text:
    19560.
    COFFEE v. THE STATE.
    Decided May 14, 1929.

      Walter Matthews, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, contra.
   Luke, J.

The indictment in this case charges that W. P. Coffee “did . . attempt to manufacture . . spirituous liquors . . by then and there building a still-furnace and placing a still in said furnace, but was prevented from . . manufacturing such liquors by being intercepted by the officers.” G-. E. Mize testified in substance as follows: At about 1 o’clock on January 13, witness secreted himself at a place about seventy-five yards from a still located on a branch between a quarter and half a mile from defendant’s house. Defendant approached the still and began tightening the hoops on a barrel. He then began doing some work on the top of the still, apparently on the hole for the still-cap. The still was on the furnace, and both “seemed to have been built that morning.” There was a “flakestand,” or trough, near the still. We here quote the witness’s testimony: “He did not continue to work on the still when I got up to him . . I arrested him there. I prevented him, intercepted him and prevented him from doing the work . . He told me at different times after that . . that if I had let him alone three weeks he would have made out of it four or five hundred dollars. . . He was insisting that I wouldn’t cut up his still, . . and I saw a wagon coming down the hill. . . Mr. Coffee commenced motioning for the man to go back, but he didn’t pay no attention to him. He drove as near to the still as he could get with the wagon. That was in Haralson county.” The wagon contained six or seven bushels of meal and some pine wood. The witness also swore that the defendant subsequently stated that “he was fixing to make some good whisky.” The testimony of the other arresting officer is practically the same as that of Mize, and the strength of the State’s case lies in the evidence of these two eye-witnesses.

“If any person shall attempt to commit a crime, and in such attempt shall do any act toward the commission of such crime, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, he shall, in cases where no provision is otherwise made in this Code, or by law, for the punishment of such attempt, be punished as follows,” etc. Penal Code (1910), § 1066. “Between the preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.” The foregoing is a quotation from a California case (People v. Murray, 14 Cal. 159) in Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598). This decision differentiates between mere preparation to commit an offense and an attempt to do so. Justice Pish, speaking for the court, states the test briefly and clearly in this language: “In order to constitute the offense of attempt to commit a crime the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. Webster’s Diet. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it.” Eor instances of the application of the foregoing rule in cases similar to the one at bar, see Hartline v. State, 34 Ga. App. 224 (129 S. E. 123); Foster v. State, 37 Ga. App. 498 (140 S. E. 775.) See also brief in Groves v. State, supra. Under the foregoing authorities, we do not think that the evidence warranted the conviction of the defendant of an attempt to manufacture intoxicating liquor.

Judgment reversed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    19577.
    RICHARDS v. THE STATE.

      Decided May 14, 1929.

      H. O. Strickland, Smith & Millican, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Luke, J.

J. P. Bichards was convicted of having, controlling, and possessing intoxicating liquors. His motion for a new trial contained the usual general grounds, and two special grounds, one complaining of the admission of evidence, and the other of the charge of the court.

The evidence is undisputed that a deputy sheriff and others found a still, with fire burning in the furnace, and hot beer in the still, near a certain branch, and that they then followed the only traveled path leading from the still in the general direction of the defendant’s house a distance of one hundred and thirty-five steps, and found the defendant with Ern J. Books and Wesley Musik, “surrounded” by twenty-three gallons of whisky in several jugs and a five-gallon keg; and that Musik and Books looked “sooty, smoky, and tired,” while the defendant looked “cleaned up.” Books testified that the whisky was his, and that the defendant had no interest in it. The defendant stated that he was looking for Musik to tell him what to do with his, the defendant’s team; that Mrs. Musik told him her husband was over in the woods; that he accidentally walked up on Musik, Books, and the whisky; that the officers suddenly appeared upon the scene; and that he had no interest in the whisky.

Beferring to the’transaction under consideration, T. O. Hamrick, the deputy sheriff, testified that the defendant made this statement: “We won’t employ counsel, but we will just go up and plead guilty to possessing it.” H. J. Knott understood the defendant’s statement to be this: “Boys, there isn’t any use to employ any counsel or to pay out any money; if you are guilty, or if you are caught, there ain’t any use of fighting.” Ern. J. Books’s version of what the defendant said is this: “Ern, if you boys are guilty, you had better just plead guilty and save a lawyer’s fee.” The defendant’s statement as to what he said is practically the same as Books’s testimony in that regard. If the defendant’s statement was as Hamrick testified, it was in effect a confession of guilt, and the jury had the right so to consider it. See Abrams v. State, 121 Ga. 170 (48 S. E. 965). Of course, proof of the corpus delicti authorizes a jury to find that a confession is sufficiently corroborated. See Kersey v. State, 37 Ga. App. 822 (142 S. E. 199). We can not say from the record in this ease that there was no evidence to sustain the verdict, and, therefore, we hold that the judge did not err in overruling the general grounds of the motion for a new trial.

The first special ground, complaining of the admission of certain oral evidence over the objection that it was “irrelevant and immaterial,” is too general to be considered by this court. See Herndon v. State, 38 Ga. App. 117 (4) (142 S. E. 695) ; Staples v. State, 37 Ga. App. 97 (3) (142 S. E. 747). Such a defective assignment of error can not be perfected by a subsequent statement in the exception setting out reasons why the evidence should have been rejected. See Edenfield v. State, 37 Ga. App. 628 (2) (141 S. E. 220), and cit.

The only other special ground complains of the following charge of the court: “I charge you that in this State there are no accessories in misdemeanor cases, and this is a misdemeanor case you are trying, but each person who knowingly participates in a criminal act which is a misdemeanor is guilty as principal . . If some other person or persons possessed intoxicating liquors in this county as-charged in this accusation, and this defendant, Perry Richards, was present, aiding and abetting at the time such other person or persons in their criminal act in such illegal possession, and participating in their criminal intent, he would be guilty, and you should so say by your verdict. If neither of these statements or facts are true, he would not be guilty, and you should acquit him. Therefore, in this case you are trying, if the evidence convinces your mind beyond a reasonable doubt that the accused on the occasion in question was aiding and abetting another who was violating this law of Georgia which prohibits a person from having, controlling, and possessing the liquors which I have hereinbefore enumerated to you, the accused would be guilty, and you should so say by your verdict.” It is contended that the charge was prejudicial, first, because there was no pleadings or evidence to authorize it; second, because “it was not a correct statement of law, in that there is no such thing as participating in a criminal intent as charged; third, because it was an expression of opinion by the court that there was evidence to authorize a finding that there was a joint act bjr the parties named to violate the law; fourth, because the court expressed an opinion in using the language, ‘If neither of these statements of fact are true;’ and, fifth, because the evidence did not show that there was any act or intention on the part of the movant to aid and abet any other person in the violation of the law.”

The principal part of the quoted excerpt is in the exact language of the charge in Hawkins v. State, 37 Ga. App. 831 (142 S. E. 214). It is perfectly apparent that the charge was authorized by the evidence, and that it was not erroneous for any reason assigned.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.


author: Bloodworth, J.

text:
    19588.
    CLARK v. MARYLAND CASUALTY COMPANY et al.

    Decided May 14, 1929.

      John B. Guerry, J. J. Bull & Son, for plaintiff.

      Hollis Fort, R. L. Greer, John M. Greer, for defendants.
   Bloodworth, J.

This ease grows out of an injury to G. P. Clark received while he was employed by the commissioners of roads and revenue of Macon county. Under the workmen’s compensation act the county carried insurance for its eraployees. On August 15, 1928, Clark filed a claim for damages against the county and against the Maryland Casualty Company as insurance carrier. The record shows that he received an injury to his hand on April 27, 1927, but that, not considering his injury of any “serious consequences,” no claim for compensation was filed “within twelve months from the date of the-injury.” He claimed that he did not know the extent of the injury “until October, 1927, and urged that the case be heard notwithstanding he had not made application within one year from the date of the injury.” T. E. Whitaker, the commissioner who heard the case, dismissed the claim, “for the peason that his claim was not filed witbip twelve months from the date of the injury, and that no contention was made by him that his case would come under the exceptions noted in section 25 of the act, that any fraud had been practiced in connection with his case.” On appeal to the superior court the judgment of the commissioner was affirmed, and the case was brought to this court by writ of error. The law itself clearly settles the question involved. The workmen’s compensation act (Ga. L. 1920, p. 181, sec. 25; 12 Park’s Code Supp. 1926, § 3154(y); Michie’s Code (1926), § 3154(25)) declares that the right to compensation under this act shall be forever barred unless a- claim be filed with the industrial commission within one year after the accident, and, if death results from the accident, unless a claim is filed with the commission within one year thereafter. IJnder this law neither the commissioner nor the judge erred in his ruling.

Judgment affirmed.

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


text:
    19594.
    Clifton v. Standard Lumber Company.
    Decided May 14, 1929.

      Anderson & Jones, for plaintiff.

      Hinton Booth, for defendant.
   Bloodworth, J.

The evidence in this ease is so very similar to that in Poss Lumber Co. v. Haynie, 37 Ga. App. 60 (139 S. E. 127), that the ruling in that case is controlling in this. See Standard Lumber Co. v. Clifton, 38 Ga. App. 291 (143 S. E. 784).

Judgment affirmed.

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


text:
    19596.
    Rowland v. The State.
    Decided May 14, 1929.
   Luke, J.

The alleged newly discovered evidence is merely cumulative and impeaching in its character, and, in addition thereto, the witnesses who purport to give the new and additional testimony were accessible and known to Rowland before and at the trial. The court properly overruled the extraordinary motion for a new trial.

Judgment affirmed.

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

William B. Eenl, for plaintiff in error.

W. B. Gills, solicitor-general, contra.


author: Bloodwokth, J.

text:
    19599.
    Willis v. Daniel, executor.
    Decided May 14, 1929.

      L. P. Strickland, for plaintiff in error.
   Bloodwokth, J.

“The court is without jurisdiction to entertain a bill of exceptions which fails to except to a final judgment. The mere fact that the record discloses a final judgment in favor of the defendant in error does not change the rule.” Southern Ry. Co. v. Floyd County, 37 Ga. App. 689, 691 (141 S. E. 497), and cit. “A hill of exceptions can not he maintained where the only exception therein is to a judgment disallowing an amendment to the answer of the defendant. This is true notwithstanding a recital in the bill of exceptions that the case proceeded to judgment in favor of the plaintiff.” Cheney v. Corbitt Motor-Truck Co., 36 Ga. App. 590 (137 S. E. 412). In tire instant case there is no exception to a final judgment, and under the rulings in the above eases, the writ of error must be and is

Dismissed.

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


text:
    19604.
    Chambers v. Kicklighter.
    Decided May 14, 1929.
   Bloodworth, J.

1. When the excerpts from the charge of the court of which complaint is made in the motion for a new trial are considered in the light of the remainder of the charge, there is no error in any of them which requires the grant of a new trial. If fuller instructions were desired, a proper and legal request therefor should have been made. In the excerpt quoted in the second ground the court did not intimate his opinion as to what had been proved.

2. For no reason assigned did the court err in admitting the evidence of which complaint is made in the fourth ground of the motion. Moreover, this ground fails to state the name of the witness whose testimony was admitted over counsel’s objection. Chandler v. State, 38 Ga. App. 362 (3) (144 S. E. 51) ; Cook v. State, 36 Ga. App. 582 (2) (137 S. E. 640), and cit.

3. Certain evidence was objected to as being “irrelevant and immaterial.” Such an objection is too general to present anything for consideration by this court. Herndon v. State, 38 Ga. App. 117 (4) (142 S. E. 695), and cit.; Kirkland v. Ferris, 145 Ga. 93 (4 a) (88 S. E. 680).

4. There is ample evidence to support the verdict, and no error was committed when the motion for a new trial was overruled.

Judgment affirmed.

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

McElreath & Scott, for plaintiff in error.

A. E. Wilson, contra.


text:
    19608.
    FITE v. WHITTEMORE.
    Decided May 14, 1929.

      7. A. Henderson, J. M. Lang, for plaintiff.

      J. G. B. Erwin, F. A. Cantrell, for defendant.
   Bloodworth, J.

The tax-collector of Gordon county issued an execution against Mrs. M. A. Foster for “State, county, and school tax.” This execution was levied upon personal property “as the property of Mrs. Kate Foster Whittemore,” and she filed an affidavit of illegality. Hpon the trial of the issue formed on the affidavit of illegality the trial judge passed the following order: “It being admitted in open court by the plaintiff in fi. fa. that Mrs. M. A. Foster was dead when the execution levied was issued, on motion of claimant the levy thereunder is dismissed and judgment rendered' against plaintiff for use of officers of court in the sum of $- costs. This 2-29-28.” The tax-execution issued after the death of Mrs. Foster was void. Ayer v. Chapman, 146 Ga. 608 (91 S. E. 548). The judge did not err in dismissing the levy, which was based on a void execution. While the execution in the case just cited was issued by the clerk of the city council for taxes due the city, the principle involved is applicable to the present case. See, in this connection, Miller v. Brooks, 120 Ga. 232 (47 S. E. 646) ; Equitable Building & Loan Association v. State, 115 Ga. 746, 748 (42 S. E. 87), and cit.

Judgment affirmed.

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


text:
    19625.
    WILSON v. THE STATE.
    Decided May 14, 1929.

      Lawrence 8. Gamp, J. Wilson Parker, for plaintiff in error.

      Glande G. Smith, solicitor-general, contra.
   Luke, J.

The special ground of the motion for a new trial in this case is based upon alleged newly discovered evidence. The supporting affidavit of the defendant and his counsel as to diligence merely states that they “did not know of the evidence set out in the amended ground of the motion for a new trial . . before the trial of the case herein stated, and that the same could not have been discovered by the exercise of ordinary diligence.” This was a mere conclusion of the affiants, without basic facts from which the court could judge whether or not they could have discovered the evidence by the exercise of ordinary diligence, and this ground of the motion for a new trial is defective. Hart v. State, 36 Ga. App. 673 (2) (137 S. E. 798); Taylor v. State, 132 Ga. 235 (3) (63 S. E. 1116); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178). Besides, in view of the fact that the evidence is impeaching and cumulative in its nature, and of the counter-showing made by the State, the judgment overruling’the motion for a new trial would not be reversed on this assignment in any event.

The evidence amply sustains the verdict, and for no reason assigned did the court err in overruling the motion.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    19626.
    Ross v. The State.
    Decided May 14, 1929.
    If, A. Woodward, Gordon W. Chambers, for plaintiff in error.

      W. Inman Curry, solicitor, contra.
   Bloodwortii, J.

The motion for a new trial is based on the general grounds only. The evidence authorized the verdict, no error of law is shown, and the court properly overruled the motion.

Judgment affirmed.

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


text:
    19630.
    Grayson v. The State.
    Decided May 14, 1929.

      E. A. Allen, J. C. Miner, for plaintiff in error.

      John 8. McClelland, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

1. In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. Penal Code (1910), § 954.

2. Where one is on trial for the offense of having intoxicating liquors in his possession in a described automobile at a designated point, evidence tending to show that he had such liquors in his possession at another place shortly before the particular transaction alleged in the indictment is admissible as a circumstance pointing to his guilt.

3. The evidence authorized the verdict, and for no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloockoorth, J., concur.


text:
    19631.
    Towns v. The State.
   Bloodworth, J.

1. “Under repeated rulings of the Supreme Court and of this court, a refusal to direct a verdict is never ground for a new trial.” Byrd v. State, 38 Ga. App. 682 (2) (145 S. E. 478).

2. “When a verdict approved by the trial judge is supported by any evidence, this court will not disturb it because of alleged insufficiency of evidence.” Johnson v. State, 33 Ga. App. 148 (125 S. E. 734).

3. Under the rulings in the foregoing cases and the facts as shown by the answer of the judge of the criminal court of Atlanta, who tried the ease, to the writ of certiorari, the judge of the superior court did not err in overruling the certiorari.

Decided May 14, 1929.

B. B. Shropshire, for plaintiff in error.

John S. McClelland, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.

Judgment affirmed.

Broyles, O. J., and Luhe, J., conour.


text:
    19644.
    HIGHTOWER v. THE STATE.
    Decided May 14, 1929.

      Joseph M. Lang, for plaintiff in error.

      John C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

The indictment alleges that the accused “then and there, unlawfully and with force and arms, did by automobile transport and convey Etta Lou Tate from her home in said county into the State of Tennessee to a hotel and room in Soddy, Tennessee, with knowledge and good reason to know of the immoral purpose of such transporting, said immoral purpose being to have sexual intercourse with said Etta Lou Tate, contrary to the laws of said State, the good order, peace, and dignity thereof.” To the indictment a demurrer was interposed which reads that “1. Said indictment fails to allege any offense under the laws of Georgia. 2. Said indictment fails to allege any offense in Gordon county, Georgia, and fails to allege any offense in which this court has jurisdiction. 3. The allegation that defendant did transport to a hotel in Tennessee the woman named is demurred to as immaterial and irrelevant.”

The court did not err in overruling the demurrer.

(а) ' The indictment sufficiently sets out an offense.

(б) The indictment alleges that the offense was committed in Gordon county, Georgia. The indictment was returned by the grand jury of Gordon county, and alleged that the offense was committed “in the county aforesaid,” and that Etta Lou Tate was transported “from her home in said county.”

(c) The words “into the State of Tennessee to a hotel and room in Soddy, Tennessee,” might have been omitted from the indictment, but when inserted therein they became material and relevant. See second division of this opinion and cases cited therein.

The plaintiff in error was convicted under an indictment based on the act of 1918 (Ga. L. 1918, pp. 267, 268); Park’Penal Code Supp. 1922, § 384 (a). A copy of the indictment appears above. The indictment need not have alleged that Etta Lou Tate was transported “into the State of Tennessee to a hotel and room in Soddy, Tennessee.” These words might have been left out of the indictment, but transporting is a necessary element of the offense charged, and where the prosecutor states the offense with unnecessary particularity, he will be bound by that statement and must prove it as laid. The Supreme Court, in Fulford v. State, 50 Ga. 593, quoting from Bishop’s Criminal Procedure, §§ 234, 235, said: “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which can not be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other.” And see Southern Express Co. v. State, 23 Ga. App. 67 (2), 71 (97 S. E. 550), and cit. Under the principle announced in the foregoing cases, the words, “to a hotel and room in Soddy, Tennessee,” could not be rejected as surplusage. There is no evidence to support this part of the indictment.

In addition to the foregoing, the case for the State was not complete; for while the indictment gave the name of the woman who was transported as “Etta Lou Tate,” and alleged that she was transported from “her home in said county,” neither of these allegations is supported by proof. The only woman mentioned in the evidence is “Mrs. Tate,” “Mrs. Jim Tate,” and there is no evidence to show that “Etta Lou Tate” and '“Mrs. Jim Tate” were one and the same woman. Nor is there any evidence to show that the woman in the case was transported from “her home,” which' was in Calhoun; but the evidence does show that she got in the car at her father’s home “up in the country,” something like three miles from Calhoun. The court erred in overruling the motion for a new trial.

As a new trial must result from the error stated, it is not necessary to consider the alleged error in the charge of the court.

Judgment reversed. Broyles,

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


text:
    19648.
    Searcy v. The State.
    Decided May 14, 1929.

      Thomas E. Latimer, II. B. Moss, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Luke, J.

Upon conflicting evidence the jury, as they had the right to be, were convinced that the defendant was guilty. The trial judge, in the exercise of his discretion, has given his approval of the conviction by overruling the motion for a new trial; and the motion being based only on the usual general grounds, this court can not interfere.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J. eonewr.


text:
    19653.
    WHITENER v. THE STATE.
    Decided May 14, 1929.

      A. II. Buriz, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Bloodworth, J.

(a) “In the absence of a timely motion for a mistrial? a new trial will not be granted because of questions propounded by the trial judge to a witness under examination. Whether the asking of the questions would have amounted to error requiring a reversal, had a motion for mistrial been promptly made, need not be decided.” Kay v. Benson, 152 Ga. 185 (2) (108 S. E. 779); Quarles v. State, 37 Ga. App. 520 (3) (140 S. E. 788); Edenfield v. State, 37 Ga. App. 628 (4) (141 S. E. 220).

(&) “Objections to the admission of testimony are insufficient where no specific ground of objection is stated. An objection on the ground that the testimony is ‘not competent/ or is ‘inadmissible/ is not sufficient.” Parker v. State, 28 Ga. App. 673 (4) (112 S. E. 908); City of Manchester v. Beavers, 38 Ga. App. 337 (2) (144 S. E. 11); Hayes v. State, 36 Ga. App. 668 (e) (137 S. E. 860); Wilson v. McConnell, 36 Ga. App. 767 (b) (138 S. E. 244); Manning v. State, 33 Ga. App. 610 (9) (127 S. E. 475); Legg v. Legg, 165 Ga. 314 (140 S. E. 868).

(c) “An assignment of error upon the admission of evidence must show not only in what respects the evidence was objectionable, but that the objection was urged at the time of its admission. It is not sufficient in a ground of a motion for a new trial to state that the court erred in admitting certain evidence ‘over timely objection/ and then, after setting out the evidence admitted, to allege that the admission of the evidence was error for certain specified reasons, where it is not further alleged in the motion that the evidence was objected to for such reasons at the time of its admission. Henslee v. Harper, 148 Ga. 621 (1) (97 S. E. 667); Pelham & Havana R. Co. v. Walker, 27 Ga. App. 398 (2) (108 S. E. 814).” Atlanta Life Ins. Co. v. Jackson, 34 Ga. App. 555 (2) (130 S. E. 378).

(d) “A ground of a motion for new trial based upon the admission of evidence should state what objection was made thereto when it was offered at the trial, and should affirmatively show that the objection was then urged; otherwise no question is raised for determination.” Hixon v. Myers, 144 Ga. 408 (2) (87 S. E. 475).

(e) “Relatively to the revising powers of this court, the jury are the exclusive judges of the credibility of the witnesses.” Rome Railroad Co. v. Barnett, 94 Ga. 446 (5) (20 S. E. 355). “The right of the jury to settle disputed issues of fact is supreme and exclusive.” Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218). “The jury in all cases must, in the process of arriving at the truth, determine what credit shall be given to each of the witnesses.” Haywood v. State, 114 Ga. 111 (39 S. E. 948); Jolly v. State, 5 Ga. App. 454 (63 S. E. 520) ; Chatman v. State, 8 Ga. App. 842 (70 S. E. 188); Unity Cotton Mills v. Hasty, 19 Ga. App. 588 (2) (91 S. E. 915), and cit.

Under the rulings in the foregoing cases and the facts of this case 'there is no merit in any of the special grounds of the motion for a new trial; the evidence supports the verdict; and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    19665.
    HERBERT v. THE STATE.
    Decided May 11, 1929.

      W. H. Hammond, for plaintiff in error.

      B. B. Marie, solicitor, contra.
   Bloodworth, J.

1. The motion for a new trial contains thirteen grounds including the three general grounds. Following the thirteen grounds, as they appear in the record, the judge makes the following statement: “The foregoing amendment set out in ground thirteenth of the amended motion for new trial is allowed as prayed, and the recitals of fact therein contained are hereby approved as true. Ordered that the said amendment together with the proceeding [preceding?] nine amended grounds of the amended motion for new trial be filed as a part of the record in the case in which the said amendments are entitled.” This entry approves the 13th ground only. Each of the special grounds, except the 13th, is based upon alleged errors in the charge, and to each of them is appended a note as follows: “The requested instruction set out in the foregoing (here is given the number of the ground) amended ground of the motion for new trial was refused except in so far as the same may be covered by the main charge. Said requested instruction was presented by the defendant to the court in writing before the jury retired to consider of their verdict; and the defendant avers that the said requested instruction in question was a legal and pertinent charge, and applicable to the facts of the case tried; and to the refusal of the court to give in charge to the jury the which requested instruction the defendant then and there excepted and here and now excepts, and assigns the same as error requiring the grant of a new trial.” This note does not amount to an approval of the special grounds of which it is made a part. “Grounds of a motion for a new trial must have the unqualified approval of the trial judge.” Goolsby v. State, 35 Ga. App. 167 (2a) (132 S. E. 245); Brazil v. City of LaGrange, 37 Ga. App. 500 (3) (140 S. E. 782); Haygood v. Clark Co., 27 Ga. App. 101 (107 S. E. 379). See, in this connection, Landrum v. Landrum, 145 Ga. 307 (2) (89 S. E. 201); Mims v. Mims, 151 Ga. 330 (106 S. E. 279); Hammond v. State, 34 Ga. App. 234 (128 S. E. 918). These nine special grounds not having been approved by the trial judge, this court is not called upon to pass upon them. However, we have examined each of these grounds, and when considered in the light of the evidence and in connection with the charge given, there is nothing in any of them that reqixires the grant of a new trial. The instructions given the jury not only cover clearly and accurately the issues raised in the case, but cover'substantially all the requests to charge shown by the motion for a new trial.

2. The 13th ground of the motion alleges that the court erred in admitting in evidence “as a confession” the following: “I asked the defendant if that was his whisky in'the jug which was sitting on the table, and he said it was.” This confession was objected to on the ground that it “was not freely and voluntarily made.” Whether or not the confession was freely and voluntarily made was submitted to the jury, and by their verdict they declared that it was, and their finding was approved by the trial judge, and, as there is evidence to support their finding, this court will not send the case back for another trial because of this ground. Moreover, there was other evidence to show the ownership of the whisky. The facts in this case clearly differentiate it from Allen v. State, 4 Ga. App. 458 (61 S. E. 840), relied on by plaintiff in error.

3. Tbe evidence supports the verdict and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19674.
    Arnold v. The State.
    Decided May 14, 1929.

      Powell & Dykes, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Luke, J.

1. Where an indictment contains two counts, one for selling, the other for possessing intoxicating liquors, it is not erroneous for the court to instruct the jury that the accused could not be- guilty of the offense of selling whisky without also being guilty of the other offense. Smith v. State, 38 Ga. App. 366 (2) (143 S. E. 925), and cit.

2. Where a verdict is imperfect in form, it is proper for the court to require the jury to complete it-before receiving it. Cook v. State, 26 Ga. 593 (5).

3. Where, on a trial for the offense of selling intoxicating liquor, there is evidence tending to show that the accused contracted such a sale and received the agreed price, but was intercepted by the sheriff before making and while about to make delivery, and this interference prevented the completion of the intended transaction, a verdict finding the accused guilty of an attempt to sell such liquor is not without evidence to support it.

4. The conviction of the defendant was amply authorized, and for no reason appearing from the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eonour.


author: Bkoyi.es, O. J.

text:
    19295.
    Atlantic Steel Co. v. Hartford Fire Insurance Co.
   Bkoyi.es, O. J.

This was a suit upon the terms of a “use and occupancy” clause of a policy of insurance. By consent the case was submitted to the trial judge, without the intervention of a jury, upon an agreed statement of facts, and a verdict and judgment were rendered in favor of the defendant insurance company. It was shown in the agreed statement of facts that an explosion had occurred in one of the several mills of the Atlantic Steel Company, which resulted in the closing of that particular mill for fifteen working days, and that the shutting down of the mill was covered by the “use and occupancy” clause of the policy. However, since a contract of insurance is one of indemnity, the burden was upon the plaintiff to show that the temporary closing of the mill had caused it an actual monetary loss (payment for the physical damage to the mill caused by the explosion having been made by the insurance company). The agreed statement of facts failed to show affirmatively that the plaintiff had sustained any actual monetary loss on account of the temporary closing of the particular mill in question, and the trial judge did not err in so finding. The refusal to grant a new trial was not error for any reason assigned in the motion for a new trial.

Decided May 15, 1929.

Jones, Evins, Powers & Jones, for plaintiff.

Spalding, MacDougald & Sibley, for defendant.

Judgment affirmed.

Jenkins, P. J., and Bloodworth, J., concur. .


author: Beoyxes, C. J.

text:
    19589.
    Manry v. Little.
    Decided May 15, 1929.
   Beoyxes, C. J.

1. A “demurrer, being a critic, must itself be free from imperfections.” Douglas &c. Ry. Co. v. Swindle, 2 Ga. App. 550 (4) (59 S. E. 600).

(a) “A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side without particularizing any of them in his demurrer. . . A special demurrer goes to the structure merely, and not to the substance, and it must distinctly and particularly specify wherein the defect lies. The party demurring must lay, as it were, his finger on the very point, otherwise the demurrer may not be noticed.” Martin v. Bartow Iron Works, 35 Ga. 320, 323.

2. Under the above-stated ruling a special demurrer in the instant case, attacking a paragraph of the petition “on the ground that said paragraph is a conclusion of the pleader and that said paragraph is vague and indefinite, and not plead with the particularity required by law,” is itself too vague and indefinite to raise any question for the consideration of the court. Darien Bank v. Clifton, 156 Ga. 65 (2) (118 S. E. 641).

3. The petition as amended set out a cause of action and was not subject to general demurrer, nor to any of the special grounds of demurrer interposed, and the court properly so held.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

John F. Echols, for plaintiff in error.

T. L. Slappey, Homer Watlcins, contra.


author: Beoyx.es, O. J.

text:
    19592.
    Butts v. City of Moultrie et al.

   Beoyx.es, O. J.

1. Under the section of the code which provides that a mother may recover for the homicide of a child, minor’ or sui juris, upon whom she is dependent and who contributes to her support, unless such child leave a wife, husband, or child (Civil Code of 1910, § 4424), a mother has no right to sue for the homicide of -her son where he leaves a wife or child, and, where she does so sue, her petition must affirmatively allege that her son left no wife or child, or it is subject to be dismissed on general demurrer.

(a) The allegations in the petition, that her son was eighteen years of age, that she was dependent on him for support, and that he contributed to her support, construed (properly) most strongly against the pleader, did not negative the existence of a wife or child at the time of the homicide. Lamb v. Tucker, 146 Ga. 216 (2) (91 S. E. 66) ; Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264).

2. The petition, properly construed (most strongly against the plaintiff), clearly discloses that the deceased, by the exercise of ordinary care, could have avoided the homicide.

Decided May 15, 1929.

L. L. Moore, M. D. Wilson, for plaintiff.

Waldo DeLoache, Hoyt H. Whelchel, for defendants.

3. Under the above-stated rulings the court properly dismissed the petition on general demurrer.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


author: Bboyles, C. J.

text:
    19595.
    Maxwell v. Mayor and Aldermen of Savannah.
    Decided May 15, 1929.

      N. J. Norman, I. O. Farthing, for plaintiff in error. John J. Bouhan, F. Ormond Hunter, contra.
   Bboyles, C. J.

Where a person charged? with the violation of certain ordinances of the city of Savannah was tried by the recorder of that city, evidence that the offenses were committed “at the corner of Gwinnett & West Broad streets,” without any proof that the place designated was in the city of Savannah, was insufficient to prove the venue; and the overruling of the petition for certiorari was error. Simpson v. Macon, 8 Ga. App. 535 (69 S. E. 1084) ; Garrett v. Atlanta, 152 Ga. 675 (110 S. E. 886).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    19597.
    Moore, for use, etc., v. Moultrie Banking Company.
    Decided May 15, 1929.

      L. L. Moore, Lawton & Cunningham, for plaintiff,
    cited: 81 Ga. 597, 599; 156 Ga. 65; 7 C. J. 400, 678; 4 N. E. 619; 25 Ga. App. 667; 135 Mass. 278; Id. 283; 142 N. Y. Supp. 387, 109 N. E. 1077; 68 Pac. 115; cases cited contra distinguished.

      W. G. Martin, for defendant,
    cited: 57 Am. Rep. 174; 203 Pa. 69; 215 N. Y. 726; 210 N. Y. 567; 52 A. L. R. 1298, 1326; 45 Fed. 163; 141 Mass. 231; 94 N. J. 152; Brady on Bank Checks, 276, 277; 196 Pa. 230; 31 App. D. C. 391; 85 Ohio St. 203; 51 Mo. App. 508; 56 Colo. 495; 27 Utah, 222; 35 Wash. 621; 43 Wash. 153.
   Broyles, C. J.

1. “Where one deposits money in a bank on general deposit, the bank immediately becomes the debtor of the depositor for the money deposited, and undertakes impliedly to pay that money either to the depositor or to some person to whom he directs it paid; and in order to discharge itself from this liability to the depositor, the bank must pay the money to the depositor or as directed by him. The liability can not be discharged in any other way.” Atlanta National Bank v. Burke, 81 Ga. 597, 600 (7 S. E. 738, 2 L. R. A. 96). “The bank in such case can not avoid liability by showing that it paid out the money in good faith, and believed that the person presenting the cheek was authorized by the depositor to sign it and draw out the money, when in fact he had not been so authorized.” Darien Bank v. Clifton, 156 Ga. 65 (118 S. E. 641).

2. The above-stated general rule is subject to the following exception: Where a bank has paid money on a check to a person to whom the drawer (the depositor) delivered the check with the intention that such person should receive the money, the bank is not liable for making the payment, although the person who procured the check perpetrated a fraud upon the drawer in obtaining it. 7 C. J. 678, § 400, and cit.

3. The controlling facts of the instant case, as disclosed by the evidence on the trial, are that the drawer of the check in question made it payable to the order of a woman whom he personally knew, an old acquaintance and a former client (the drawer being a lawyer), and that, although he mailed the check to an impostress who by correspondence had fraudulently led him to believe that she was his old acquaintance, he mailed it with the intention that the money should he paid to the woman of whom he had a mental picture when he icrote and mailed the check, to wit, his old acquaintance and former client. It follows that the case comes within the general rule, and that the bank was liable to its depositor (the drawer of the cheek) for paying the money to the impostress. The cases falling within the exception to the rule, cited in the brief of counsel for the bank, are distinguishable by their particular facts from this ease. The court erred in directing a verdict for the defendant bank.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19605.
    Chappell, deputy sheriff, v. Beavers.
    Decided May 15, 1929.

      Zach. Childers, R. L. Maynard, for plaintiff in error.

      C. R. McCrory, James W. Smith, contra.
   Broyles, C. J.

1. There is no sufficient assignment of error in the bill of exceptions either upon the exceptions pendente lite or upon the ruling therein complained of. It follows that the exceptions pendente lite can not be considered by this court.

2. The verdict was amply authorized by the evidence, and the overruling of the motion for a new trial (based upon the usual general grounds) was not error.

3. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error, that damages be awarded him because of bringing the case to this court for the purpose of delay only, is denied.

Judgment affirmed.

Luke a/nd Bloodworth, JJ., conour.


text:
    19607.
    Hill v. The State.
    Decided May 15, 1929.

      C. G. Battle, for plaintiff in error.

      John S. McClelland, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Broyles, C. J.

The facts set forth in the untraversed answer of the trial judge to the petition for certiorari show that the venue of the offense was proved and that the, verdict was amply authorized by the evidence. The overruling of the certiorari was not error.

Judgment affirmed.

Luke aaid Bloodworth, JJ., conour.


text:
    19609.
    BLEDSOE v. POTTS.
    Decided May 15, 1929.

      Smith .& Millican, for plaintiff in error.

      S. E. Dyer, A. Sidney Gamp, Willis Smith, contra.
   Broyles, C. J.

This was an action to recover damages for a personal injury. The plaintiff alleged that he was entitled to recover for pain and suffering, for diminished earning capacity, and for hospital and doctor’s bills, and upon the trial he introduced evidence in support of the allegations. It was error, therefore, for the court to instruct the jury, in effect, that the plaintiff was suing for general damages only, and to fail to give them any rule for ascertaining the amount to be fixed for hospital and doctor’s bills (counsel for the plaintiff in open court announced, in effect, that the item for diminished earning capacity had been abandoned), Dnder the charge of the court, the jurors, being mere laymen in the science of law, may have concluded that hospital and doctor’s bills were items of general damages and that the amount that the plaintiff was entitled to recover therefor was left to their enlightened consciences. Southern Ry. Co. v. O’Bryan, 112 Ga. 127 (37 S. E. 161); Macon Ry. &c. Co. v. Vining, 120 Ga. 511 (3), 515 (48 S. E. 232); Wadley v. Dooly, 138 Ga. 275 (7) (75 S. E. 153).

Dnder the facts of the instant case, the errors in the charge require another hearing of the case, and the refusal to grant a new trial was error.

Judgment reversed.

Dulce and Bloodworth, JJ., concur.


author: Beoti.es, O. J.

text:
    19612.
    Petty v. Louisville & Nashville Railroad Company.
   Beoti.es, O. J.

1. The following charge was not error for any reason assigned: “The law requires that one about to cross a railroad-track must use his or her sense of sight and hearing in the way that an ordinarily prudent person would under similar circumstances use his or her sense of sight and hearing in order to determine whether or not it would be safe to cross or go upon such track at that time and place. And this is true notwithstanding the railroad may by law be required to give signals of the approach of its trains to a crossing, or to do such other acts as would, if faithfully performed, render improbable, if not impossible, injury to any one crossing said track.” W. & A. R. Co. v. Ferguson, 113 Ga. 708, 711 (39 S. E. 306, 54 L. R. A. 802) ; Metropolitan St. R. Co. v. Johnson, 90 Ga. 500 (16 S. E. 49).

Decided May 15, 1929.

W. G. Martin, W. E. & W. G. Mann, for plaintiff.

Tye, Thomson & Tye, J. G. B. Erwin, G. N. King, for defendant.

2. Under section 4424 of the Civil Code of 1910, a child may recover for the homicide of his mother (the mother leaving no husband or other children) without showing that he was dependent upon her and that she contributed to his support. It follows that in this case the trial judge erred in charging the jury that before the plaintiff could recover he must prove that he was dependent upon his deceased mother and that she contributed to his support. However, that error was cured by a subsequent charge which informed the jury of the court’s error and gave the correct law on the subject.

3. In the light of the facts of the case and the charge as a whole, the other alleged errors in.the charge show no cause for a reversal of the judgment. This was not a close case. The verdict in favor of the defendant was supported by the great preponderance of the evidence, which clearly showed that the homicide sued for could have been avoided by the exercise of ordinary care on the part of the deceased. The refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    19616.
    MADDOX et al. v. TRAVELERS INSURANCE COMPANY et al.

    Decided May 15, 1929.

      Bryan & Middlebroolcs, Chauncey Middlebroohs, O. W. Russell, for plaintiffs.

      McDaniel, Neely & Marshall, Harry L. Greene, for defendants.
   Broyles, C. J.

This case arose under the workmen’s compensation law of Georgia. Mrs. Maddox and her minor child (a daughter) filed a claim with .the industrial commission, asking compensation on account of the death of Mr. Maddox (the husband of the claimant, Mrs. Maddox, and the father of the minor claimant). The case was heard before a single commissioner, who rendered a decision denying compensation. By appeal the ease was brought before the entire commission, which sustained the finding of the single commissioner; and then an appeal was taken to the superior court which affirmed the decision of the commission. The case is now here for review.

The undisputed evidence upon the trial in the superior court shows the following facts: Maddox was employed as a mechanic by the Franklin Motor Car Company and worked in their place of business in Atlanta. His work was repairing automobiles, and it often became his duty to go into the company’s “stock-room” to obtain certain “parts” necessary for his repair work. An employee named Muller was in charge of the stock-room, and a 16-year-old boy named Bradberry was his assistant. On the day of the accident Maddox and a mechanic named Benson went into the stockroom for the purpose of getting certain automobile parts necessary for their work. It was Muller’s or Bradberry’s duty to find the parts wanted and hand them to the mechanics. It was also Brad-berry’s duty to wrap up parts which were to be shipped out of town, and to tie the packages with twine. Wrapping twine was provided him, and he was accustomed to cut the twine with a small pocketknife of his own. A table was provided for his use in wrapping and tying the packages. When Maddox and Benson entered the room Bradberry found their parts and handed the parts to them. Maddox and Benson entered into conversation with each other, which apparently annoyed Muller (who was waiting on another employee at a window) and he told Bradberry to “get them out,” meaning for Bradberry to get Maddox and Benson out of the stockroom. In the meantime Bradberry was wrapping up a package at the table, and had the open knife in his hand, having just cut a piece of the twine with which to tie the package. When Muller ordered Bradberry to “get them out,” Benson immediately left the room. Maddox (a large and strong man) did not leave the room, but laughed at Bradberry and told him, in substance, that he was not big enough to put him out. Bradberry then reached across the table (the table being between them) and pushed or shoved Maddox, and Maddox then .ran around the table and tried to catch Bradberry, but Bradberry was running too (both laughing and playing), and it was a minute or two before Maddox caught him. Maddox then caught hold of Bradberry’s left wrist and began twisting it, at the same time pulling Bradberry towards the door, evidently intending to put Bradberry out of the room. During this friendly scuffle both man and boy slipped and fell against each other, and the open knife, still in the boy’s hand, in some unknown way, penetrated the heart of Maddox and caused his death.

“Under the workmen’s compensation law, an employee is entitled to compensation for injuries from accidents arising out of and in the course of the employment; that is, for such occurrences as might have been reasonably contemplated by the employer as a risk naturally incident to the nature of the employment, or such as, after the event, might be seen to have had its origin in a risk connected with the business -of the employment, and to have arisen out of and flowed from that source as a natural consequence.” U. S. Fidelity &c. Co. v. Green, 38 Ga. App. 50, 51 (142 S. E. 464). In the instant case, while possibly the evidence might have supported a finding that the fatal accident occurred in the course of the decedent’s employment, it would not have authorized a finding that it arose out of his employment. On the contrary, it clearly appears from the evidence that the unfortunate death of Maddox was brought about by his own acts in teasing Bradberry and in chasing him around the table and in playfully trying to eject him (Bradberry) from the room. Muller, being in charge of the stock-room,- had the authority to direct Maddox and Benson to leave the room after they had gotten the articles they needed; and he so directed through his assistant, Bradberry. Benson promptly obeyed the order. Maddox, however, in a spirit of levity or “horse-play,” defied the order and entered into a good natured and playful scuffle with Bradberry, which resulted in his death. The “horse-play” engaged in by Maddox and Bradberry was not such an act as could have been reasonably contemplated by their employer as a risk naturally incident to the nature of their employment. See, in this connection, Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881). The cases cited in the brief of counsel for the claimants are distinguished by their particular facts from the instant case. The superior court properly affirmed the decision of the commission denying compensation to the claimants.

Judgment affirmed.

Luke and Bloodtvorbh, JJ., concur.


text:
    19629.
    Roberts v. The State.
    Decided May 15, 1929.

      W. C. Hodges, O. C. Darsey, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court a refusal to direct a verdict is never error.

2. In the light of the facts of the case and the entire charge of the court, the alleged errors of commission and omission in the charge do not require a reversal of the judgment.

3. The evidence, while in sharp conflict, authorized the verdict, and the overruling of the motion for a new trial was not error for any reason assigned. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, C; J.

text:
    19635.
    Davis v. The State.
    Decided May 15, 1929.

      Hugh E. Combs, for plaintiff in error.

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

The bill of exceptions was certified on February 6, 1929, and was filed in the office of the clerk of the trial court on February 23, 1929. The filing having been done more than fifteen days after the date of the certification, this court .is without jurisdiction to entertain the ease. Tatum v. Trapnell, 30 Ga. App. 104 (117 S. E. 251), and cit.

Writ of error dismissed.

Luke and Bloodworth, JJ., conctir.


text:
    19636.
    SEAY v. THE STATE.
    Decided May 15, 1929.

      Shelby Myrich, for plaintiff in error.

      Waller G : llarlriige, solicitor-general, Julian Hartridge, contra.
   Luke, J.

The indictment charges James A. Seay with committing assault with intent to murder by shooting at Thomas Hamilton with a pistol. The jury found Seay guilty of the offense charged and fixed his sentence at two years, with a recommendation that he be punished as for a misdemeanor. Besides the usual general grounds, there are four special grounds, the first three complaining of the court’s failure to give certain instructions to the jury, and the fourth of a charge given.

On the night of May 30, 1928, the colored brethren of St. Paul’s A. & M. E. Church were giving an entertainment in the nature of a “moot trial” at the Masonic Hall on Gwinnett Street in the City of Savannah. The Bev. James Seay and Thomas Hamilton were both members of said church. They had duties to perform on that occasion, Seay as ticket-taker, and Hamilton as judge of the moot court. When the “judge” started to enter the door, Seay, who claims he had orders to let no one without a ticket enter, demanded that, Hamilton produce his ticket. The “judge” swears that he thought this a joke, and he shoved Seay aside and went in the door. Hamilton testifies that Seay challenged him to “go down stairs and fight it out,” but that he declined the invitation; that after the performance was over, and while witness was in the ante-room changing his costume, the defendant entered, shook a stick at him, and threatened to kill him if he, the defendant, did not get satisfaction for what Hamilton “said at the door;” that one Hampton (Haslam?) attempted to push Seay out of the door; that Seay had a pistol, and that witness got as close to him as he was to the solicitor; that when the defendant had been almost shoved out of the door, he shot witness full in the face with a pistol; that witness had no pistol then, and did not own one; that witness was “laid up” six or eight weeks; that witness never cursed Seay, and that the only curse words uttered' were used by the latter; that Seay was a member of the church, but not its pastor. Hamilton’s age was forty-two, and Seay’s sixty-four. A physician testified that the bullet hit Hamilton in the chin and took away two pieces of the bone.

Iverson Haslam testified for the State that Seay entered the anteroom where Hamilton was undressing, accused the latter of cursing him vilely, and demanded that he “take it back;” that witness said, “If he called you that he will take it back;” that Hamilton did not open his mouth; that the defendant struck Hamilton with a stick and drew his pistol, and that while witness was pushing Seay out of the door Seay shot Hamilton; and that witness did not see Hamilton with a pistol at any time that night. Oscar Woodruff, sworn for the State, testified that Seay entered the ante-room with a stick in his left hand and his right hand in his coat-pocket, and cursed Hamilton and told him that he would have to take back what he said or he would kill him; that witness grabbed Seay around the waist and tried to throw him out of the door; that Hamilton tried to get through the door, and Seay shot him with the pistol; that witness was manager of the show, and had instructed Seay not to allow any one to enter without a ticket except the performers; that Seay should have known the performers, as he had been working with them; and that he did not see Hamilton with any sort of weapon. Willie Richardson, sworn for the defendant, testified that he heard the defendant say, “Don’t come on me Hamp;” that another man had hold of the defendant; that a man was walking in front of the defendant with a drawn pistol, saying, “I will fix him;” that witness did not know the man with the pistol; that, so far as he saw, Seay did not have a pistol; and that at this juncture witness departed. William Cone, sworn for the defendant, testified that he saw Seay enter the ante-room, and heard him say, “Hamilton, don’t come on me;” that he then saw Hamilton coming towards Seay with a pistol in his hand; that some one grabbed Seay around the waist, and Hamilton said, “I will fix him;” that the pistol was pointed towards witness, and that just as he turned to leave, he heard a pistol fire; that he did not know who shot; that witness did not know whether Seay had a pistol or not, but that he did not see him with one; that all he saw in Seay’s hand were some papers. Several witnesses testified to Seay’s character for peaceableness.

The defendant stated that he had been instructed to let no one in the show without a ticket, and that he told Hamilton this; that Hamilton said, “I am boss of the play, and I will go in anyway,” and got mad and shoved defendant aside and entered in spite of defendant’s resistance; that Hamilton then said, “I will settle this thing with you after the play is over;” that the defendant thought no more about the matter until he went to the ante-room to make his report about the tickets; that when he entered the ■room Hamilton looked mad and started towards him; that Haslam grabbed him, and Hamilton said, “We got him, and I am going to fix you for what you did to me at the door;” that, while Haslam held the defendant, Hamilton pulled his pistol and pointed it at him (defendant); that Hamilton was younger and stronger than the defendant, and he was afraid of Hamilton; that he knew that Hamilton was going to try to shoot him or try to kill him, and that he pulled his pistol and shot in self-defense; that the reason he (defendant) had a pistol was that he knew he would have to go home late at night, and there had been a lot of people held up in that section.

Special ground 4 of the motion for a new trial alleges that the court erred in charging the jury as follows: “If you believe, on the other hand, that an hour and a half after the trouble at the door, defendant went to the dressing-room with a pistol in his right coat-pocket and his hand on it, and he shot an unarmed man at that time and at that place and did not shoot in self-defense, then it would be your duty to convict him.” This charge was error for the reason that the jury should have been given the discretion, under proper instructions from the court, to convict of a lesser offense included in the higher felony charged, if they believed that the evidence failed to show a specific intent to kill. See in this connection, Posey v. State, 22 Ga. App. 97-103 (95 S. E. 325), and cit.; Lewis v. State, 14 Ga. App. 503 (81 S. E. 378).

Judgment reversed.

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


text:
    19645.
    Middleton v. The State.
    Decided May 15, 1929.

      Ralph Dawson, O. G. Darsey, Tyson & Tyson, for plaintiff in error.

      J. T. Grice, solicitor-general, M. Price, contra.
   Broyles, C. J.

1. A motion to continue a case, based upon the illness of leading counsel, is addressed to the sound discretion of the court; and where such counsel is present and personally makes the motion, the court may consider “his physical appearance and the mental and physical vigor displayed in making the motion, in determining whether the ends of justice require a continuance of the case.” Dale v. Beasley, 141 Ga. 594 (81 S. E. 849) ; Rogers v. State, 30 Ga. App. 636 (118 S. E. 757) , and cit. Under this ruling and the facts of the instant case, the refusal to continue the case was not error. Moreover, upon the hearing of the motion, the movant failed to testify that he expected to have the ’services of his leading counsel at the next term of the court, or that his application for a continuance was not made for the purpose of delay only.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, G. J.

text:
    19663.
    Bradley v. The State.
    Decided May 15, 1929.
   Broyles, G. J.

1. Although (as admitted in the brief of the solicitor-general) the indictment in this case, which charged the offense of perjury, was “grammatically and rhetorically defective,” it was sufficient to withstand the demurrer interposed, and the overruling of the demurrer was not error.

2. The evidence amply authorized the verdict, and the court properly overruled the motion for a new trial, which contained the usual general grounds only. Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Rosser & Shaw, for plaintiff in error.

M. Neil Andrews, soliciior-general, Dean Owens, contra.


text:
    19666.
    Hill v. The State.
    Decided May 15, 1929.

      Powell & Dykes, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Broyles, C. J.

1. A ground of a motion for a new trial, complaining that the charge of the court was argumentative, or misleading and confusing to the jury, is too general to be considered, where it fails to allege wherein it was misleading, confusing, or argumentative. Wade v. Eason, 31 Ga. App. 256 (120 S. E. 440); Trammell v. Shirley, 38 Ga. App. 710, 714 (145 S. E. 486).

2. In none of the excerpts from the charge of the court, complained of in the motion for a new trial, did the court express an opinion upon the facts of the case.

3. Under the above-stated rulings the special grounds of the motion for a new trial are without merit.

4. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


author: Jenkins, P. J.

text:
    19174.
    Southern Surety Company et al. v. Byck et al.

   Jenkins, P. J.

1. The findings of fact of the industrial commissioner before whom the instant claim for compensation under the workmen’s compensation law was heard are supported by the evidence, and this court is without authority to disturb the award of compensation to the claimant for the period of his disability.

2. By section 26 of the workmen’s compensation act (Ga. L. 1920, p. 167; Miehie’s Annotated Code, 1926, § 3154 (26) ), the period during which an employer is required to furnish medical attention to an injured employee is limited to “not exceeding thirty days after an accident,” and by that section and the next succeeding section the pecuniary liability of the employer for “medical, surgical and hospital service” is limited to $100. Lumbermen’s Mutual Casualty Co. v. Chandler, 162 Ga. 244 (133 S. E. 237). While, by the provisions of section 26 above mentioned, an employer may “at his own option,” after the expiration of thirty days, continue t'o furnish medical treatment to the employee, and the employee is required to accept “such surgical and hospital service and supplies as may be deemed necessary by said attending physician or the industrial commission,” the pecuniary liability of the employer for such services “when ordered by the commission ” is, by section 27 of the act, expressly limited to $100, and in the instant ease there is no proof tending to show that the employer consented to the continuation of medical treatment for the employee for a period longer than ■thirty days, or that lie agreed to become liable for a greater amount than $100.

Decided May 15, 1929.

3. The provisions of section 2 (e) of the workmen’s compensation act, which require that “all hernia, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of employment, shall be treated in a surgical manner by radical operation,” must be taken as subject to the provisions of sections 26 and 27 which limit the liability of the employer for any such ireatxnent to a period of thirty days following the accident, and the sum of $100.

4. Under the foregoing rulings, the order of the commission, in so far as it awarded compensation to the claimant for the period of his disability, was authorized, but in so far as it directed the payment of “reasonable medical, surgical and hospital expenses incurred in this case,” it was not authorized. Accordingly, the judgment of the court below affirming the award will be affirmed, with direction that the award be amended so as to provide for the payment of the claimant’s medical and hospital expenses for the period of thirty days following the accident, not exceeding the sum of $100.

Judgment affirmed, with direction.

Stephens and Bell, JJ., oonowr.

Anderson, Cann & Gann, McDaniel, Neely & Marshall, Harry L. Greene, for plaintiffs in error.

Eravitch & Wiseman, contra.


text:
    19213.
    NEWTON v. CITY OF MOULTRIE.
    Decided May 15, 1929.

      Hill & McDlvey, Dowling & DeLoache, for plaintiff.

      Hoyt H. Whelchel, for defendant.
   Jenkins, P. J.

The allegations of the petition show: that the City of Moultrie constructed a steam-plant for the purpose of generating electricity and pumping water to supply its citizens with lights-and water; that thereafter it leased the electric-light plant to Baker County Power Company, but retained the water system, and reserved such use of the steam-plant as was necessary to pump water. The power company owned and operated a hydroelectric plant, and the steam-plant thus leased from the city was used only in emergencies. It was so constructed that when put in operation, either to pump water or to generate electricity, the electric current from the dynamos attached to the steam-plant went out over the lines of the power company outside the City of Moultrie, unless prevented from doing so by the use of a switch at the plant. The power company and the city jointly employed a superintendent and a fireman of the steam-plant, the superintendent being paid by the city, the fireman by the power company, but each of them being subject to the orders of both the city and the company. A minor employed by the power company was killed by reason of the alleged negligence of the superintendent in turning the current from the steam-plant onto the lines of the company outside the city, in pursuance of the company’s business in serving its outside customers, after having been instructed by the power company not to do so. The instant suit is brought against the city by the father of the deceased employee, to recover for the homicide. The court sustained a general demurrer to the petition. It is insisted by the city that the act of the superintendent was without the corporate powers of the city, and, therefore, ultra vires; and that it was not within the scope of his employment as a servant of the city.

1. Municipal corporations are not liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskilful performance of their ministerial duties, they are liable. Civil Code (1910), § 897. Thus, to hold a chartered city liable for the negligent act of -its servant or agent, the act complained of must be both within the corporate powers of the municipality and within the scope of the employment of the servant or agent. Collins v. Macon, 69 Ga. 542; McDonald v. Butler, 10 Ga. App. 845, 847 (74 S. E. 573).

2. As a general rule, a municipal corporation can not, without express or implied authority granted in its charter, exercise its corporate powers beyond the limits of the municipal boundaries. Langley v. Augusta, 118 Ga. 590 (45 S. E. 486, 98 Am. St. R. 133); Mayor &c. of Gainesville v. Dunlap, 147 Ga. 344 (2) (94 S.E. 247).

3. Since the only authority conferred upon the defendant municipality to erect and maintain an electric-light plant is contained in the general welfare clause of its charter, and since) under the ruling made by the Supreme Court in Mayor &c. of Gainesville v. Dunlap, supra, such authority does not extend beyond its corporate limits, the act of the joint superintendent in turning the current from the steam-plant onto the lines of the power company outside the city, in pursuance of the company’s business in serving its outside customers, even if within the scope of the superintendent’s employment as a servant of the city (see Hotel Equipment Co. v. Liddell, 32 Ga. App. 590, 124 S. E. 92), was not within the scope of the corporate powers of the city, such as could render it liable for an improper performance of its ministerial duties. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    19223.
    Newton v. Oglesby.
    Decided May 15, 1929.
   Jenkins, P. J.

1. Tlie motion to dismiss the writ of error, which is based upon the alleged failure of the movant to present for approval, within the time fixed by order of court, a brief of the evidence adduced on the trial, must be denied, since it nowhere appears from the record that any such question was raised or passed upon by the court below. Ga. L. 1911, p. 143, § 3; Park’s Code (1914), § 6090(a).

2. In the instant suit in trover, while there was no proof on behalf of the plaintiff going to show a demand for the property and a refusal of the defendant to surrender it, there was proof of circumstances which authorized the jury to infer that after the mules which were the subject matter of the suit had been turned into defendant’s lot he converted them to his own use, and that this conversion took place prior to the bringing of the suit, so as to dispense with the necessity for a demand. See, in this connection, Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (1, 2) (52 S. E. 802); Young v. Durham, 15 Ga. App. 678 (5) (84 S. E. 165). Accordingly, since the verdict of the jury has the approval of the trial judge, and the only grounds of the motion for new trial are the usual general grounds, the judgment of the court below overruling the defendant’s motion for new trial can not be disturbed. Judgment affirmed.

Stephens and Bell, JJ., concur.

B. G. Weathers, D. A. Bragg, for plaintiff in error.

L. P. Strickland, contra.


text:
    19228.
    Miller v. Griffin, executor.
    Decided May 15, 1929.
   Jenkins, P. J.

1. Where the defendant in a suit on a promissory note defends by pleading an alleged alteration in the instrument after execution, he must allege and show that the instrument sued upon was intentionally altered by a person claiming a benefit under it, in a material part thereof, and with intent to defraud him. Civil Code (1910), § 4296. In the instant case, while it is charged in the language of the statute that the instrument sued upon had been altered by a person claiming a benefit thereunder, and with intent to defraud the defendant, the alleged alteration relied upon consisted of the following words: “deed given on 61 acres more or less to secure this claim drawing interest from Dec. 25, 1914, to Dee. 25, 1915,” which words, in the language of counsel for the plaintiff in error, were “written in ink after the printed form in the note in the left-hand corner.” The quoted language amounts to nothing more than a mere memorandum purporting to state when the note bore interest and what it was secured by, and it can not be said that such writing, embodied in the left-hand corner of the paper, could amount to a fraudulent attempt to alter materially the terms of the obligation. Accordingly, the court properly disallowed evidence in support of the plea setting up a fraudulent and material alteration of the terms of the agreement.

2. There was proof on behalf of the defendant from which the jury might have found that the payments claimed by him, and not credited on the note, had been made. Accordingly, while the evidence ^demanded a finding in favor of the plaintiff upon the question of liability on the note, the court erred in directing a verdict for the full amount sued for.

Judgment reversed.

Stephens and Bell, JJ., concur.

A. B. Taylor, Willis Smith, for plaintiff in error.

Smith & Millican, contra.


text:
    19260.
    OTWELL v. THOMPSON
    Decided May 15, 1929.

      Vandiviere & Tallant, for plaintiff in error.
   Jenkins, P. J.

1. A discharge in bankruptcy releases a bankrupt from all of his provable debts “except such as . . have not been duly scheduled in time for proof and allowance, with the name of the creditor, unless such creditor had notice or actual" knowledge of the proceedings in bankruptcy.” Bankruptcy act, § 17; 30 Stat. 544; Bank of Wrightsville v. Pour Seasons, 21 Ga. App. 453 (94 S. E. 649); Brooks v. Pitts, 24 Ga. App. 386 (2) (100 S. E. 776).

2. In the instant case the defendant was adjudged a bankrupt on April 28, 1924. He was discharged on July 25, 1925. The defendant admitted that the plaintiff’s claim was not scheduled, but testified that before filing his application for discharge, on some undisclosed date,'he had a conversation with the plaintiff in which the plaintiff “said to me that he had a good mind to fight my discharge.” The plaintiff testified that he was a subscriber to the newspaper in which the defendant’s bankruptcy notices were published. He further testified: “I don’t remember that I saw this notice, but I might have seen the notice of creditors’ meeting or for discharge. I didn’t get notice of either from the referee. I didn’t have time to file proof of claim if I saw creditors’ notice.” He admitted that he talked to the defendant, but did not remember whether it was before or after the defendant’s discharge in bankruptcy. The jury found in favor of the plaintiff.

The defendant having admitted the signing of the note sued on as security, and that the claim was not scheduled in bankruptcy, it was incumbent upon him to show notice or actual knowledge of the bankruptcy proceedings on the part of the plaintiff in time for proof and allowance of his claim. While the plaintiff admits that he might have seen the notice of creditors’ meeting or for discharge, he further testified that he did not thereafter have time to file proof of claim. If the jury accepted this statement as true, the notice which the plaintiff testified he might have seen must necessarily have referred to the discharge notice, and must have been after the period within which he might prove his claim, or so close thereto as prevented action on the part of the plaintiff. The jury having found that the defendant failed to carry the burden of showing notice or knowledge on the part of the plaintiff, and their finding being approved by the trial judge, this court can not say that the verdict is absolutely unauthorized by the evidence, and it is, therefore, without power to set it aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    19318.
    Kiohards v. Mabry.
    Decided May 15, 1929.

      Joseph A. Morris, for plaintiff in error.

      Carl B. Copeland, G. N. Bynum, contra.
   Bell, J.

There being no bona fide effort to brief the evidence in this case, the so-called brief of evidence being a mere stenographic report of what occurred upon the trial, including all questions propounded to and answered by witnesses, objections to evidence, and the various rulings of the court thereon, it will not be considered as a brief of evidence, and the evidence will not be reviewed by this court. Accordingly, since the writ of error presents no question that can be intelligently considered and passed upon without reference to the evidence, the judgment of the court below must be affirmed. Civil Code (1910), § 6093; Bishop v. Brown, 138 Ga. 738 (75 S. E. 1119) ; Roberts v. Rowell, 152 Ga. 97 (108 S. E. 466) ; Whitten v. Bacon, 165 Ga. 151 (140 S. E. 287); Jackson v. Dorsey, 26 Ga. App. 372 (4) (106 S. E. 210); O’Farrell v. Templeman, 39 Ga. App. 222 (146 S. E. 914).

Judgment affirmed.

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


text:
    19336.
    MORRISON v. COLUMBUS TRANSPORTATION CO.
    Decided May 15, 1929.

      G. Y. Tigner, for plaintiff. F. U. Garrard) for defendant.
   Bell, J.

(After stating the foregoing facts.) Under the allegations of the petition, it could not be inferred that the negligence of the defendant was the proximate cause of the plaintiff’s injury, and it was therefore proper to sustain the demurrer and dismiss the petition. Perry v. Central Railroad, 66 Ga. 746 (4, 5); Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. R. 25); Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Postal Telegraph Co. v. Kelly, 134 Ga. 218 (67 S. E. 803); Beckham v. Seaboard Air-Line Ry., 127 Ga. 550 (2) (56 S. E. 638, 12 L. R. A. (N. S.) 476); Shaw v. Macon, 6 Ga. App. 306 (64 S. E. 1102); Harper v. Fulton Bag & Cotton Mills, 21 Ga. App. 322 (94 S. E. 286); Higginbotham v. Rome Ry. & Light Co., 23 Ga. App. 753 (99 S. E. 638); General Fire Extinguisher Co. v. Daniel, 25 Ga. App. 282 (103 S. E. 257); Means v. Barnesville, 28 Ga. App. 671 (3) (112 S. E. 739).

The case as laid does not fall within the principle of the decisions relied on by the plaintiff in error, including Spires v. Goldberg, 26 Ga. App. 530 (106 S. E. 585); McAfee v. Martin, 34 Ga. App. 247 (129 S. E. 168); Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155), affirmed in 166 Ga. 121 (142 S. E. 658).

Judgment affirmed.

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


text:
    19430.
    Darnell v. Toney.
   Bell, J.

1. No question as to the applicability of the statute of limitations or as to misjoinder'of parties or causes of action can be raised by a general demurrer to the petition; but each of such matters, if relied on, must be made the subject of special demurrer or special plea, according to whether the facts justifying such objection appear upon the face of the petition or depend upon extraneous proof. See, as to the statute of limitations, Small v. Cohen, 102 Ga. 248 (3) (29 S. E. 430);

Smith v. Central of Georgia Ry. Co., 146 Ga. 59 (90 S.E. 474); and as to misjoinder, Georgia R. &c. Co. v. Tice, 124 Ga. 459 (2) (52 S. E. 916, 4 Ann. Cas. 200); Riley v. Royal Arcanum, 140 Ga. 178 (1 b) (78 S. E. 803) ; Citizens & Southern Bank v. Union Warehouse Co., 157 Ga. 434 (7) (122 S. E. 327).

2. This suit was against an administrator, to recover damages for the intestate’s breach of a contract to make a will devising to the plaintiff specific real estate. The person who was administrator was also made a party defendant, and judgment was prayed against him upon allegations to the effect that he had knowingly and intentionally caused the intestate to commit the breach. A demurrer to the petition was filed by such individual defendant upon the following grounds: (1) No cause of action set forth; (2) cause of action, if any, barred by the statute of limitations; (3) misjoinder of parties defendant; and (4) misjoinder of causes of action; and upon a number of additional grounds, objecting to certain portions of the petition for want of sufficient particularity, and making similar criticisms of the petition. The court passed the following order: “Upon consideration the general demurrer is sustained and petition of plaintiff dismissed.” Held:

(a) The order is construed as referring only to the ground of the demurrer in which it was contended (generally) that the petition failed to set forth a cause of action, and as containing no ruling as to whether the cause of action was barred by limitation, or disclosed a misjoinder of parties or of causes of action, or as to whether the petition was otherwise defective, all of such latter questions depending necessarily upon grounds of demurrer that were special and not general in character.

(&) Where a judgment on demurrer expressly or by reasonable construction is limited to the general grounds, the special grounds will not be considered on review, but will be left to the subsequent determination of the trial court. Price v. Ketchum, 29 Ga. App. 179 (115 S. E. 32).

(c) “It is actionable maliciously and without justifiable cause to induce one to bréale his contract with another to the damage of the latter.” Luke v. DuPree, 158 Ga. 590 (124 S. E. 13). The petition set forth a cause of action, and it was therefore error to sustain the general demurrer.

3. This case is unlike the case of Herbener v. Boston Oil Co., 17 Ga. App. 437 (87 S. E. 607), since in the instant case it does not appear that the court passed upon any except the general ground of the demurrer; and it is also distinguished from such cases as Small v. Cohen, supra, because the present plaintiff in error (who was the plaintiff in the court below) expressly challenges the right of the defendant to invoke the statute of limitations except in the proper manner. Nor would it be permissible here to apply the rule laid down in Crittenden v. Southern Home Bldg. Association, 111 Ga. 266 (5) (36 S. E. 643), to the effect that where a demurrer is based on several grounds, some but not all of which are sustained, the judgment will be affirmed if any of the grounds were good, irrespective of the validity of the grounds sustained. In that case the petition, differently from the petition in the present case, was subject to general demurrer; and the ruling there announced was later limited by the Supreme Court to the “special facts upon which it was based.” Linder v. Whitehead, 116 Ga. 206 (2) (42 S. E. 358). See also McSwain v. Edge, 6 Ga. App. 9 (2) (64 S. E. 116); Willingham v. Glover, 28 Ga. App. 394 (111 S. E. 206).

Decided May 15, 1929.

Joseph M. Lang, for plaintiff.

J. Q. B. Erwin, J. H. Paschall, for defendants.

Judgment reversed.

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


text:
    19437.
    CAMERON v. MEADOR-PASLEY COMPANY.
    Decided May 15, 1929.

      Q. W. Foy, for plaintiff in error. Homer Beeland, contra.
   Bell, J.

Meador-Pasley Company, payee, brought suit against M. R. Cameron, maker, upon a note, to which the defendant filed a plea of usury and pajinent. Certain of the allegations relating to usury were stricken on demurrer, and after final judgment in favor of the plaintiff the defendant brought the case to this court.

The defendant, who, as a merchant, had been adjudicated a bankrupt, desired that the plaintiff and another of his old creditors should lend him a sufficient amount of money to purchase from the trustee the stock of merchandise of which he was the owner at the time of his bankruptcy. The plaintiff and the other creditor agreed to lend the money, provided the defendant would give notes for the loans advanced by each respectively and would include therein the old indebtedness to each as listed in his petition in bankruptcy. This was assented to, and the agreements were executed accordingly. When sued for an unpaid balance of the note which he gave to the plaintiff, the defendant contended that the note was usurious in so far as it included the amount which he had owed to the plaintiff at his adjudication as a bankrupt.

There was no merit in this contention. “Usury is the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful interest.” Civil Code (1910), § 3427. “It shall not be lawful for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever.” Civil Code (1910), § 3436. The defendant’s promise to pay the bankrupt debt did not constitute usury within the meaning of the law. The debt was an existing one, and this would have been true even though the defendant had received a discharge in bankruptcy, as to which the plea -is silent. The promise with reference to such indebtedness was merely to extend the original liability, and not to create a new one. A promise to pay a debt which has been discharged in bankruptcy is alone a sufficient consideration for a promissory note by the debtor for the amount thereof. Weatherly v. Hardman, 68 Ga. 592 (1); Monroe v. Martin, 137 Ga. 262 (73 S. E. 341); Civil Code (1910), § 4386. A promise by a debtor made after his adjudication as a bankrupt, but before his discharge, to pay a previously existing debt is not impaired by his subsequent discharge. Moore v. Trounstine, 126 Ga. 116 (54 S. E. 810, 7 Ann. Cas. 971); Dicks v. Andrews, 132 Ga. 601 (64 S. E. 788, 16 Ann. Cas. 1070).

Since the defendant’s promise to pay the antecedent debt had a full and complete consideration in the debt itself, it could not be said that the making of such promise was an addition to the interest upon the loan, the amount of which also was included in the note. The lending of the money by the plaintiff furnished a motive for the defendant’s act in giving the new promise, and in like manner the giving of such promise furnished the motive for the act of the plaintiff in making the loan, but it would be stretching the usury laws to an unreasonable length to hold that an otherwise valid loan of money is infected with usury merely because it is made upon condition that the borrower will revive an antecedent obligation, whose only infirmity is that for some reason, not illegal, it has become unenforceable; but, as we have said, the prior obligation in this case does not' appear even to have bq^ come unenforceable, no discharge in bankruptcy having been obtained. See further, in this connection, Bank of Elberton v. Vickery, 20 Ga. App. 96 (92 S. E. 547); Fairmont Creamery Co. v. Collier, 21 Ga. App. 87, 90 (94 S. E. 56); Beasley v. Padgett, 28 Ga. App. 268 (4) (110 S. E. 739); Shumate v. Ryan, 127 Ga. 118 (56 S. E. 103).

The present case is to be distinguished from such cases as Bishop v. Exchange Bank, 114 Ga. 962 (2) (41 S. E. 43), Winder National Bank v. Graham, 38 Ga. App. 552 (144 S. E. 357), and Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (1, 2) (132 S. E. 221). In the first two of these cases the exaction was of something as to which the promisor had no obligation, — as the payment of a debt of a third person, — and in the third case the question was whether the provision of the contract relating to services to be performed was a scheme or device to evade the laws against usury.

Judgment affirmed.

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


text:
    19436.
    Cameron v. Dougherty-Little-Redwine Co.
    Decided May 15, 1929.
   Bell, J.

This case is controlled by the decision this day rendered in Cameron v. Meador-Pasley Co., ante, 712.

Judgment affirmed.

Jenkins, P. J., wnd Stephens, J., concur.


text:
    19262.
    Mitchell, executrix, v. Clark, next friend, etc.
   Bell, J.

1. In the absence of an express agreement to do so, a landlord is under no duty to repair a patent defect in the rented premises where its existence was known to the tenant at the time the rent contract was entered into; and subsequent notice by a tenant of the existence of such a defect would not place upon the landlord any duty of inspection or repair. Aikin v. Perry, 119 Ga. 263 (3) (46 S. E. 93); McGee v. Hardacre, 27 Ga. App. 106 (1, 3) (107 S. E. 563).

2. A member of the tenant’s family, occupying the premises in his right, can claim no greater duty or obligation on the part of the landlord as to making repairs than the tenant himself could have claimed under like circumstances, although, where the landlord has in fact been guilty of negligence in failing to make repairs and is sued for injury alleged to have been caused thereby, the possible defenses open to him may vary according to the degree of care with which the plaintiff was accountable. Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (2) (118 S. E. 694) ; Williams v. Jones, 26 Ga. App. 558 (106 S. E. 616); 36 C. J. 204, 227.

Decided May 18, 1929.

3. Accordingly, where in a contract for the renting of two rooms in one portion of a dwelling-house it was agreed that the tenant should have the right to use a bathroom, toilet, and sink in another portion of the house, and to that end was granted the privilege of using a third room as a passageway between the two portions thus rented, but in the malting of the contract the tenant was informed by the landlord that this room was in a bad state of repair and that the use of it would be attended with danger, and there was no agreement as to repairing it, the transaction was one wherein, as to the third room, the premises were accepted as they were, and the landlord was relieved of any duty of making repairs. Thus, in a suit by an infant child of the tenant, through another as next friend, for injuries caused to the child by the falling of a mantel in such room, the petition failed to show any breach of duty or negligence on the part of the landlord, and the plaintiff therefore was not entitled to recover, irrespective of whether the plaintiff child, on account of its tender years, should not have been charged with any failure to exercise care for its own safety. The petition failed to set forth a cause of action, and it was error not to sustain the general demurrer thereto.

Judgment reversed.

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

Craighead & Craighead, William C. Henson, for plaintiff in error.

Frank T. Grizzard, H. FJSharp, contra.