aside a verdict that it was written upon the back of a paper containing only a demurrer filed in the case. Gittens v. Whelchel, 12 Ga. App. 141 (3) (76 S. E. 1051), and cit.

Decided July 27, 1928.

P. Q. Bryan, for plaintiff in error. Hoyt H. Whelchel, contra.

4. Applying tlie above rulings, the court did not err in sustaining the demurrer to the motion to set aside the judgment.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.


text:
    18610.
    Atlanta Coca-Cola Bottling Company v. Alexander.
    Decided July 27, 1928.

      Candler, Thomson & Hirsch, WeTborn B. Cody, for plaintiff in error.

      Frank C. Tindall, Virlyn B. Moore, contra.
   Jenkins, P. J.

This ease is controlled by the ruling of this court in Bradfield v. Atlanta Coca-Cola Bottling Co., 24 Ga. App. 657 (101 S. E. 776), which is very similar in its facts, except that the present case is somewhat stronger for the plaintiff, in that the presence of the deleterious foreign substance alleged to have been contained in the bottled beverage could not, in this case, have been brought about by negligence on the part of any intermediate dealer, as might have been the ease with the glass contained in the bottle involved in the Bradfield case. In the instant case the foreign substance must necessarily have been in the bottle at the time it left the custody of the defendant bottler. Upon a review of the Bradfield case at the request of the plaintiff in error, the principles of law therein enunciated are adhered to as sound. See, in this connection, 47 A. L. R. 149.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bloodworth, J.

text:
    18890.
    STEWART v. AVERY.

      Decided July 31, 1928.

      Wright & Davis, for plaintiff in error.

      Marvin 0. Russell, Earl Sims, contra.
   Bloodworth, J.

George Avery brought suit against Raymond Stewart, alleging that the defendant injured and damaged him by running over him with an automobile while the plaintiff was walking from the East Point car line along Campbellton road to his home on said road; that at the time of the injury the defendant was driving his automobile at a rate of speed in excess of 30 miles per hour, and approached the plaintiff from the rear; that the injury occurred at night, and the defendant was driving with very dim and insufficient lights; and that the plaintiff was in the exercise of ordinary care. The petition set out the specific injuries alleged to have been sustained. The jury rendered a verdict for $1000 in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and he excepted.

Headnotes 1, 6, 7, and 8 need no elaboration.

In the 2d special ground of the motion for a new trial an effort was made by counsel for defendant to locate the place where the automobile of the defendant struck the plaintiff, by what was sworn to by a witness named Carroll, who had talked to both plaintiff and defendant. Counsel for defendant insisted that the evidence of the plaintiff as given on the stand, as to the location of the place where he was injured, was contradictory to what he had previously stated in the presence of Carroll. In this ground it is stated that, “plaintiff having already testified to these statements (which were, ‘I do not know where the city limits are ont there, but I rather think it is out of the city. I have heard everybody' else say that’), the testimony of the witness J. M. Carroll was asked for the purpose of impeaching the plaintiff, and for the purpose of showing that the witness Carroll had talked with both the plaintiff and the defendant, and that the defendant told him in the presence of the plaintiff where the collision occurred.” No foundation was laid for this testimony by proof of contradictory statements, as required by section 1052 of the Civil Code of 1910. This is necessary for the purpose of impeachment. Estill v. Citizens & Southern Bank, 153 Ga. 618 (7) (113 S. E. 552); Ga., Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276 (5) (61 S. E. 505); Luke v. Cannon, 4 Ga. App. 538 (3) (62 S. E. 110). Even if it was error to exclude from the jury this evidence of the defendant, the error was harmless, as what the plaintiff had already sworn on the trial was before the jury, and the court ruled that the defendant would be allowed to prove anything that the plaintiff said to Carroll.

Special grounds 3, 4, and 5 of the motion for a new trial complain of the exclusion of certain ordinances of the City of Atlanta. Even if these ordinances were admissible and had been properly presented under the facts of the case, the court committed no error in rejecting them. Ground 3 alleges that the court erred in excluding from the jury “an ordinance of the City of Atlanta, regulating riding, driving, and travel in the streets of Atlanta, and providing a punishment for any violation thereof.” This ordinance was offered as a whole. It covers more than ten pages of typewritten matter, and consists of 85 sections, only three of which are alleged to be applicable to this case. Even if we concede that these three sections are applicable to the issue (which we do not), many of the sections are absolutely foreign to it and not relevant in any way. In Arnold v. State, 131 Ga. 494 (3), 496 (62 S. E. 806), it was ruled: “Where testimony is offered as a whole, some of which is competent and some not, a new trial will not be granted because of its rejection.” Presiding Justice Evans said: “The evidence was offered as a whole; and the rule is well settled that where evidence, some of which is admissible, and some of which is not admissible, is offered as a whole, a new trial will not be granted because of its rejection. Central R. Co. v. Skellie, 81 Ga. 56 (6 S. E. 811); Smalls v. State, 99 Ga. 26 (25 S. E. 614); Ellis v. Poe, 109 Ga. 422 (34 S. E. 567).” Under the foregoing ruling the ordinance was not admissible as offered. Ground 4 alleges that the court erred in excluding section 3 of an ordinance of the City of Atlanta, which reads as follows: “Pedestrians, after alighting from vehicles and street-cars, shall proceed directly to the right-hand curb.” This ground is not complete within itself. It does not show that where the plaintiff alighted from the car was in the City of Atlanta. It is urged in this ground that the portion of the ordinance offered was admissible for the reason that the plaintiff “testified that he alighted from a street-car at the intersection of Lee Street [and] Campbellton Eoad.” He,also swore that after alighting he went some distance before being run over, and that at the place where he was injured there was a sidewalk on the left side of the road but none on the right side. This ground shows nothing that requires the grant of a new trial. Ground 5 alleges that the court erred in excluding section 55 of an ordinance of the City of Atlanta, which is in part as follows: “All motor-vehicles used or operated upon any street, alley, or highway in the City of Atlanta during the time from one hour after sunset to one hour before sunrise of each day, shall have thereon two lighted lamps of not to exceed 32-candle power.” It is insisted that this section of the ordinance should have been submitted to the jury, because it “prohibits the use of bright lights within the city limits.” The ground itself does not show either that the occurence was in the City of Atlanta or that it was “during the time from one hour after sunset to one hour before sunrise;” so this ground is not complete within itself.

Grounds 6, 7, 8, 9, and 10 of the motion are based upon alleged error in the refusal of the judge to charge in accordance with certain written requests. Citing Keese v. Mize, 27 Ga. App. 666 (4) (110 S. E. 407), and Jones v. Western & Atlantic Railroad Co., 23 Ga. App. 725 (3) (99 S. E. 388), this court held, in Dixon v. Sol Loeb Co., 31 Ga. App. 166 (12) (120 S. E. 31), that “A statement in the grounds that the requests were tendered * in due time’ is a mere conclusion of the movant, and does not come up to the rule.” In White Sewing Machine Co. v. Horkan, 17 Ga. App. 48 (9) (86 S. E. 257), this court held that “The court did not err in failing to give the numerous instructions requested. Many of them were simply requests that certain code sections the numbers of which only were given be given in charge.” In Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305), it is held: “Where a ground of a motion for a new trial complains of the failure of the judge to charge certain principles of law (which the ground alleges should have been charged under the evidence adduced upon the trial), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of evidence to discover whether there was any evidence requiring such instructions.” Under the rulings in the above-cited cases this court is not required to consider special grounds 6, 7, 8, and 9. Each of these alleges that the court, upon “timely written request,” refused to charge certain principles of law. The request in ground 6 was that a certain code section, identified by number only, be given in charge; and not one of these three grounds sets forth any evidence authorizing the charge requested.

There is no error requiring the grant of a new trial in the excerpts from the charge of which complaint is made in special grounds 11 and 12 of the motion. In ground 11 it is complained that the judge, in his instructions to the jury, told them that “every motor-vehicle shall be equipped with at least two front lamps throwing strong white lights to a reasonable distance in the direction in which such vehicle is proceeding.” Counsel for plaintiff in error urged that the portion of the act of 1918 'just quoted “is void and unenforceable, in that it is too vague and indefinite.” However, it is not pointed out how and in what manner the act is too vague and indefinite, and the court is not called upon to consider such an assignment of error. Ground 12 of the motion is practically a repetition of ground 11.

Judgment affirmed.

Broyles, G. Jand Lulce, J., concur.


author: Bloodworti-i, J.

text:
    19029.
    Watson v. The State.
    Decided July 31, 1928.
   Bloodworti-i, J.

“It not appearing from the bill of exceptions and the record that the bill of exceptions was presented to the trial judge within twenty days of the judgment excepted to (the overruling of the defendant’s motion for a new trial), this court is without jurisdiction to entertain the ease.” Hutchins v. State, 35 Ga. App. 395 (133 S. E. 266). See Tuggle v. State, 30 Ga. App. 671 (118 S. E. 778).

Writ of error dismissed.

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

Robert B. Williamson, for plaintiff in error.

W. 0. Forehand,'solicitor, contra.


author: Broyles, C. J.

text:
    19035.
    Hinson v. The State.
    Decided July 31, 1928.

      Gordon Knox, J. C. Bennett, for plaintiff in error.

      W. B. Gibbs, solicitor-general, contra.
   Broyles, C. J.

1. The amendment to the motion for a new trial was based upon alleged bias and prejudice of one of the jurors. The affidavit of the witness attacking the juror’s competency was met by the State introducing an affidavit from the juror in question, in which he denied the charges made against him. In passing upon the issue thus raised the trial judge was the trior, and his decision can not be controlled unless a manifest abuse of his discretion appears. No such abuse is shown.

2. The evidence, while not entirely convincing to this court as to the defendant’s guilt, was sufficient to authorize the verdict; and the finding of the jury having been approved by the trial court, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, J.J., concur.


text:
    19037.
    Stewart v. The State.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. “The decision of every issue of fact is exclusively for the jury.” “No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230).” Unity Cotton Mills v. Hasty, 19 Ga. App. 588, 590 (91 S. E. 915). There is evidence from which the jury were authorized to reach the conclusion that the accused was engaged in manufacturing liquor; and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618). See Flint v. State, 29 Ga. App. 222 (114 S. E. 585).

Decided July 31, 1928.

J. A. Beazley, for plaintiff in error.

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

Judgment affirmed.

Broyles, 0. J., and Luke, J., eoneur.


text:
    19038.
    Whitehead et al. v. The State.
    Decided July 31, 1928.

      J. A. Beazley, for plaintiffs in error.

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

Where two defendants, -after being separately indicted, are by consent tried together, and separate verdicts of guilty arc returned, and separate motions for new trials are filed, and the court passes separate written orders overruling the motions, the defendants can not bring their cases to this court in one bill of exceptions. Washington v. State, 32 Ga. App. 72 (122 S. E. 629); Wall v. Mann, 163 Ga. 42 (135 S. E. 407). “For want of jurisdiction in such a case, this court can not entertain a motion made by one of the plaintiffs in error that his name be stricken from the bill of exceptions and that the case proceed in the name of the other plaintiff in error.” Center v. Fickett Paper Co., 117 Ga. 222 (2) (43 S. E. 498); Wall v. Mann, supra.

Writ of error dismissed.

Luke and Bloodworth, JJ., eoneur.


text:
    19040.
    Seagler Brothers v. Stephens.
    Decided July 31, 1928.

      Homer Beeland, for plaintiffs in error. G. W. Garrett, contra.
   Bloodworth, J.

The judge did not err in any of his rulings as to the admission or exclusion of evidence, and properly directed a verdict for the plaintiff. Judgment affirmed.

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


author: Bloodwobth, J.

text:
    19044.
    Vaughn v. The State.
    Decided July 31, 1928.

      Fulllright & Burney, for plaintiff in error.

      George Hains, solicitor-general, John M. Graham, contra.
   Bloodwobth, J.

“Until there has been a judgment finally disposing of the case in the trial court, the Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the striking of a plea of former jeopardy, filed by the accused. Fugatszi v. Tomlinson, 119 Ga. 622 [46 S. E. 831], McElroy v. State, 123 Ga. 546 (51 S. E. 596) and cit.” This ruling is controlling in this case. See Civil Code (1910), § 6138; Hightower v. State, 22 Ga. App. 276 (95 S. E. 873); Head v. Jordan, 33 Ga. App. 170 (125 S. E. 733); Johnson v. Merchants & Farmers Bank, 141 Ga. 721 (81 S. E. 873).

Writ of error dismissed.

Broyles, O. J., and Luhe, J., concur.


text:
    19045.
    CLAYTON v. SPILLER.
    Decided July 31, 1928.

      Hamilton Burch, for plaintiff in error.

      Little & Dickerson, contra.
   Bloodworth, J.

J. H. Spiller, doing business as Spiller Motor Company, brought suit against W. C. Clayton for breach of contract. The record shows that the plaintiff contracted to sell to the defendant a new automobile, and to take in part payment therefor a used car; that the contract of sale was in writing; that each party delivered to the other the car as per the contract; and that the defendant was to execute twelve notes for the balance of the purchase-price of the new car, but, after keeping and using the new car for five days, and on the last day driving it 176 miles, the defendant “soiled said car and muddied same,” and thus reduced its market value $17.5, and then refused to sign the notes for the balance of the purchase-pi me thereof, returned the new car to the plaintiff,. and demanded the return of his ear. Plaintiff claimed damages for the injury of the new car, $175, and alleged loss of his commissions, $386, and prayed for a judgment for $561. Defendant filed general and special demurrers, both of which were overruled, and exceptions pendente lite were filed. Under a plea denying liability the case proceeded to trial, and the jury returned a verdict against the defendant for $150. A motion for a new trial was overruled. Defendant filed a bill of exceptions assigning' error on the exceptions pendente lite and on the overruling of the motion for a new trial; but the motion for a new trial is not included in the record, not specified as material, and not argued by counsel, and counsel for the plaintiff in error relies solely on the assignment of error-on the exceptions pendente lite.

The first headnote needs no elaboration.

Paragraphs 5 and 9 of the petition are as follows: “5. Defendant kept the said car for a period of five days and drove said car during said five days, and on the last day of said five-day period drove said car a distance of one hundred and seventy-six miles as shown by the speedometer on .same, and soiled said ear and muddied same.” “9. Defendant [plaintiff] further alleges that the market value of said Willys-Knight car by reason of the use of same by defendant for said five-day period decreased in the sum of . . $175, and that by reason of said decrease in the market value of said car plaintiff has been damaged in said additional sum of . . $175, for which the plaintiff also sues.” Paragraph 1 of the demurrer alleges “that paragraphs 2, 3, 4, 6, 7, 8, and 10 of said petition seek to set forth a cause of action arising ex contractu, while paragraphs 5 and 9 of said petition attempt to set forth a cause of action arising ex delicto; these actions can not be joined.” Paragraphs 5 and 9 of the petition do not set out a cause of action arising ex delicto, and the court did not err in overruling ground 1 of the demurrer. Paragraphs 2 and 3 of the demurrer are as follows: “2. Defendant demurs to paragraph 4 of said petition, for the reason that the automobile alleged to have been delivered to this defendant is not described with sufficient certainty to enable defendant to plead. A more definite description of said automobile should be given, such as make, model number, motor-number, and type of automobile.” “3. Defendant demurs to paragraph 9 of said petition, for the reason that the items of damage are not set forth with sufficient particularity to put defendant upon notice of what they are. It should be stated what amount of damage was caused by having been driven 176 miles, and also what amount by reason of having soiled and muddied said car.” There is no merit in either of these grounds of the demurrer.

Judgment affirmed.

Broyles, Q. J., and Buhe, J., concur.


text:
    19046.
    Mobley, superintendent of banks, v. Brown.
    Decided July 31, 1928.

      Clarence B. Adams, for plaintiff.

      B. Howard Gordon, for defendant.
   Broyles, C. J.

1. Tlie court did not err in allowing the amendment to the defendant’s original plea, nor in refusing to strike certain portions of paragraph five, and all of paragraph six, of the original plea. “A married woman can not make any contract of guaranty or suretyship, or make a valid promise to pay her husband’s debt. The form in which it is attempted to make her liable for the debt is immaterial.” Thompson v. Wilkinson, 9 Ga. App. 367 (71 S. E. 678). Furthermore, whether the obligation assumed by a married woman in signing a promissory note was an original undertaking or one of suretyship is a question of fact for the jury. Rogers v. Patterson, 14 Ga. App. 292 (80 S. E. 701).

2. Where suit is brought on a promissory note, and the defendant in his plea admits the execution of the note and the ownership of it by the plaintiff, a prima facie case for the latter is made out, and the defendant is entitled to open and conclude the argument. Montgomery v. Hunt, 93 Ga. 438 (21 S. E. 59). In the instant case the court did not err in allowing the defendant to have the opening and conclusion of the argument.

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

Luke and Bloodworth, JJ., concur.


author: Bioodworth, J.

text:
    19048.
    MOBLEY, superintendent of banks, v. CHILDERS.

      Decided July 31, 1928.

      Clarence E. Adams, for plaintiff.

      B. ELoward Gordon, for defendant.
   Bioodworth, J.

Mobley, as superintendent of banks of the State of Georgia, sued Childers tad White as indorsers on a promissory note. The principal maker of the note was not sued, as he was a nonresident of the State of Georgia. Childers in his plea said he “admits the execution of the note sued on, that the plaintiff is the holder thereof, and entitled to sue, and that this admission is made for the purpose of obtaining the opening and concluding argument to the jury.” In a subsequent paragraph of the plea the defendant alleged that “there is no liability on his part to the plaintiff, for the reason that the note is not a complete legal contract.” The judge allowed the defendant to have the opening and conclusion, and to this ruling the plaintiff filed exceptions pendente lite. The ease proceeded to trial, and the jury rendered a verdict for the defendant. The plaintiff filed a motion for a new trial, and when that was overruled he filed a bill of exceptions assigning error on his exceptions pendente lite and on the order overruling his motion for a new trial

We will discuss the first headnote only, which is based upon the assignments of error in the exceptions pendente lite. When admissions are made in pleas in order to obtain the opening and conclusion of the argument, the general rule is, that, “In order to entitle a defendant to the opening and conclusion of the argument, he must in his pleadings, and before the plaintiff begins to introduce testimony, admit enough to make out a prima facie case for the latter. Massengale v. Pounds, 100 Ga. 770 [28 S. E. 510]; Dorough v. Johnson, 108 Ga. 812 [34 S. E. 168]; Central Ry. Co. v. Morgan, 110 Ga. 168 [35 S. E. 345]; Whitaker v. Arnold, 110 Ga. 857 [36 S. E. 231].” Reid v. Sewell, 111 Ga. 880 (2) (36 S. E. 937). In the case under consideration the foregoing ruling was complied with, and in his plea the defendant admitted “the execution of the note sued on, that the plaintiff is the legal holder thereof, and entitled to sue, and that this admission is made for the purpose of obtaining the opening and concluding argument to the jury.” The defendant having made this admission in his plea, the burden of proof was upon him, and he was accordingly entitled to claim the opening and conclusion. As was said in Walker v. Bryant, 112 Ga. 412 (2), 414 (37 S. E. 749): “The action was upon a promissory note. In his answer the defendant admitted the execution of the note and title thereto in the plaintiff. This, under numerous decisions of this court, was sufficient to entitle the defendant to open and conclude. Montgomery v. Hunt, 93 Ga. 438 [21 S. E. 59]; Levens v. Smith, 102 Ga. 480 [31 S. E. 104]; Southern Mutual Assn. v. Perry, 103 Ga. 800 [30 S. E. 658]; Swanson v. Cravens, 105 Ga. 471 [30 S. E. 642]; Whitaker v. Arnold, [supra].” The second headnote in the Walker case, supra, is as follows: “An admission in an answer to an action upon a promissory note, when in other respects sufficient to entitle the defendant to open and conclude, is not rendered ineffectual for this purpose because it is followed by a general denial of indebtedness upon the note.” In Fisher v. Whitehurst, 14 Ga. App. 218, 220 (80 S. E. 536), this court held: “There was no error in allowing the defendant the right to open and conclude'on his pica as amended. He admitted the execution of the note and that the plaintiff was the lawful holder thereof, and also admitted that he owed the sum claimed to be due on, open account, unloss he could sustain his affirmative defense of breach of warranty and failure of consideration. Walker v. Bryant, 112 Ga. 412 (37 S. E. 749); Martin v. Hale, 136 Ga. 228 (71 S. E. 133); Carolina Portland Cement Co. v. Marshall, 9 Ga. App. 555 (71 S. E. 942).” See ruling from Martin v. Hale, supra, copied in headnote 1 above.

Under the rulings in the foregoing cases, the judge properly allowed the defendant to open and conclude the argument to the jury. Moreover, the motion of the plaintiff in error that “the court disallow defendant to assume the burden and have the opening and conclusion” of the argument to the jury, is in the nature of a special demurrer to the plea, and was not in writing or made at the first term.

Judgment affirmed.

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


text:
    19049, 19050.
    Hendrix v. The State.
    Decided July 31, 1928.

      Kirkland & Kirkland, for plaintiff in error.

      L. C. Anderson, solicitor, contra.
   Broyles, C. J.

In each of these cases the verdict was authorized by the evidence, and the only special ground of the motion for a new trial was based upon alleged newly discovered evidence. That evidence, however, was cumulative and impeaching in its character, and it does not appear that the trial judge abused his discretion in refusing to grant a new trial.

Judgments affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    19051.
    FRIEDLANDER BROTHERS et al. v. KASSELL.

      Decided July 31, 1928.

      Franklin & Lang dale, for plaintiffs in error.

      F. E. Wilcox, T. G. Connell, contra.
   Broyles, C. J.

This was a suit on a promissory note (for a balance of $3000), in which the defendants pleaded a set-off in the sum of $2744.32 for money alleged to have been lent to the plaintiff by Nathan Friedlander, one of the defendants, his claim therefor having been duly transferred to the defendants. It appeared without dispute, from the evidence, that the plaintiff and Nathan Fried-lander had been joint owners of certain tracts of land in the City of Moultrie, and the plaintiff testified that no such loan as pleaded by the defendants had ever been made, and that the check for $2744.32, dated January 27, 1921, drawn by Nathan Friedlander and payable to the plaintiff’s order, represented the agreed purchase-price of the plaintiff’s half interest in the Moultrie lands which he sold to Friedlander in January, 1921. The sole issue in the case-was whether the $2744.32, paid to the plaintiff by Friedlander, was for the purchase-price- of the plaintiff’s interest in the lands, or was a loan of money to him. Upon this question the evidence was in acute conflict, but the jury decided it in favor of the plaintiff, and there was evidence to sustain their finding.

The court did not err in refusing to allow a witness for the defendants to answer the question propounded by the defendants’ counsel as set forth in ground 4 of the amendment to the motion for a new trial. The question was leading, and furthermore “did not call for a fact, but instead for a mere operation of the witness’ mind, the secret undisclosed intent of the witness in the event of the presentation of a situation calling for action. . . Such evidence is not admissible.” Saxe v. Penokee Lumber Co., 159 N. Y. 380 (54 N. E. 414), and cit. See also Western Union Telegraph Co. v. Watson, 94 Ga. 202, 206 (21 S. E. 457, 47 Am. St. R. 151).

Ground 5 of the amendment to the motion for a new trial complains that the court in its charge incorrectly stated the contentions of the defendants. It is true that there were some inaccuracies in that portion of the charge, but they were not upon a vital issue in the case, and did not require the grant of a new trial. See, in this connection. Varn v. Bloodworth, 157 Ga, 300 (121 S. E. 380).

Special ground 6 of the motion for a new trial is without merit.

The other special grounds of the motion are based upon the refusal of the judge to answer in the negative a question propounded to him by the jury, and upon the recharge given them after the asking of the question, under the following circumstances as set forth in the record: “After the jury had been considering the case for about three hours under the original instructions given them by the court, and up to that time being unable to agree on a verdict, the jury returned into court and asked the trial judge whether or not a verdict for the plaintiff would automatically put the title to the real estate in Moultrie, Georgia, admitted to have been owned on January 27, 1921, jointly by the plaintiff and Nathan Friedlander, in Nathan Friedlander?” After the question was asked, the court, out of the presence of the jury, heard arguments by counsel for both parties, and then charged the jury as follows: “The court is not disposed to answer your question, because you are not concerned about the ultimate or further results of your verdict, but you are concerned in rendering a verdict upon the issues you are trying and passing upon in this matter, and not what the future may be or not be. As I have instructed you before, this case is to be decided upon the issue as to whether or not this was a sale between these parties, or [a] loan, and I have charged you about that and you have heard all the testimony about it, and it is a question for you to say. If you believe from the evidence that it was a sale, then you will so find; you will not be concerned about future results about that. If you believe it was a loan, from the facts submitted, you will so find; that is a matter of evidence, and the court can not help you about it. If you believe it was a sale, say so by your verdict; and if you believe it was a loan, say so. This court [city court] would not have jurisdiction to pass upon title in the future between these parties. Of course, the result of your verdict might or might not, if properly set up at some future time, if the question should arise, have some say so, or weight, or be some evidence upon this question; but you are not concerned about that. I charge you if you believe this was a sale between these parties, you will so find; and if you believe from the testimony it was a loan, then so find; and your verdict would be as I have formerly instructed you. I will be glad to give you definite instructions, but I doubt if it will be proper; and as it is not proper, and is not an issue, I do not feel like giving you any instructions about it. You are to try the issues in this case — those that are being tried and have been tried here all day. Say by your verdict whether you believe it was a loan, or sale, and let the balance take care of itself at some future time.” The trial judge did not err in failing and refusing to answer in the negative the question propounded to him by the jury; nor was his recharge to the jury error for any reason assigned. See, in this connection, Benton v. Hunter, 119 Ga. 381 (3), 385 (46 S. E. 414).

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

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    19053.
    SEABOARD AIR-LINE RAILWAY CO. v. JACKSON.
    Decided July 31, 1928.
    Rehearing denied August 10, 1928.

      N. J. Norman, Conyers & Goiven, for plaintiff in error.

      W. F. Mills, Oliver & Oliver, John Z. Ryan, contra.
   Bloodworti-i, J.

The husband of the plaintiff was found dead by the “main-line track” of the railway of the defendant. She sued for damages, alleging in part that in the village of Dorchester there were two public-road crossings over the main-line track, distant from each other about 200 yards, and that “on either side of the main-line track of said railroad and between the two public-road crossings are well-beaten paths which are used constantly by pedestrians both night and day in passing up and down the said railroad-tracks;” and that her husband “proceeded along the pathway which was well beaten and was being used constantly by the general public to the knowledge of the Seaboard Air-Line Ry. Co., its engineers, firemen, servants and employees, as a footpath,” and that her husband “when he reached a point about fifty yards south of the northern public-road crossing, became suddenly sick and dizzy and fell down at said point by the side of the western rail of the Seaboard Air-Line Railway track,” and that “when her said husband fell to the ground because of said attack he was forced to discontinue his journey and to remain upon the ground near the western rail of the railroad-track in a helpless condition,” and while in said position he was struck by a locomotive of the said railway company and was killed. Negligence of the railway company was charged, and the plaintiff alleged that her husband was free from fault. Upon the trial of the case the jury returned a verdict against the defendant. A motion for a new trial was overruled, and the railway company excepted.

The motion for a new trial contains no special grounds except those in elaboration of the general grounds. The determination of every issue of fact is exclusively for the jury, and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618). See Rogers v. State, 101 Ga. 561 (28 S. E. 978), from which the quoted ruling in the headnote is taken. In this case there is some evidence which would authorize the jury to find “that it was the duty of the employees of the defendant railway company to have anticipated the presence of pedestrians upon its track at the time and place of the homicide (Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (3) (89 S. E. 841); Wright v. Southern Ry. Co., 139 Ga. 448-450 (77 S. E. 384).” Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). There is evidence also from which the jury could infer that the deceased while walking along the right of way of the railway company had a sudden attack of illness which caused him involuntarily to “fall right down” and rendered him incapable of caring for himself and getting away from the railroacl-track. In any event this court can not say that the verdict has no evidence to support it; and as it is approved by the judge who tried the case, this court will not interfere.

Judgment affirmed.

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


author: Bkoyles, C. J.

text:
    19069.
    Tyler v. The State.
    Decided July 31, 1928.

      O. M. Duke, for plaintiff in error.

      Frank B. Willingham, solicitor-general, contra.
   Bkoyles, C. J.

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

Judgment affirmed,.

Luke and Bloodworth, JJ., concur.


text:
    19081.
    Jones v. The State.
    Decided July 31, 1928.

      W. B. Smith, A.. D. Tucker, for plaintiff in error.

      H. G. Morgan, solicitor-general, Joseph A. Alexander, contra.
   Bkoyles, C. J.

1. “In order for this court to control the discretion of the trial judge in refusing to grant a motion for the postponement of a criminal case to allow counsel to prepare for trial, it is necessary that it should appear that a gross mistake has been made by the trial judge, or that he has displayed a want of consideration for the rights of the accused.” Harris v. State, 119 Ga. 114 (45 S. E. 973). Under this ruling and the facts of the instant ease, including the note of the trial-judge, this court is unable to hold that the refusal to postpone the ease was an abuse of discretion on the part of the judge. The cases cited in the brief of counsel for the plaintiff in error are distinguished by their particular facts from this case.

2. The other assignments of error, not having been argued or insisted upon in the brief of counsel for the plaintiff in error, are treated as abandoned. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19086.
    LUCAS v. THE STATE.
    Decided July 31, 1928.

      C. L. Cowart, for plaintiff in error.

      M. W. Eason, solicitor, Joseph T. Grice, contra.
   Bloodworth, J.

(After stating the foregoing facts.) We will discuss headnotes 2 and 6 only.

Ground 3 of the demurrer alleges that “the affidavit upon which the accusation is based charges no crime against this defendant, and the accusation is void for the reason that it is based on no affidavit that is sufficient upon which to base an accusationbut this ground does not show how or in what respect the affidavit is insufficient. “Demurrer, being a critic, must itself be free from imperfections.” Douglas &c. R. Co. v. Swindle, 2 Ga. App. 550 (4) (59 S. E. 600). Moreover, in the brief of counsel for the plaintiff in error it is urged that this insufficiency is due to the fact that the affidavit merely charges the defendant with having committed a “misdemeanor.” “An accusation in a city court, in the absence of a clear contrary provision in the act creating the court, may lawfully be based upon an affidavit charging the defendant with the offense of ‘misdemeanor.’ ” Hunter v. State, 4 Ga. App. 579, 580 (61 S. E. 1130), and cit.; Lewis v. State, 28 Ga. App. 681, 682 (113 S. E. 228), and cit. In the act creating the city court of Beidsville there is no “clear contrary provision.”

The special grounds of the motion for a new trial all complain of the admissibility of specified evidence. The evidence complained of in the first four grounds was properly admitted. It was permissible to show that Kicklighter, the -maker of the check, had given the bank instructions not to cash the check unless the payee was positively identified as Williams, and that the bank cashed the cheek contrary to these instructions. This was material to show why the bank lost the money as alleged in the accusation, as well as to sustain the allegations relative to these instructions.

Judgment affirmed.

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


author: Rkoyles, C. J.

text:
    19093.
    Tolbert v. The State.
    Decided July 31, 1928.

      Hugh B. Qornbs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Rkoyles, C. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., coneur.


text:
    19098.
    CRAFT v. THE STATE.
    Decided July 31, 1928.

      Lowndes Calhoun, for plaintiff in error.

      John A. Boykin, solicitor-general, Carlton W. Binns, solicitor, J. W. LeCraw, contra.
   Bloodworth, J.

In his petition for certiorari the accused assigns error on certain portions of the charge to the jury, and alleges that “the verdict and sentence of the'court was contrary to the evidence, without evidence to support it, and contrary to law.” In his answer to the writ of certiorari Judge Jesse M. Wood, who presided at the trial of the case in the criminal court of Atlanta, says that the portions of the charge which the plaintiff in error insists are erroneous are as follows: (a) “In misdemeanors the law does not recognize some of those who participate in the commission thereof as principals and others as accessories, but the law says that all who counsel, aid, or assist in the commission of an offense known as a misdemeanor are guilty as principal offenders, and may be charged, prosecuted, and convicted as such.” (b) “Under the law the defendant has the right to make to the court and jury in his own defense just such statement as he sees fit to make. He is not under oath, He is not subject to cross-examination, and his statement thus made is entitled to just such weight and credit only as the jury thinks that it is entitled to receive. The jury may believe it in whole or they may believe it in part, and they may believe it in preference to the sworn testimony in the case, or they may disregard it altogether.” Neither of these excerpts from the charge is erroneous. As to the first, see Southern Express Co. v. State, 6 Ga. App. 31 (64 S. E. 341); Littlefield v. State, 22 Ga. App. 782 (97 S. E. 259); Jackson v. State, 29 Ga. App. 324 (3), 326 (115 S. E. 507). As to the second, see Rivenbark v. State, 36 Ga. App. 741 (5) (138 S. E. 258).

There is ample evidence to support the verdict, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    19099.
    Jones v. The State.
    Decided July 31, 1928.

      Hill 0. Davis, J. A. McDuff, for plaintiff in error. ,

      John A. Boykin, solicitor-general, J. W. LeCraw, E. A. Stephens, contra.
   Broyles, C. J.

By consent the defendant was tried under two separate and distinct indictments at the same trial. A separate verdict of guilty and a separate judgment were rendered on each indictment. One motion for a new trial, based upon both verdicts, was made and overruled; and the defendant sued out one bill of exceptions, in which he seeks to have both of the judgments set aside. This is not allowable, and this court has no jurisdiction to entertain the bill of exceptions. Fillingame v. State, 27 Ga. App. 764 (109 S. T. 916), and cit.

Writ of error dismissed.

Luke and Bloodworth, JJ., ooneur.


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

text:
    19172.
    Brown v. Hutcheson, Judge.
   Broyles, C. J.

1. An application to this court for a mandamus nisi to compel a judge to certify a bill of exceptions must be filed uytthim, twenty days after the refusal of the judge to certify the bill of exceptions; and if not so filed, the'petition will not be considered. Civil Code (1910), §§ 6252, 6348.

2. In the instant case the record discloses that the judge, on June 5, 1928, declined to certify the bill of exceptions, and that the application for mandamus was verified by counsel for the petitioner on July 26, 1928, . and, on the same day, was filed in the office of the clerk of this court. Under the ruling stated in the preceding note, the petition for a mandamus can not be considered.

Decided July 31, 1928.

Aldine & Hewitt W. Chambers, for the applicant.

Mandamus nisi denied.

Bloodworth, J., concurs.

Luke, J.

I concur doubtfully, because there seems to be a conflict between the statute (Civil Code, § 6159) and the rules of the appellate courts (§§ 6252, 6348).


text:
    19080.
    Jennings v. The State.
    Decided July 31, 1928.

      Boy 8. Drennm, for plaintiff in error.

      Carlton W. Binns, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Bloodworth, J.

The certiorari was overruled April 20th, and the bill of exceptions assigning error on this ruling was tendered to the judge on May 11th. The tender not being within the twenty days prescribed by law, this court is without jurisdiction to entertain the case. Hutchins v. State, 35 Ga. App. 395 (133 S. E. 266).

Writ of error dismissed.

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