author: Bell, J. Bell, J.

text:
    19148.
    CARROLL v. ÆTNA LIFE INSURANCE COMPANY et al.

    Decided December 14, 1928.
    Rehearing denied February 21, 1929.

      Colquitt & Conyers, Sidney Smith, for plaintiff. •

      Bryan & Middlebrooks, for defendants.
   Bell, J.

This was a claim for compensation by the widow of William H. Carroll. The industrial commission denied the claim, and, after unsuccessfully appealing to the superior court, the claimant brought the case to this court.

Mr. Carroll, an employee of Atlantic Ice & Coal Corporation, was required by his employer to make a trip from Atlanta, Georgia, to Jacksonville, Florida, on business for the company and it was agreed that he should go by automobile and use his own car. He left Atlanta on the morning of July 24, and was killed at about 6 o’clock that afternoon in a collision with a freight-train at a public road crossing near Alma, in Bacon county, Georgia. The insurance carrier denied liability "upon the ground that his death was the result of his own violation of a penal statute of this State, as follows: “Upon approaching an intersecting highway, bridge, railroad crossing, dam, sharp curve, dugway or deep descent, or in traversing such intersecting highway, bridge, railroad crossing, dam, sharp curve, dugway or descent, the operator of a motor vehicle or motorcycle, shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour.” Ga. L. 1921, pp. 256, 260; Park’s Code Supp. 1922, §§ 828 (uu-4).

The preponderance of the evidence before the industrial commission tended to show that Carroll approached the crossing at a speed of about 50 miles per hour, although one witness testified that the automobile was “going slow” at the time it was struck by the train. The commission, however, made no finding of fact as to the speed at which Carroll was traveling or as to the control of his vehicle except that in each respect he was violating the law. Upon this finding of fact, it was held, as a matter of law, that compensation should be denied.

The authority for this ruling was thought to be contained in section 14 of the compensation act (Ga. L. 1920, p. 167 et seq.; Park’s Code Supp. 1922, § 3154(n)), in which it is provided, among other things, that no compensation shall be allowed for injury or death due to an employee’s wilful misconduct, or to his wilful failure or refusal to perform any duty required by statute, the burden of proof being upon him who claims an exemption or forfeiture under this section. Assuming, without deciding, that “misconduct” as referred to in this section was intended to include the violation of a general penal statute, and that the “duty required by statute,” as mentioned in the same connection, may embrace the common duty of every person to observe and not to violate the law, rather than that these terms, so far as they may pertain to the laws of the State, were intended to have reference only to such statutory rules and regulations as may relate to the conduct of those engaged in a particular line of business, we are nevertheless of the opinion that the mere infraction of any such .general penal statute would not, without more, authorize a denial of compensation. Section 14 contemplates more than a mere violation of a criminal traffic law, and more than a simple failure or refusal to perform a duty required by statute. In each case the act or omission on the part of the employee must at least be “wilful,” and this is a matter of proof not necessarily inhering in the evidence of the transgression itself. The term “wilful” is defined by Webster, as, obstinate, stubborn, inflexible, perverse, or governed by will without yielding to reason. The word as used in the criminal statutes has been variously said to mean, “with bad purpose,” “an evil intent,” “maliciously,” “without ground for believing the act .to be lawful.” Other definitions might be added. King v. State, 103 Ga. 263 (30 S. E. 30); Hateley v. State, 118 Ga. 79 (2) (44 S. E. 852); Black v. State, 3 Ga. App. 297 (59 S. E. 823) ; Kendall v. State, 9 Ga. App. 794 (2) (72 S. E. 164); Potter v. United States, 155 U. S. 438 (15 Sup. Ct. 144, 39 L. ed. 214).

The violation of a criminal law enjoining upon individuals or the' public a duty of diligence will, of course, amount to negligence where it results in injury to the person or property of another, but contributory negligence by an employee is not a ground for defeating compensation under the workmen’s compensation act. Besides, “wilful misconduct” or “wilful failure or refusal to perform a duty required'by statute” means something more than mere negligence. These terms as used in the compensation act contemplate the intentional doing of something with knowledge that it is likely to result in serious injury, or with wanton and reckless disregard to its probable consequences. Further than this no precise or comprehensive definition is necessary or will be attempted in the present case. It seems, however, that no act or omission on the part of the employee should be classified as wilful “unless the evidence indicates That entire absence of care which would raise the presumption of conscious indifference,' or that, with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequences of his conduct would be to inflict injury.” Harris v. Reid, 30 Ga. App. 187 (2) (117 S. E. 256).

In Herrington v. State, 121 Ga. 141 (48 S. E..908), an indictment for pointing a pistol was held fatally defective because it did not contain the word “intentional,” in conformity with the statute. Under section 116 of the Penal Code, making it a crime for a father to abandon his child, where he leaves it in a dependent condition, an indictment would be insufficient and bad if it failed to allege that such abandonment was wilful. McDaniel v. Campbell, 78 Ga. 188 (2). So, in a case like the present, compensation should not be denied unless there is evidence, either direct or circumstantial, to show, as an essential ingredient of the defense, the wilful character of the act or omission in question.

Again, in Georgia Ry. & Power Co. v. Reid, 26 Ga. App. 720, 724 (107 S. E. 100), this court held as follows: “One who commits an act of negligence in violating a penal statute in'the State may be called upon to account to the State criminally for the offense, but in so far as injury results to another from such violation the question is simply one of negligence and its proximate results. In other words, where a person violates a penal statute, so far as the individual is concerned, and injury results therefrom, he is guilty of no more than simple negligence, and his offense is not necessarily aggravated by the fact that the negligent act which caused the injury was due to a violation of a penal statute. A tort committed by the violation of a penal statute is not necessarily a greater tort, so far as the injured individual is concerned, than a tort resulting from the failure to exercise such care and diligence as the law requires under the particular facts of the case.” See also Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732).

In Louisville & Nashville R. Co. v. Stafford, 146 Ga. 206 (91 S. E. 29), the Supreme Court said: “The railroad company might be negligent per se in violating the city ordinance and the statute in regard to running trains over public crossings, and the plaintiff might be negligent per se in violating the statute in regard to running automobiles while approaching and crossing railroad-tracks, but it would not necessarily follow that the negligence of the plaintiff would be the proximate cause of the injury, or that it would be as great as that of the defendant, or that the plaintiff by the exercise of ordinary care could have avoided the consequence of the defendant’s negligence after it commenced or became apparent, or the circumstances would have afforded reason to apprehend its existence. The question of negligence and the degree of negligence of the respective parties would be for the jury under the particular facts. The railroad company could be guilty of negligence per se, under the city ordinance, in failing to toll the bell and in running its train over the crossing at a speed slightly over five miles per hour; but the jury could say that it would be guilty of a greater degree of negligence by failing to toll the bell, and in running the train over the crossing at twenty-five or thirty miles per hour. And the plaintiff would be guilty of negligence per se in approaching the crossing at a greater rate of speed than the statute prescribed, but the degree of his negligence would in all cases depend on the circumstances. If there was no train in the vicinity, no danger from disobeying the statute would exist. If not otherwise negligent, his negligence Would consist in disobeying the statute. As the circumstances might enhance the danger his negligence would increase; but whether it should bar a recovery under the circumstances must be left to the jury. So also the time when the negligence of the defendant came into existence and was apparent or should have been apprehended, and whether after it became so the plaintiff by the exercise of ordinary care could have avoided the consequences thereof to himself, were questions for the jury.”

If these principles are applicable in an ordinary suit for damages, they can not reasonably be less so in a case under the workmen’s compensation act. In the one case the negligence of the plaintiff or person injured may amount to a partial or an absolute defense. In the other ease the mere negligence of the employee is immaterial. Critchfield v. Aikin, 33 Ga. App. 668 (2) (127 S. E. 816). It seems to us that the fact that the employee was violating a statute should be regarded only as a circumstance to be considered with the other facts and circumstances in determining whether he was guilty of wilful misconduct.

If this were not the law, then, as was well suggested by counsel . for the plaintiff in error, the violation of the most trivial governmental regulation might result in barring compensation upon a claim otherwise entirely meritorious. Certainly an employee should not go uncompensated merely because his injury resulted from such a minor offense as “jay-walking” contrary to municipal ordinance. Forfeitures are not favored, and valuable rights existing under a contract of employment should not be held lost solely because the employee was killed or injured while violating some criminal law having no specific reference to his own particular line of business, and intended simply to regulate the conduct of the general public as to travel upon the highways. Roby v. Newton, 121 Ga. 679, 683 (49 S. E. 694, 68 L. R. A. 601).

A number of decisions have been cited by counsel for the defendant in error. These, were relied upon in the very lucid opinion of Commissioner Norman, in which he held that the death was not compensable. Fournier v. Androscoggin Mills, 120 Me. 236 (113 Atl. 270, 23 A. L. R. 1156); Fortin v. Beaver Coal Co., 217 Mich. 508 (187 N. W. 352, 23 A. L. R. 1153); Fidelity & Deposit Co. v. Industrial Accident Commission, 171 Cal. 728 (154 Pac. 834, L. R. A. 1916D, 903) ; Moore v. Donally, 1 A. C. (Eng.) 329.

We are unable to' distinguish the case of Fidelity & Deposit Co. v. Industrial Accident Commission, supra, from the case at bar. Whether this should be true also as to the other eases cited, we are not content to follow them to the extent of denying compensation in the present case. Compare Clem v. Chalmers Motor Co., 178 Mich. 340 (144 N. W. 848, L. R. A. 1916A, 352); Estler v. Phillips, 91 L. J. K. B. N. S. 470 (23 A. L. R. 1148); Wick v. Gunn, 66 Okla. 316 (169 Pac. 1087, 4 A. L. R. 107); Alexander v. Industrial Commission, 281 Ill. 201 (117 N. E. 1040); Union Colliery Co. v. Industrial Commission, 298 Ill. 561 (132 N. E. 208, 23 A. L. R. 1150). We cited Fidelity & Deposit Co. v. Industrial Accident Commission, supra, in our decision in New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 687 (118 S. E. 786), but in that connection we did not commit ourselves to the soundness of the rulings made in that case.

The claim for compensation should not be refused upon the theory that Carroll, in the violation of the statute, severed his relation as an employee. Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. R. 250); Fielder v. Davison, 139 Ga. 509 (77 S. E. 618). The decedent was not outside the sphere of his employment at the time of the accident. He was doing nothing that was prohibited by either his employer or the State, but was doing a permitted act in a prohibited manner. He was thus in the course of his employment. See Fortin v. Beaver Coal Co., supra. Nothing contrary to the views herein expressed was held by the Supreme Court in Metropolitan Casualty Co. v. Kuhn, 165 Ga. 667 (7, 8) (142 S. E. 121).

In what has been said above we have had in mind that the statute violated was in its nature a general one, not having been enacted to control the conduct of those engaged in the particular kind of business in which the decedent was employed, but to regulate the conduct of the public in general; that its violation amounted only to a misdemeanor, and that the things prohibited were not morally wrong.' Such being the case, our decision is intended to be limited accordingly. What we should rule under other circumstances is another bridge, to be crossed only when it is reached.

The industrial commission erred in holding in effect that merely because Carroll was killed in the violation of a criminal statute his dependents were not entitled to compensation. It follows that the superior court should have sustained the claimant’s appeal.

Judgment reversed.

J enhins, P. J., and Stephens, J., concur.

ON MOTION FOR REHEARING.

Bell, J.

Tire motion for a rehearing is based upon a number of grounds, but the chief complaint seems to be that in that part of our decision in which we held that the industrial commission made no finding of fact as to the speed at which the employee was traveling or as to his, control of the vehicle, except that in each respect he was violating the law, we placed too narrow a construction upon the findings and conclusions of that tribunal. The movant’s contention is, in substance, that the commission predicated its ultimate conclusion upon the combined facts of the case, and that its denial of compensation was tantamount to a finding from all the evidence that the employee was guilty of wilful misconduct within the meaning of section 14 of the compensation act. While we may have been incorrect in stating that the commission made no findings of fact other than those indicated above, we remain unchanged in our opinion that compensation was denied merely because the industrial commission entertained the view that the act of the employee in violating the law constituted within itself such wilful misconduct as to defeat the claim, irrespective of any other facts which the commission may have found to exist. From the findings made and from the opinion delivered in connection therewith, we continue to think that the commission deemed such transgression to be the governing factor, and either excluded all other facts from consideration or (what was the same thing) treated them as unnecessary in establishing the defense.

Without proceeding to any lengthy discussion, we may say a few words in support of this interpretation of the commission’s action. After briefly stating the case and setting forth the nature of the defense made, the commission said: “This defense raises two questions, — one of fact and one of law. First, did Carroll’s death result from a violation of said statute? Second, if it did, does such act bar his dependents from compensation?” Then follows an opinion containing two divisions, devoted respectively to answering the questions thus propounded. The first division concludes with this statement: “A careful consideration of the evidence and all the facts and circumstances impels the finding that Carroll did not have his car under control as contemplated by the statute, and that his speed in approaching the crossing was considerably in excess of ten miles per hour. It must also be held that the failure of Carroll to observe the statutory requirements in approaching a railroad crossing was the proximate cause of his death.” The second division begins with the following question: “Does the fact that Carroll met his death while violating the statute regulating the speed and manner of approaching a railroad crossing bar his dependents from compensation?” It is apparent that the question which the commission then proposed to answer was whether the mere fact that the employee was violating, the law should be controlling and operate to bar compensation. The argument which followed was obviously intended to sustain the affirmative of this question, concluding with this statement: “Under the facts in this case and the plain terms of the statute, it is the opinion of the commissioner that no recovery can be had. Compensation is therefore denied.” If we considered only the final statement in each division of the commission’s opinion, or considered both statements together, without examining the opinion as a whole, it might possibly be inferred that the commission’s finding that the decedent was guilty of wilful misconduct was an inference which it had drawn from all the facts and circumstances; but we can not so interpret the award when we consider all that the commission said in rendering it. We still think that the commission intended to hold, and did hold, that the mere violation of the penal statute constituted wilful misconduct in the sense of the compensation act, and we also adhere to the view as formerly expressed that such is not the law applicable to a case of this sort.

Upon the legal question involved the following cases, as at least analogous, may be cited, in addition'to the authorities referred to in our original opinion: Southern Railway Co. v. Davis, 132 Ga. 812 (3) (65 S. E. 131); Savannah Electric Co. v. Jackson, 132 Ga. 559 (64 S. E. 680) ; Chattanooga &c. R. Co. v. Liddell, 85 Ga. 482 (5) (11 S. E. 853, 21 Am. St. R. 169); Lanier v. Bugg, 32 Ga. App. 294 (3) (123 S. E. 145). In the Davis case the plaintiff brought suit to recover damages for injuries alleged to have been caused by certain acts of the railway company committed in violation of the public-crossing law. After verdict for the plaintiff the Supreme Court, in holding that there was no evidence to authorize an'instruction upon the subject of punitive damages, said: “There must be something more than the mere proof of failure to give a statutory signal or make a stop required by a statute in approaching a crossing. There must be affirmative evidence of facts tending to show wilfulness, wantonness, or the existence of particular circumstances from which an inference of a conscious indifference to consequences might legitimately be drawn. And these facts must be shown in addition to the mere omission to give statutory signals or'take statutory precautions in approaching crossings. If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence.” See also, in this connection, Ely v. O’Dell, 146 Wash. 667 (264 Pac. 715, 57 A. L. R. 151). In that case it was held that an injury caused by an automobilist while driving a car in a manner prohibited by municipal ordinance is not within the provision of the bankruptcy act denying discharge from liabilities arising from wilful and malicious injuries to the person and property of another. The decision contains a discussion, with a citation of authorities, and has, as we think, some relevancy, in the present inquiry.

Rehearing denied.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18818.
    STANDARD ACCIDENT INSURANCE CO. et al. v. PARDUE.
    Decided December 14, 1928.
    Rehearing denied February 21, 1929.

      Gumming & Harper, James 8. Bussey Jr., for plaintiffs in error.

      Peebles & Bowden, contra.
   Bell, J.

This was a case before the industrial commission. William Pardue, an employee of Tompkins Motor Company, of Augusta, Georgia, was killed while traveling in an automobile in South Carolina. His widow’s claim for compensation having been allowed by the commission and an appeal by the employer and insurance carrier having been denied by the superior court, they brought the case to this court. Pardue was an automobile salesman, and was sent by his employer into South Carolina for the purpose of demonstrating an automobile to a prospective purchaser. While carrying out this order, his car was wrecked on a public highway in that State, with the result that he was injured and died within a few hours. It was claimed by the plaintiffs in error,— the employer and the insurance carrier, — that his death was due to his own wilful misconduct, or to a failure to perform a duty imposed by statute, in that he lost his life as the result of violating the following penal statute of the State of South Carolina: “No person shall operate any vehicle on the public roads of this State at a rate of speed greater than is reasonable and proper at the time and place, having regard to the traffic and use of the highway and its condition, or so as to endanger the life, limb, or property of any person, or in any event at a greater rate than is shown in the following tabulation: (a) Passenger vehicles — not exceeding thirty-five miles per hour on rural roads, and not exceeding twenty miles per hour where the board of county commissioners or other authority in charge of any road shall cause to be placed conspicuous signs so limiting said speed.”

It appeared from the evidence that Pardue was driving the automobile at a speed of 45 to 50 miles per hour down a steep hill, about 75 yards long, when the car swerved to an embankment upon one side of the road and then suddenly to the embankment upon the opposite side, these embankments being at least 30 feet apart, and that after reaching the bottom of the hill it ran off the road and was wrecked. It struck “each bank at least once”; “when it hit the bank the first time the car swerved over to the other side.” The witnesses who testified to the above facts were travelers upon the highway and were meeting Pardue. They were unable to explain why the automobile swerved, unless Pardue lost control of it in some way. Whether this was merely because of the speed at which he was running, or had been running, at the time he came in sight does not appear. There was no direct evidence to show that the automobile was not in good order. Commissioner Land, who heard the case and who rendered the decision for the industrial commission, said: “The fact that the car which he was driving was swerving from one side of the road to the other when coming down a hill and finally turning over, killing him, strongly establishes my conviction that the deceased was not speeding, but was standing by a wild car, rendered uncontrollable by a defect in the steering-gear or other part of the machinery,” and the commissioner accordingly found that the death of the employee was not due to any wilful misconduct on his part. We think this finding of the commissioner was fully warranted by the evidence. That a car in the hands of a supposedly competent driver and running at a speed of not more than 45 or 50 miles per hour should make such movements and take such a course was a circumstance so unusual as to furnish some evidence of defective machinery as the cause, and, in the absence of anything to the contrary, to authorize the inference deduced by the commissioner as stated above. Findings of fact made by the industrial commission are final, and can not be reviewed either in the superior court or in this court if supported by any evidence. Robertson v. Ætna Life Ins. Co., 37 Co,. App. 703 (4) (141 S. E. 504).

Furthermore, even if the automobile was not defective, and if the employee lost control of it because he was running it at a speed prohibited by law, this fact alone would not bar compensation; and there was no evidence in this case to show any wilful act or omission on the part of the employee. The mere violation by an employee of a criminal traffic law is not ground for denying compensation, in ease of his injury or death resulting therefrom. We have gone more fully into this question in another case which we are to-day deciding (Carroll v. Ætna Life Ins. Co., 39 Ga. App. 78), and it is unnecessary to repeat here what is said in that case.

The plaintiffs in error contended also that the decedent’s death was due to his intoxication, but the evidence was overwhelmingly against this contention.

Judgment affirmed.

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


author: Luke, J.

text:
    19114.
    LONGINO v. BENNETT, superintendent of banks.
    Decided January 15, 1929.

      Troutman & Troutman, for plaintiff in error.

      C. N. Davie, J. P. Kemp, O. A. Park, contra.
   Luke, J.

T. R. Bennett, as State superintendent’of banks, issued an execution for $500 against J. H. Longino as the owner of stock in the defunct Farmers & Traders Bank. When the execution was levied on certain realty as the property of Longino he set up by affidavit of illegality the following defense: “Deponent was not on.October 14, 1926, or at the time of the failure of said Farmers & Merchants Bank of Atlanta, or at any time during the period of more than one year prior to the failure of said bank, a. stockholder of said bank. This fact was known to said bank, whose knowledge was acquired by J. R. Smith, vice-president of said bank, and, on information and belief, the change was recognized by said bank. For more than two years prior to the failure of said bank, deponent received no notice of any stockholders’ meetings of said bank, nor was he otherwise recognized by said bank as a stockholder therein.” Since counsel insist only on the foregoing contention, the other grounds of illegality .are not for the consideration of this court.

On the submission of the case to the judge upon an agreed statement of facts, the court adjudged that the levy proceed, and Longino excepted to the judgment.

The agreed statement of facts is substantially as follows: In 1920 J. H. Longino owned five shares of stock of the par value of $100 each in the Farmers & Traders Bank, a banking corporation organized in 1900 under the laws of Georgia. L. T. Carter was cashier and a director of the bank in 1923, and held these positions until April 1, 1925. In the spring of 1923, Longino told Carter that he desired to sell the said stock, and asked him if he knew of a prospective purchaser. Carter told Longino that he might try J. R. Smith, who was vice-president, and director of said bank. Longino saw Smith and sold him the said five shares of stock at $125 per share, “and in writing, according to the form printed thereon, transferred to said J. R. Smith the certificate evidencing the shares. Said form of transfer signed by Longino gave a power of attorney in blank to make the transfer on the books of the bank. Payment was made by Smith by a check, payable to Longino and drawn on said Farmers & Traders Bank. Said Carter saw the check when it was presented to said bank for payment; and shortly thereafter, said Carter was informed by Paul J. Baker, who was then a vice-president and director of said Farmers & Traders Bank, that J. R. Smith had purchased the five shares of stock from Longino. Garter, from these facts, knew and understood that Longino had sold said shares of stock to Smith. Said J. R. Smith was one of the organizers of said bank. He was a director of said bank from the date of its organization until his death in 1926. He was vice-president thereof continuously during the years 1922, 1923, 1924, 1925 and 1926. The certificate was never transferred on the books of the bank. Longino’s name appeared on the books of the bank as a stockholder, owning five shares, from 1920 until the date of the closing of the bank. He never received any notices of any stockholders’ meeting of the bank during said period. The by-laws of the bank provide that the annual meeting should be held on the first Tuesday in September of each year. But they were never held on that date. For the first few years of its existence the bank held its annual stockholders’ meetings in November or December. But in the last ten or twelve years before it closed, these meetings were held in June and July of each year. When he sold the said stock to Smith, Longino thought said bank was solvent, and so did Carter and Smith. None of said officers had any knowledge or notice of any impairment of the capital of said bank. The sale was bona fide and for value. J. R. Smith died in 1926, after said bank had closed. His estate is insolvent. Longino gave no notice, written or verbal, except as above stated, to the bank that he had transferred his stock to J. R. Smith, nor did he make any request that the stock be transferred.” The bank closed its doors on July 13, 1926, and the superintendent of banks took charge of its assets. Notice of assessment was regularly issued to all stockholders, including Longino. The execution was issued against Longino on October 14, 1926.

Counsel for the plaintiff in error concisely state the question at issue, in this language: “So the simple question is whether or not Longino gave to the bank written notice of the transfer. And reduced further, the question is whether the check of Smith given in payment for the purchase-price of the stock was, under the circumstances, a sufficient notice to accomplish the exemption provided in the statute.”

We quote sections 3 and 4 of article 18 of the banking act of 1919 (Ga. L. 1919, p. 190; Park’s Code Supp. 1922, § 2279 (c) : “Sec. 3. Whenever a stockholder in any bank is individually liable under the charter, and shall transfer his stock, and have such transfer entered upon the books of the bank or give to the bank written notice thereof, he shall be exempt from such liability by such transfer, unless such bank shall fail within six months from the date of the entry of such transfer, or from the delivery of such notice to the bank. See. 4. The stockholder in whose name the capital stock stands upon the books of such bank at the date of its failure, shall be primarily liable to respond upon such individual liability; but upon proof made that any stockholder at the date of the failure is insolvent, recourse may be had against the person from whom such insolvent stockholder received his stock, if within a period of six months prior to the date of the failure of such bank.”

We quote briefly from the agreed statement of facts: '“The certificate was never transferred on the books of the bank. Longino’s name appeared on the books of the bank as a stockholder owning five shares, from 1920 until the date of the closing of the bank. . . Longino gave no.notice, written or verbal, except as above stated, to the bank that he had transferred his stock to J. It. Smith, nor did he make any request that the stock be transferred.” Clearly Longino is without the law unless the peculiar facts of the case bring him within it. Do thej? We think not. The legislators provided just two ways by which a stockholder transfering his stock can relieve himself from liability: (1) by having the transfer entered on the books of the bank, and (2) by giving written notice of the transfer. Longino did not have the transfer of his stock entered on the books of the bank. Indeed, he did not even try to do so. The check was not of itself written notice to the bank of the transfer of the stock; and granting that the check was given and cashed under the circumstances shown by the agreed statement of facts,' and that certain bank officials knew that the stock had been sold to Smith, still the requirement of the statute as to notice was not met. In 20 E. C. L., p. 343, sec. 4, this general rule as to notice is stated: “Where a specified mode of giving notice is prescribed by statute that method is exclusive.” This rule has been followed in this State. “Yerbal requests, however urgent and frequent, by a surety to a creditor, to take action to collect the debt from the principal debtor, will not relieve the surety. To avail the surety, the request or notice to the creditor to collect the debt out of the principal debtor must be in writing and in conformity to the statute on that subject.” Brown v. Bell, 37 Ga. App. 818 (2), 819 (142 S. E. 201), and cases cited. In short, the question here is not whether the bank had notice of the transfer, but whether Longino exempted himself from liability by complying with the statute. In Candler v. Molley, 37 Ga. App. 259 (139 S. E. 732), this court applied the rule of strict construction to the very statute we are considering, as follows: “Where a stockholder in a bank, individually liable under the charter, transfers his stock, but fails to have the transfer entered upon the books of the bank, and fails to give to the bank written notice thereof, as provided by the banking act, he is not exempt from liability.”

Granting that the case quoted differs from the case at bar in that in tbe former the official of the bank was acting in his private capacity in dealing with Candler, who sold him the bank stock, and that Baker’s knowledge was not attributable to the bank (Peoples Bank v. Exchange Bank, 116 Ga. 820 (3), 43 S. E. 269), while, in the case at bar two other officials of the bank besides the purchaser of the stock knew of the sale, yet the statute provides for no such notice, and such notice does not satisfy its.plain requirements. The rule stated in the Candler case, supra, applies to this case, and that statement of the rule is made the headnote of this opinion.

The court did not err in finding against the affidavit of illegality and ordering that the levy proceed.

Judgment affirmed.

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


text:
    19122.
    EARLEY v. SERVWELL SALES CORPORATION.
    Decided January 15, 1929.

      R. Terry, for plaintiff in error. Neill & McGee, contra.
   Luke, J.

T. J. Earley filed an affidavit of illegality to the foreclosure of a retention-of-title sale-contract on certain personal property by Servwell Sales Corporation. Earley’s defenses were non est factum, payment, and failure of the plaintiff to pay the costs in a former foreclosure proceeding of the same paper in a justice’s court after the proceeding had been dismissed. The jury found a verdict for the plaintiff, and the defendant excepted upon the general grounds and two special grounds.

Under the evidence the'jury had the right to find against the plea of non est factum, and were authorized to render a verdict for the plaintiff.

Special ground 1, complaining of the admission of certain evidence over the objection that it was “irrelevant, illegal, and immaterial,” presents nothing for consideration by this court. Staples v. State, 37 Ga. App. 97 (3) (139 S. E. 94); Manning v. State, 33 Ga. App. 610 (9) (127 S. E. 475); Hayes v. State, 36 Ga. App. 669 (137 S. E. 860). Aside from this, however, this ground presents no reversible error.

Special ground 2 is that there was no right of action in the plaintiff, because the contract foreclosed showed that it had been “sold and assigned to Appliance Finance Corporation” for value. The plaintiff had possession of the contract, and had the right to foreclose it notwithstanding the written assignment thereon. This phase of the case is controlled in principle by the decision in Leiiner v. Miller, 49 Ga. 486 (2), in which it was held: “Although plaintiff’s name may be on the back of the note sued on, he may recover against the maker, as the law will presume, in the absence of proof to the contrary, that an indorsement by him was never completed by delivery, or if he had delivered it so indorsed, that he had taken it up, and was again the legal holder or indorsee.” See also Bolton v. Duncan, 61 Ga. 104; Bomar v. Equitable Mortgage Co., 111 Ga. 143 (36 S. E. 601).

The contention that the present foreclosure could- not proceed, because costs had not been paid in a previous foreclosure of the same paper in a justice’s court, was not supported by the evidence, and was not referred to in counsel’s brief. Evidently there is no merit in it.

The evidence supports the verdict, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19130.
    CENTRAL OF GEORGIA RAILWAY CO. v. SHIPPEY & BROTHER.

      Decided January 15, 1929.

      Little, Powell, Smith & Goldstein, William M. Matthews, for plaintiff in .error.

      J. K. Jordan, contra.
   Luke, J.

J. K. Shippey & Brother, a partnership composed of J. K. Shippey and T. J. Lokey, brought an action against the Central of Georgia Railway Company for damage to certain hogs in course of shipment. After evidence had been introduced, the court directed a verdict for the railway company. A motion for a new trial was sustained, and the defendant excepted.

The petition contained two counts, the first based on the Civil Code (1910), § 2777, and the second on the common law. If a verdict was not demanded for the carrier on both of the two counts, the court erred in directing a verdict for it, and the grant of a new trial was not error.

The bills of lading, representing six cars of hogs, were issued by Central of Georgia Railway Company at Blakely, Ga., to Metcalfe Live Stock Company, each shipment being consigned to “J. K. Shippey & Bro., Atlanta, Ga.” Bills of lading for two other cars of hogs were issued to H. L. Wingate at Arlington, Ga., the shipments being consigned to him at Albany, Ga.; but the bills of lading were indorsed, “diverted to J. K. Shippey & Bro., Atlanta, Ga.” The bills of lading contained these words: “Duplicate original. Not negotiable.”

J. K. Shippey & Brother were commission dealers in live stock. They would sell stock for others, deduct their commissions and any advances made by them, and remit the balance to their customers. In the present case the shipper attached to the bills of lading drafts on J. K. Shippey & Brother for advances amounting to several thousand dollars. These drafts were paid by J. K. Shippey & Brother in Atlanta the day after the hogs had been delivered to them by the railway company. The consignees paid also the freight on each shipment. The hogs were delivered to the carrier in good condition, but when they were delivered to the consignees in Atlanta, several of them were dead and others damaged.

Section 2777 of the Civil Code (1910), which is a codification of the act of 1906 (Ga. L. 1906, p. 102), is as follows: “Any common carrier, railroad, or transportation company, receiving property for transportation between points wholly within this State, shall issue a receipt or bill of lading therefor, and shall be liable to the holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability herein imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” The language of the statute is clear, unequivocal, and comprehensive. It was enacted in conformity with the Carmack amendment (Healh v. Sandersville B. Co., 23 Ga. App. 255, 98 S. E. 92), and, indeed, is in the very words of that amendment, except in so far as its verbiage is changed to make it apply to intrastate shipments.

It has been held that where the seller in interstate commerce ships merchandise to his own order, and a through bill of lading providing that the purchaser be notified is attached to a draft for the value of the shipment, and the purchaser pays the draft, secures the bill of lading, and takes possession of the shipment, the purchaser, as holder of the bill of lading, may maintain an action for damages against the last connecting carrier where an injury to the shipment has been caused by the negligence of the carrier before the purchaser acquired title to the shipment. A. C. L. R. Co. v. Murray, 162 Ga. 589 (134 S. E. 171), based on Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 769 (93 S. E. 537), So. Ry. Co. v. Morris, 147 Ga. 739 (95 S. E. 384), and Penn. R. Co. v. Olivet, 343 U. S. 574 (37 Sup. Ct. 468, 61 L. ed. 908).

Though the Murray case, supra, involved an interstate shipment, it would appear to be excellent persuasive authority in construing section 3777, supra. It is contended, however, that Shippey & Brother could not recover, for the reason that they had no title or interest in the hogs at the time they were damaged, and the case of Delgado Mills v. Ga. R. &c. Co., 144 Ga. 175 (86 S. E. 550), was cited to sustain this contention. The case cited was a common-law action, differing widely from the case at bar in its facts, and the decision therein does not in principle control the statutory count in the present action. Our conclusion is that under the facts of the case at bar, the consignee, as the holder of the bill of lading, had the right to sue under the statute, and that the evidence did not demand a verdict for the railway company on the first count.

Since our ruling upon the first count of the petition sustains the judgment of the trial court granting the motion for a new trial, and the case will be for trial again, we shall not determine whether or not a verdict for the carrier was demanded on the common-law count of the petition. We are of the opinion, however, that the law of Georgia controlling the second count is correctly stated in the case of So. Ry. Co. v. Miko, 136 Ga. 273 and 274 (71 S. E. 241, 36 L. R. A. (N. S.) 68), as follows: “The consignee of property delivered by another to a common carrier for shipment is presumed to be the owner, and presumptively a right of action exists in his favor for any injury or damage to the property in transit; but the presumption that the consignee is the owner may be rebutted, and where it appears that the consignee has no general or special property in the goods shipped, and incurs no risk in their being transported, he can not maintain an action ex delicto for the loss of, or for any damage to the property.” See also Allen v. So. Ry. Co., 33 Ga. App. 209 (126 S. E. 733), and 4 R. C. L. 942, 398, where the foregoing rule is stated. See also Grinnell-Collins Co. v. Illinois Central R. Co., 109 Minn. 513 (124 N. W. 377, 26 L. R. A. (N. S.) 437), where the Minnesota Supreme Court held that: Where property is consigned to a commission merchant for sale, without any previous contract or any advances made to the shipper, the consignee acquires no general or special ownership in the property before its delivery to him, and can not maintain an action to recover for damage to the property in transit. Of course, it would have to appear that the consignee was legally interested in the property at the time the injury thereto was committed. Civil Code (1910), § 5517; Delgado Mills v. Ga. R. &c. Co., 144 Ga. 175 (86 S. E. 550).

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    19136.
    ALABAMA GREAT SOUTHERN RAILROAD CO. v. CAPELEY et al.

    Decided January 15, 1929.

      McClure, Hale S McClure, Maddox, Maddox S Mitchell, for plaintiff in error.
   Luke, J.

The plaintiffs in the court below obtained verdict and judgment against the railroad company for the alleged negligent-killing of a dog. The defendant assigns error on the overruling of its motion for a new trial which, was based on the general grounds and on a special ground attacking an excerpt from the charge of the court.

1. The court did not err in charging the jury that the plaintiffs “are entitled to recover upon showing that the injury was occasioned by the killing of the dog described in the petition, and by the negligence described therein.” This instruction, when considered in connection with the instruction of the court which immediately preceded it, was entirely fair to the defendant company.

2. The evidence shows that the dog ran on the defendant company’s track on a curve, on the fireman’s side, and about a hundred feet in front of the train which was carrying sixty cars and running thirty miles au hour on a little down grade; that as soon as the fireman saw the dog he “hollered to the engineer;” that the engineer' was looking ahead and saw the dog as soon as he could have seen it; that he did not see the dog until he was within fifty feet of it and going at the rate and with the load named above; that the engineer “opened up his cylinder cock and reached up for the whistle cord, but before he could blow the whistle the engine had run over and killed the dog.” This evidence is uncontradicted, and it shows that it was psysically impossible to avoid killing the dog. “By two witnesses who knew the facts with absolute certainty, the presumption of negligence was fully overcome; and apart from the presumption, there was no proof whatever of negligence. Consequently, the verdict was without evidence to support it,” and the court erred in overruling the motion for a new trial. Savannah, Florida & Western Ry. Co. v. McConnell, 94 Ga. 352 (21 S. E. 568); Macon & Birmingham R. Co. v. Revis, 119 Ga. 332 (46 S. E. 418); South Carolina & Georgia R. Co. v. Powell, 108 Ga. 437 (33 S. E. 994); Georgia Southern & Florida Ry. Co. v. Thompson, 111 Ga. 731 (36 S. E. 945); Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1), 556 (37 S. E. 863); Central of Georgia Ry. Co. v. O’Neal, 11 Ga. App. 461 (75 S. E. 674).

Judgment reversed.

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


author: Broyles, C. J.

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

1. Under tlie ruling of the Supreme Court in this case, handed down on December 11, 1928 (167 Ga. 451, 146 S. E. 27) the rules of the Supreme Court and of this court, providing that where a judge refuses to certify a bill of exceptions, the party tendering the same, if he desires a mandamus nisi to be directed to the judge, must file his application by petition to the reviewing court within twenty days after the refusal of the judge to certify the bill of exceptions, or he will not be heard, are in conflict with the statute, now embodied in section 6159 of the Civil Code of 1910, which provides that the party tendering the bill of exceptions can “apply at the next term” of the reviewing court and then on petition obtain a mandamus nisi, directed to the judge; and that the statute must prevail. Under this ruling, the former judgment of this court in this case (38 Ga. App. 453, 144 S. E. 147), refusing to grant a mandamus nisi upon the ground that the application therefor was not filed until after the expiration of twenty days following the refusal of the judge to certify the bill of exceptions, is hereby vacated.

Decided January 15, 1929.

Aldine & Hewitt W. Chambers, for the applicant.

2. The trial judge refused to certify the hill of exceptions on the ground that it embraced matter which ih his opinion was unnecessary and irrelevant, and he returned the bill of exceptions, within ten days, to counsel for the plaintiff in error, with his objections to the same in writing. Counsel did not attempt to meet and remove the objections, but presented to this court a petition for manadmus to require the signing of the bill of exceptions by the judge. Upon a consideration . of the .bill of exceptions tendered to the judge, this court is of the opinion that it contained unnecessary and ’ irrelevant matter, and that the trial judge properly declined to sign it. See, in this connection, Civil Code (1910), § 6158; Little v. Sparks, 112 Ga. 220 (37 S. E. 364) ; Planters &e. Association v. DeLoach, 113 Ga. 802, 807 (39 S. E. 466).

Mandamus nisi denied.

Luke and Bloodworth, JJ., concur.


author:
Per Curiam.
      Luke, J.

text:
    19225.
    MITCHELL v. THE STATE.
    Decided January 15, 1929.

      R. D. Feagin, C. D. Irwin, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Per Curiam.

1. The evidence amply authorized, if it did not demand, the verdict, and the court did not err in overruling the general grounds of the motion for a new trial.

2. Having been charged with murder and convicted of involuntary manslaughter, the defendant can not complain of alleged errors in the court’s charge upon the law of murder. Jordan v. State, 22 Ga. 545 (9) ; Goss v. State, 14 Ga. App. 402 (2) (81 S. E. 247) ; Thompson v. State, 24 Ga. App. 144 (2) (99 S. E. 891) ; Nichols v. State, 35 Ga. App. 399 (2-a) (133 S. E. 266).

3. When the entire charge is considered in the light of the facts of the case, the jury were' clearly informed by the court that the defendant would not be guilty unless she was under a legal duty to care for and protect the infant. Moreover, under the undisputed evidence a finding was demanded that the defendant, the great-grandmother of the infant, was under such duty; and, even if the charge was error, the error was harmless.

4. The other special grounds are without merit, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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

Luke, J.

The indictment in this case charged Ann Mitchell and Anri ip. Jane Dawson jointly with murdering the newly-born, illegitimate infant of said Annie Jane Dawson, by “neglect and mistreatment,” in order to conceal the fact that the child was born, in that, “ directly after the birth of said infant, it was allowed to fall to the floor, and was otherwise beaten and bruised” by said parties, and that, “shortly after its birth, it was subjected to exposure by said accused . . . , who placed said infant, naked and unwashed, in a coarse sack, and deposited it on the wet ground in an outhouse on the premises of Ann Mitchell, at whose residence said baby was born;” and that said infant.died on March 13, 1928, as a result of said mistreatment and neglect. The jury found the defendants guilty of involuntary manslaughter, with a penalty of three years. Ann Mitchell filed a motion for a new trial, based upon general grounds and six special exceptions to the charge of the court.

Without attempting to state the evidence in the case, it might be well to say that Ann Mitchell was the grandmother of Annie Jane Dawson; that the latter was single and sixteen years of age when her child was born; that Annie Jane’s mother was living a short distance from Ann Mitchell’s house, but that the child was born at the home of the latter; and that the infant died about a day and a half after its birth.

Special ground 4 complains of the following excerpt from the charge of the court: “If you do not believe the death of the infant was due to the wilful omission of the grandmother’s duty to preserve and protect the life of the infant, but you do believe beyond a' reasonable doubt the grandmother is guilty of neglect, though not wilful and malicious, and without intending to destroy the life of the child, and such negligence did not naturally tend to destroy the life of the infant, and the infant died, the grandmother would not be guilty of murder, but would be guilty of involuntary manslaughter in the commission of an unlawful act, and it would be your duty to so find.”

I think this excerpt is subject to the objection that it strongly raises the implication that Ann Mitchell would be guilty of involuntary manslaughter for mere neglect of the infant, irrespectively of whether or not she was under a legal duty to care for and protect it. The following language appears in the case of Lewis v. State, 72 Ga. 164 (1) : “-Death ensuing in consequence of the wilful omission of a duty is murder; death ensuing in consequence of the negligent omission of a duty is manslaughter.” Ann Mitchell’s legal responsibility for the death of the infant, in so far as negligence on her part is concerned, can only be predicated upon a breach of legal duty on her part to protect and care for it. If there was no duty, there was no breach. I think the excerpt under consideration violates the law in the respect indicated, and was, for that reason, reversible error.

I have studied carefully the charge of the court to ascertain if the error indicated was cured by other instructions, and have concluded that it was not. I reach this conclusion notwithstanding the fact that the court charged the jury in substance that if they believed Ann Mitchell assumed the control and care of the infant, and was in duty bound to preserve and protect its life, they might find her guilty of murder if the infant died in consequence of a wilful omission on her part to perform such duty; and notwithstanding the instruction towards the end of the charge that neither defendant would be guilty of any offense if the jury determined “there had been no omission of duty, or acts of commission directed maliciously against the life of the child.”

I do not concur with my associates in their conclusion that the undisputed evidence demanded a finding that Ann Mitchell was under a legal duty to care for and protect the infant. I think the court committed reversible error in overruling special ground 4 of the amendment to the motion for a new trial. Therefore I dissent from the ruling announced in paragraph 3 of the majority opinion. I dissent also from the first paragraph in so far as it indicates that the evidence demanded the verdict.


text:
    19237.
    TAYLOR et at. v. STATE.
    Decided January 15, 1929.

      Homer L. Causey, for plaintiffs in error.

      A. B. Spence, solicitor-general, T. B. Cress, contra.
   Luke, J.

Lester Taylor and Albert Music were convicted of the larceny of two turkey-hens and two gobblers belonging to D. I. Bigdon. The defendants’ motion for a new trial, based upon the general and two special grounds, was overruled, and they excepted.

It appears from the testimony of the State’s witnesses that Bigdon missed his turkeys, and, upon investigation, found that the defendants had sold four turkeys to W. B. Taylor, who, in turn, sold them to G. W. Taylor; that Bigdon then inquired of G. W. Taylor, and found in his possession a turkey-hen and two gobblers answering the description of Bigdon’s turkeys, and they were turned over to Bigdon; that Taylor thought it likely that the other turkey-hen had been shipped off to market; and that when Lester Taylor’s attention was called to the matter he said that he and Music, the other defendant, “would pay for the turkeys and not have it in court.”

The defendants admitted selling four turkeys to W. B. Taylor, but maintained that Mrs. Mary Jane Music, the mother of Albert Music and the mother-in-law of Lester Taylor, and with whom the defendants lived, formerly had turkeys that strayed off and took up in the woods; that they were told that turkeys had been seen on an island about a mile and a half from Mrs. Music’s home; and that, thinking these turkeys were the offspring of Mrs. Music’s turkeys, they captured and sold them.

Lester Taylor, one of the defendants, sworn as a witness for his codefendant Albert Music, told how the turkeys were caught, in these words: “We had spotted these turkeys, and knew where they roosted, by the signs under the trees and under the limbs, and on Saturday afternoon late we went over there to where they roosted, and they flew up on limbs about twelve or fifteen feet high, and we waited over there in the bushes and trees, and, after they got in the trees, . . we slipped up under them and caught the.four with wires. I had a flash-light in one hand, and shined it up on them, and they did not fly, — that is the four we got did not fly, but after we got them there were a few more that did fly. I continued to hold the flash-light in one hand, and I had two wires with a hook on the end, and Albert had two wires with a hook on them just bent down to make a hook on the wire, and we slipped those up to the turkey’s legs, and pulled four of them down at one time. They were rather wild turkeys, but we did catch them. We carried them to Mrs. Music’s house, and put them in a crib and fed them until we carried them away on Tuesday. . . This sure happened, and it happened on Saturday night before the Monday they accuse Albert and myself of stealing Dan Rigdon’s turkeys. It was about dark, or hardly good dark, when we caught these turkeys out of the trees.”

The jury, of course, had the right to say what was the truth of the transaction, and, since there is evidence to sustain the verdict, the court did not err in overuling the general grounds of the motion for a new trial.

In the first special ground complaint is made that the court erred in refusing to declare a mistrial because the solicitor-general, in addressing-the jury, said: “Lester Taylor, this witness, is a monumental liar, and I want to introduce him at the next liar’s convention:” it being urged at the time that this statement was improper, and not warranted by the evidence or the law. Generally, “remarks of counsel while addressing the jury, which do not undertake to introduce any material fact not disclosed by the evidence, do not constitute a sufficient ground for declaring a mistrial.” Tanner v. State, 164 Ga. 490 (1) (139 S. E. 5). That decision is based on the decision in W. & A. R. Co. v. York, 128 Ga. 687 (58 S. E. 183), which cites the following pertinent cases: W. & A. R. Co. v. Cox, 115 Ga. 719 (42 S. E. 74); Patterson v. State, 124 Ga. 409 (52 S. E. 534); Taylor v. State, 121 Ga. 354 (7) (49 S. E. 303); McNabb v. Lockhart, 18 Ga. 507. The decision in Ivey v. State, 113 Ga. 1062 (39 S. E. 423, 54 L. R. A. 959), cited by counsel for the plaintiffs in error, is a well-considered decision, but the reversal therein was based upon the proposition that the solicitor-general, in his address to the jury, used “highly improper language not authorized by the evidence or any fair deduction therefrom.” “Counsel in discussing the credibility of a witness to the jury, may refer to the witness as a person of bad character, where there is evidence to that effect. Thomas v. State, 90 Ga. 437 (2) (16 S. E. 94). In the case of Haupt v. State, 108 Ga. 53 (34 S. E. 313), the solicitor-general referred to the defendant as “a self-confessed thief.” There the court said: “While counsel should be confined to the evidence in the case, and should not be permitted to indulge in abusive epithets of the person on trial, at the same time the field of legitimate argument is not circumscribed by any rule which forbids counsel to draw conclusions from the evidence and in plain words to characterize the conduct of the accused. As to whether the evidence supports such a characterization, neither this court nor any other ought to stop to inquire. Counsel for the accused will almost certainly put a different interpretation on evidence tending to show facts from which guilt may be inferred than that placed on the same evidence by the State’s counsel; and so long as the latter remains within the domain of construction as distinguished from unwarranted abuse, he is not to be restrained. It is just as legitimate for the solicitor-general to say to the jury that from the facts proved the defendant is a confessed thief as it is for counsel for the accused to say to the jury that the facts demonstrate that the accused is an innocent and much-wronged man. Both . are conclusions. Neither may be right. Each is within the legitimate limits of argument. While the language used by the solicitor-general appears to be harsh, it was, in view of the evidence, legitimate.”

In this case the solicitor-general could have expressed his disbelief in Lester Taylor’s testimony in language more temperate and better suited to the occasion, but it certainly can not be said that counsel’s conclusion, though harshly expressed, was entirely unsupported by the evidence. Indeed, the solicitor-general had as much right to conclude from the evidence that Taylor’s version of the manner in which he and his codefendant came by the turkeys was false, as counsel for the defendants had to urge that it was true. Applying the law to the facts of this case, the trial judge did not err in refusing to declare a mistrial because of the remarks of State’s counsel; and there was no error in overruling this special ground of the motion for a new trial. The other special ground is similar to the one just considered, and is without merit.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    19253.'
    HART v. LITTLE.
    Decided January 15, 1929.

      Ben M. Turnipseed, for plaintiff.

      E. B. King, for defendant.
   Bloodworth, J.

In connection with the headnotes the following will dispose of the entire case: Edward E. Hart, doing business under the name and style of “National Engraving Company,” brought suit against W. N. Little, doing business under the name of “Eort Gaines Garage,” on an account for newspaper cuts, reading matter, and postage. The items of the account were each for $2.03, and were dated weekly from and including August 14, 1925, to October, 1926; which, together with an extra charge of seven cents for postage, made the total amount of the account $127.96. There were credits for payments which amounted to $75.18, reducing the actual amount sued for to $52.78. The defendant denied liability and pleaded: “That in March and April, 1926, the service given by plaintiff to the defendant became very unsatisfactory, and defendant asked plaintiff to cancel the contract and terminate their business relations; that afterwards, on the 8th day of May, defendant sent to plaintiff a check for $8.12, being all the amount defendant claimed that he owed plaintiff; that defendant sent said check as a full accord and satisfaction between the parties, and so marked on said check, which was accepted and collected by plaintiff.” Oh appeal to the superior court the jury returned a verdict for the defendant. A motion for a new trial was made by the plaintiff, and, this being overnled, a bill of exceptions was filed. On the trial the plaintiff introduced in evidence an instrument in writing signed by the defendant in error, which the plaintiff claimed was a contract between him and the defendant, and under which the cuts and reading matter sued for were furnished, and also introduced evidence that the cuts and reading matter were shipped weekly by parcel post to defendant. The defendant swore that “This contract recited -that the National Engraving Company was to send me cuts and reading matter weekly for a period of one year. These cuts and the reading matter was to be given to the newspaper every week by me for publication. They sent these cuts and reading matter out weekly for several months, and I paid the bills promptly. Then they commenced to skip a week, and I did not receive the cuts each week, and then they would send cuts for two weeks at one time. I made complaint to them and wrote them about it. I then paid them up in full through the month of April, 1926, and sent them a check for what I owed, and wrote on the check the words ‘In full.’ I stopped payment then because I had settled with them, as they did not send out the matter weekly as they agreed to do in the contract. I sent this check dated May 8, 1926, for $8.12, payable to the National Engraving Company, and drawn on the Union Savings Bank of Ft. Gaines, Ga. This check had on the left hand corner these words: ‘Eor in full.’” On this issue of fact the jury had the right to believe the evidence for the defendant, which successfully rebutted the presumption that the defendant did receive the cuts and reading matter, which arose from the evidence that these articles had been properly addressed, stamped and mailed. Parker v. Southern Ruralist, 15 Ga. App. 334 (83 S. E. 158); Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (102 S. E. 358); Hamilton v. Stewart, 108 Ga. 476 (34 S. E. 123). Moreover, the check marked “in full” was introduced in evidence, and it was indorsed by plaintiff and marked “paid” by the bank upon which it was drawn. Where the aggregate amount due on an indebtedness is in dispute, and the debtor tenders a sum as to which he is willing to concede a liability, on condition that it is accepted in full settlement, the creditor, if he would not acknowledge settlement in full, “must decline the tender and not retain and use the money, check, or other thing of value offered in full settlement.” Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 521 (61 S. E. 1134), and cases cited. See also Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 (1), 86 (84 S. E. 834); Donalson v. Norman, 14 Ga. App. 191 (1), 192 (2) (80 S. E. 679). Under the facts of this case and the principles announced in the foregoing decisions, it is clear that the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    19255.
    Heath v. Philpot.
    Decided January 15, 1929.

      Lon Lamar Fleming, Pierce Brothers, for plaintiff in error.
   Luke, J.

It appearing from tire petition as amended tlrat tlie agreement declared upon was entered into between husband and wife to promote a dissolution of their marriage, the court erred in overruling a demurrer based upon the ground that the agreement was contrary to public' policy and void. See Sumner v. Sumner, 121 Ga. 1 (3) (48 S. E. 727) ; Birch v. Anthony, 109 Ga. 349 (34 S. E. 561); Don v. Don, 158 Ga. 254 (123 S. E. 268).

■Judgment reversed.

Bloodworth, J., concurs. Broyles, O. J., dissents.


author: Bloodworth, J. Bloodworth, J.

text:
    19256.
    HANSARD v. POOL.
    Decided January 15, 1929.
    Rehearing denied March 2, 1929.

      Wheeler & Kenyon, for plaintiff.

      Vandiviere & Tallmt, H. B. Moss, for defendant.
   Bloodworth, J.

Hnder the provisions of section 20, article 7, of the banking act approved August 16, 1919 (Ga. L. 1919, p. 160), an assessment was made against W. N. Pool Jr., as owner of three shares of stock in the Farmers and Merchants Bank of Cumming, which was then in the hands of the superintendent of banks for liquidation. An execution was issued against said Pool, which was signed “T. R. Bennett, Superintendent of Banks, by E. A. Thompson, Asst. Superintendent of Banks of the State of Georgia,” and it was transferred by the superintendent of banks and levied upon certain realty as the property of Pool. Pool filed an affidavit of illegality, alleging that the execution was proceeding illegally, on certain grounds. The only portion of the affidavit of illegality which is urged in this court by counsel for Pool is that which alleges that the assistant superintendent of banks has no right “to make assessments against or to issue executions against stockholders of insolvent banks.” On the trial of the affidavit of illegality in the superior court counsel for the plaintiff tendered in evidence the execution, and the following objection was urged against it: “We object to the fi. fa. on the ground we don’t consider it a legal fi. fa., because it was issued by T. R. Bennett, Superintended of Banks, by E. A. Thompson. It- doesn’t say assistant, just says something of, banks of the State of Georgia. I can’t read it to see what it is. We don’t see that E. A. Thompson has any right to issue it. • I can’t make out what it is.” After the court had admitted the execution and the transfer thereof, and without the introduction of any other evidence, a verdict was directed in favor of the defendant in fi. fa., Pool.

The execution was ’“fair upon its face,” and, nothing to the contrary appearing, this court will assume that the assessment was properly made. The banking act, supra, section 10, provides for the appointment of an assistant superintendent of banks with authority to perform such duties as may be assigned to him by the superintendent. The affidavit of illegality having stated affirmatively that the assistant superintendent had no authority to issue the execution, the burden was upon the affiant to establish this fact by proof. This he failed to do. See Thompson v. Fain, 139 Ga. 310 (2), 312 (77 S. E. 166), and cit.; Doerflinger v. Nelson, 76 Ga. 101(a); James v. Edward Thompson Co., 17 Ga. App. 578 (2) (8-7 S. E. 842). The principles announced in Deariso v. Mobley, 38 Ga. App. 313 (2, 3, 4) (143 S. E. 915), axe applicable to this case.

The court erred in directing a verdict for the defendant in fi. fa.

Judgment reversed.

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

ON MOTION ROE REHEARING.

Bloodworth, J.

A motion for rehearing was made in this case on the ground that the court overlooked the ruling and judgment of the Supreme Court in the case of Horton v. State, 112 Ga. 27 (37 S. E. 100), and the case of McCaskill v. Chattahoochee Fertilizer Co., 167 Ga. 802 (146 S. E. 830), upon the only point involved in the instant case, and that had the ruling of this court been kept within the rulings of the Supreme Court, the result in this case would have been different and the judgment of the trial court would have been affirmed.

The case of Horton v. State, supra, is by its facts clearly differentiated from the case under consideration. In McCaskill v. Chattahoochee Fertilizer Co., supra, a rehearing was granted, and in its final determination of that case the Supreme Court held: “Under the act of 1919 (Ga. L. 1919, p. 135 et seq.), creating the department of banking, etc., it is the duty of the superintendent of banks to take charge of the assets and business of insolvent banks and make an assessment upon the stockholders of such bank, and, if any stockholder notified shall fail or refuse, after notice, to pay such assessment within thirty days, to issue execution for the amount of such assessment, etc. The signing of an execution under the act of 1919, supra, is a clerical or ministerial act which can be delegated by the superintendent of banks. Properly construed, the act is broad enough in its terms to authorize the superintendent oí banks to appoint an assistant superintendent of banks, or agent, to perform such duties as shall be assigned him by the superintendent. The superintendent can delegate to such assistant, ox agent, the duty of issuing and signing executions in pursuance of assessments made by the superintendent. This authority may be exercised by signing such executions in his own official capacity, or by the agent affixing to them the official signature of the superintendent of banks and adding the word 'by/ and then adding his own official signature. . . The main act of assessment was done by the State superintendent of banks himself, and the act of issuing the execution was done by the assistant superintendent as a ministerial or clerical act, which would not render the execution void.”

Rehearing denied.

Broyles, G. J., concurs. Lulce, J., absent.


text:
    19266.
    SEABOARD AIR-LINE RAILWAY COMPANY v. D'AVIGNON.

      Decided January 15, 1929.

      W. W. Dylces, for plaintiff in error.

      J. A. Hixon, Hollis Fort, contra.
   Luke, J.

Carl Hammond D’Avignon brought action for damages against the Seaboard Air-Line Kailway Company to the March, 1927, term of the city court of Americus. The original petition did not allege generally, or set out facts to show, that he was proceeding under the Federal employer’s liability act; but on December, 3, 1927, an amendment was allowed alleging that the defendant’s train in question was engaged in interstate commerce at the time the plaintiff was injured, and that the defendant had violated the safety-appliance act of Congress. The jury rendered a verdict for the plaintiff in the sum of $12,000, and the railway company excepted to the judgment overruling its motion for a new trial, based upon the general grounds and seventeen special grounds.

1. Special grounds 1 and 2 of the motion for a new trial are without merit. The trial judge in his discretion may allow leading questions to be propounded to a witness, and unless that discretion is abused, an allowance of leading questions is not ground for a new trial. Higdon v. Williamson, 140 Ga. 187 (3) (78 S. E. 767). The answers to the questions propounded-were not merely conclusions of the witnesses.

2. The 3d special ground complains of the admission of certain • evidence. The only objection made to the evidence was that it was “immaterial.” Under repeated rulings of this court such a ground raises no question for the consideration of the reviewing court.

3. The 4th special ground is not complete and understandable within itself.

4. The 5th special ground (complaining of the sustaining of objections made to certain questions propounded to a witness) is without merit. The objections were that the questions were leading and argumentative, and the court properly sustained the objections.

5. Grounds 7, 8, and 9 are merely elaborations of the general grounds.

6. No evidence was adduced showing that the defendant’s train in question was engaged in interstate commerce at the time the injuries sued for were inflicted, and the court erred in charging as set forth in grounds 11, 12, and 13.

(a) The failure of the defendant to answer the allegations of the amendment to the petition (averring that the defendant was engaged in interstate commerce) did not authorize either the court or the jury to treat the allegations as true. Brown v. A., B. & A. R. Co., 131 Ga. 259 (62 S. E. 186); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874).

7. There is merit in ground 10 of the motion. Upon the next trial the charge should accord more precisely with the allegations of the petition as to the manner in which the plaintiff was injured.

8. Under the evidence in the case the court did not err in instructing the jury that the engineer of the train which the plaintiff was firing was the alter ego of the defendant and that the plaintiff was subject to his directions.

9. Grounds 15, 16, and 17 (complaining of the refusal’to give certain requested instructions) raise no question for the consideration of this court, since it does not affirmatively appear that the requests to charge were presented to the court before the jury had retired to consider their verdict. Averments that a “written timely request” was made, or that a request was made in writing “in ample time for the court to read and consider it,” or that “movant requested the court to give said charge to the jury in ample time,” are mere conclusions of the pleader and do. not come up to the rule. Keese v. Mize, 27 Ga. App. 666 (4) (110 S. E. 417); Dixon v. Sol Loeb Co., 31 Ga. App. 165 (12) (120 S. E. 131).

10. As the case must-be retried, the questions as'to whether the evidence authorized a recovery for the plaintiff, and whether the verdict is excessive, are not now passed upon.

11. For the reasons stated above, the court erred in refusing to grant a new trial.

Judgment reversed.

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


text:
    19375.
    VANN *. THE STATE.
    Decided January 15, 1929.

      M. B. Súbanles, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
   Luke, J.

The defendant was ponvicted of the offense of assault with intent to murder, and excepted to the overruling of his motion for a new trial.

Two of the special grounds of the motion complain of the court’s failure to charge. By reference to the charge we find that the court instructed the jury fully on the principles referred to in these grounds.

The remaining special ground of the motion objects to the following: The prosecutor was asked: Q. “Did he make any expression that he was going to kill you?” A. “Yes, sir, I don’t know that he said that in the store, but they say he is a man that will kill you.” Counsel for the movant objected and asked for a mistrial. The court addressed the jury as follows: “Gentlemen of the jury, any testimony of that character you will disregard. It has nothing to do with this case, and you will not consider it.” This instruction of the court was proper and sufficient.

The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodivorih, J., concur.


author: Broyles, O. J.

text:
    19299.
    EFFINGHAM COUNTY v. ZITTROUER.
    Decided January 15, 1929.

      Travis & Travis, for plaintiff in error.

      Ulmer & Dowell, contra.
   Broyles, O. J.

Section 411 of the Civil Code of 1910 provides that claims against counties must be presented within twelve months after they accrue, or the same are barred. The petition in the instant case (asking damages for the total destruction of the value of a tract of land) shows that the injury sued for occurred in 1924 and that the claim was not presented to the county authorities until during the year 1927. The petition, therefore, showed on its face that the claim was barred by the statute of limitations, and the court erred in overruling the oral motion to dismiss the petition.

Judgment reversed.

Dulce and Bloodworth, JJ., concur.


text:
    19303.
    Mitcham v. The State.
    Decided January 15, 1929.
    G. A. Huddleston, N. F. Culpepper, for plaintiff in error.

      J. F. Hatchett, solicitor, contra.
   Bloodworth, J.

The evidence authorized the defendant’s conviction of possessing intoxicating liquors, and the court did not err in refusing a new trial.

Judgment affirmed.

Broyles, G. J., apd Luhe, J., eoneur.


text:
    19305.
    LOVINGER v. THE STATE.
    Decided Januaet 15, 1929.

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

      John A. Boylcin, solicitor-general, J. W. LeOraw, E. A. Stephens, contra.
   Luke, J.

The indictment in this case charged Bailey Lovinger,' Mrs. Bailey Lovinger, E. W. Mitchell, and Albert Smith, with larceny of an automobile belonging to Bennie Clein. The jury trying Bailey Lovinger found him guilty, and fixed his sentence at from one to five years, with a recommendation that he be punished as for a misdemeanor. The motion for a new trial was overruled, and Lovinger excepted.

A case was made out for the State by the evidence of Clein and others, the automobile having been taken from Olein’s place of business in Atlanta, stripped of certain of its parts, and burned. The defendant admitted that he was the moving spirit in taking the automobile, but introduced evidence to sustain his statement that there was no larceny, for the reason that Clein hired him to destroy the car in order that he might collect the insurance on it. Clein denied entering into any such scheme. There was ample evidence to sustain the defense had the jury seen fit to believe it. They accepted Olein’s version of the matter, however, and this court is without power to take from the jury their legal prerogative of passing upon the credibility of witnesses and conflicts in the evidence. The judge did not err in overruling the general grounds of the motion for a new trial.

Special grounds 1, 2, and 3 are controlled by the same principles of law. To avoid repetition, and at the same time make ourselves clear, we shall discuss in detail only the second special ground. It is that the court erred in allowing State’s counsel to ask the defendant’s witness E. W. Mitchell if he had not been arrested and convicted in Fulton county, along with one Cobbler; and in allowing the witness to answer: “I have been arrested in this county, and have been convicted in this county last year, — not along with Cobbler, — by myself;” the testimony being objected to upon the ground that the record of the arrest and conviction of the witness would be the best evidence. This witness previously testified that Clein, the owner of the automobile, had entered into an agreement with the defendant and the witness to destroy the car in order to collect the insurance on it.

In Wheeler v. State, 4 Ga. App. 325 (2) (61 S. E. 409), this language was used: “Only conviction of crime involving moral turpitude serves as a basis for impeaching, or can be held to be ground for discrediting, the testimony of a witness who has been thus convicted; and the proper method of proving that a witness has been convicted of crime is by the record of his trial and conviction.” In Howard v. State, 144 Ga. 169 (2, 2-a) (86 S. E. 540), this language appears: “Where it is sought to discredit a witness on account of his previous conviction of crime, the judgment of the court in which he was convicted is the highest evidence of the fact; and it is error to permit a witness, over objection, to testify as to his conviction for certain offenses. (a) But a witness can not be impeached by showing his conviction of a misdemeanor, it not appearing that the offense was one involving moral turpitude.” In Swain v. State, 151 Ga. 375 (4, 4-a), Justice Atkinson, speaking for the court, said: “The best evidence which exists of the fact sought to be proved must be produced, unless its absence is satisfactorily accounted for Code, § 5748. Where it is material to prove that a witness has been convicted of an offense, the best evidence of that fact is the record of the conviction. Johnson v. State, 48 Ga. 116 (3); Hunter v. State, 133 Ga. 78 (8), 79 (65 S. E. 154); Beach v. State, 138 Ga. 265 (75 S. E. 139); Howard v. State, 144 Ga. 169 (2), 171 (86 S. E. 540). (a) Accordingly, where a witness for the defense, on cross-examination, testified That he had been convicted of cow-stealing at the August term,’ it was erroneous to admit such testimony over the objection that There is higher and better evidence of the fact.’” See also Morgan v. State, 17 Ga. App. 124 (3) (86 S. E. 281); Braxley v. State, 17 Ga. App. 196 (5) (86 S. E. 425),; Phillips v. State, 18 Ga. App. 109 (2) (88 S. E. 905).

Under the foregoing decisions, the court erred in allowing the witness to testify as to his conviction. In the case of Pierce v. State, 29 Ga. App. 68 (113 S. E. 47), this ruling was made: “Refusal to allow counsel for the accused, on cross-examination, to ask a witness how many times he had been in jail, charged with crime, was error, requiring a new trial.” In the case at bar the witness was allowed to testify to his conviction. Of course, even if there be a conflict between the decision in the Pierce case (from which Judge Bloodworth dissented) and the rule followed in this case, we would be bound by the older rule as laid down by the Supreme Court.

The evidence in this case is in sharp conflict, and the witness Mitchell was the witness most strongly relied on by the defendant to prove his contention that there was no larceny in the case. Under these circumstances, we can not say that the error indicated was not harmful. There is nothing in this case that takes it out of the “best-evidence rule,” and the court committed reversible error in overruling this ground of the motion for a new trial. Special grounds 1 and 3 are controlled by the cases cited in this ground.

The fourth and last special ground complains that the court erred in charging the law of admissions, for the reason that such charge was not warranted by the evidence. It is contended that while the defendant admitted taking the automobile, at the same time he stated that he was hired by Clein to take and destroy it, so that the insurance could be collected, and that he made no admission that tended to incriminate him. There is no merit in this exception. “A confession is a voluntary admission of guilt of a criminal offense. An admission, as applied to criminal cases, is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.” Riley v. State, 1 Ga. App. 651 (3), 654. In Fletcher v. State, 90 Ga. 468 (3) (17 S. E. 100), where the court held that the trial judge erred in charging the law of confessions where only admissions were involved, Chief Justice Bleckley used this language: “The accused made no confession of guilt, nor did lie intend to make any. His declarations to the policeman were designed to explain his possession of some of the goods which were in the building immediately preceding the fire, and his knowledge touching the whereabouts of other goods which when found were not in his possession but, like those which were, constituted a part of the property which could be regarded as fruits or probable fruits of the arson. It is evident that' the declarations were made with an exculpatory object, but of course they might have had an inculpatory effect. This would depend upon the view which the jury might take of them in connection with all other facts and circumstances disclosed by the evidence.”

Admissions were made in the case at bar with an “exculpatory object,” but the jury has the right to say whether or not they had an “inculpatory effect,” and the court did not err for the reason assigned in this exception.

Judgment reversed.

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


text:
    19306.
    NORTH v. THE STATE.
    Decided January 15, 1929.

      G. L. Harris, for plaintiff in error.

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

The defendant was convicted of possessing intoxicating liquor, and assigns error on the overruling of his motion for a new trial. The evidence shows that the defendant was riding in a car with one Warren and that whisky was found in the car. by an officer. Warren pleaded guilty to owning the whisky, and was serving his sentence at the time of the trial of the instant case. He testified that the whisky belonged to him, and that the defendant had absolutely nothing to do with the possession or control of it in any way; that the defendant just happened to be riding with him in the ear, and had not touched the liquor or exercised any control over it. The evidence shows that the car belonged to Warren’s wife and Warren was driving it. All the evidence as to the possessing of the liquor by the defendant was circumstantial. The motion for a new trial complains of the court’s failure to charge the degree of circumstantial evidence necessary to convict. Under the particular facts of the case this was error. “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” Penal Code, § 1010. “On the trial of a criminal case, where a conviction depends entirely upon circumstantial evidence, it is the duty of the judge, whether so requested or not, to give in charge to the jury the principles of law by which the weight of the circumstances is to be determined, and under what circumstances a conviction on circumstantial evidence is warranted.” Weaver v. State, 135 Ga. 320 (69 S. E. 489), and cases cited; Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Lewis v. State, 6 Ga. App. 205 (64 S. E. 701).

The court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    19307.
    Josey v. George.
    Decided January 15, 1929.

      TiTlou Von Nunes, Irma Von Nunes, for plaintiff in error.

      H. G. Holbrook, contra.
   Broyles, O. J.

1. “A purchaser of a negotiable note, although with notice of an equity as between the maker and the original payee, is protected in his title, if he purchases the note from one who previously purchased it from the original payee “without notice of any infirmity in the note.” Wade v. Elliott, 11 Ga. App. 646 (2) (75 S. E. 989) ; Weil v. Carswell, 119 Ga. 873 (1) (47 S. E. 217); 8 Corpus Juris, 466, § 685-D.

2. Under the foregoing ruling and the facts of the instant ease, the trial judge properly directed a verdict in favor of the plaintiff.

3. None of the grounds of the motion for a new trial show error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19311.
    Eady-Baker Grocery Co. v. Tennessee Chemical Co.
    Decided January 15, 1929.

      Lovejoy & Mayer, for plaintiff in error.

      Hall & Jones, contra.
   Broyles, C. J.

1. Where a judge of the superior court passes an order permitting a corporation to surrender its charter and be dissolved as a corporation, and also appoints a receiver for the corporation, a creditor of the corporation who was not a party to the receivership proceedings can maintain a suit against the corporation. He is not compelled to bring suit against the receiver. See, in this connection, 2 Park’s Code, § 2823 (b) et seq.; 8 Supplement to Park’s Code, §§ 2246 (a), 2246 (b) ; 34 Cyc. 221; 23 R. C. L. p. 48, § 50; 14 (A) Corpus Juris, 985, § 3326; Citizens Bank v. Hubbard, 70 Ga. 411; Bradford v. Cooledge, 103 Ga. 753 (30 S. E. 579) ; American National Bank v. Robinson, 141 Ga. 78 (80 S. E. 555); Cain v. Seaboard Air-Line Ry., 138 Ga. 96, 100 (74 S. E. 764). The case of Nelson v. Hubbard, 96 Ala. 238 (11 So. 428, 17 L. R. A. 375), cited and relied on by counsel for the plaintiff in error, is not in point, since the statute of Alabama providing for the voluntary dissolution of private corporations stipulates that in the case of any contested claim, the claimant shall file the same in the dissolution proceeding, and that the genuineness of the claim be ascertained as in other contested claims in chancery. There is no such provision in the Georgia statute.

2. Under the foregoing ruling and the facts of this case, the court properly struck the plea in abatement filed by the defendant, and properly directed a verdict in favor of the plaintiff.

Judgment affirmed.

Luke and Bloodworth, JJ., conour.


text:
    19314.
    Daniel Brothers Company v. Richardson.
   Broyles, C. J.

1. “Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Piling a protest at the time of payment does not change the rule.” Civil Code (1910), § 4317.

2. “Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.” Civil Code (19101, § 4116.

Decided January 15, 1929.

3. This was a suit to recover a certain sum of money alleged to have been paid to the defendant by the plaintiff under duress. In such an action facts sufficient to show duress must be set forth in the petition. Carswell v. Hartridge, 55 Ga. 412 (4). In the instant case the petition failed to allege any facts sufficient to show that the payment of the money was made by the plaintiff under circumstances that would amount to duress in law. On the contrary, the petition, construed most strongly against the plaintiff, alleged merely that the defendant threatened a civil action, “and this, of course, is not duress in a legal sense.” Bond v. Kidd, 122 Ga. 812, 813 (50 S. E. 934). See also Strange v. Franklin, 126 Ga. 715 (55 S. E. 943); Mallory v. Royston Bank, 135 Ga. 702 (1), 705 (70 S. E. 586). The case of Fenwick Shipping Co. v. Clarke, 133 Ga. 43 (65 S. E. 140), relied on by counsel for the plaintiff in error, is distinguished by its particular facts from the instant case. In this case the proffered amendment to the petition, either by itself or together with the original petition, did not set forth any facts amounting to duress in a legal sense, and was properly disallowed. The petition was fatally defective, and the court did not err in dismissing it on demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Welborn B. Cody, for plaintiff.

Alston, Alston, Foster & Moise, for defendant.


text:
    19330.
    Pierce v. The State.
    Decided January 15, 1929.

      John L. Wallace, M. B. Eubanks, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Broyles, O. J.

1. The overruling of the demurrer to the accusation was not error. Brooks v. State, 39 Ga. App. 32.

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

Judgment affirmed.

Luke and Bloodworth, J.J., concur.


text:
    19331.
    PHILLIPS v. THE STATE.
    Decided January 15, 1929.

      8. E. Dyer, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, contra.
   Luke, J.

Having been convicted of manufacturing whisky, Frank Phillips filed a motion for a new trial, based solely upon the general grounds. The motion was overruled, and he excepted.

A summary of the evidence upon which the conviction rested follows: On May 15, 1938, the defendant and others were found at a still on an unoccupied place owned by a bank, and located about eight miles from his residence in Newnan. The still was complete except that it had no worm. It was not in operation, but had been recently run. The defendant was daubing mud on the furnace. There were four or five barrels of intoxicating beer at the still, ready to run. The defendant had started to get wood when he was arrested. About ten days later the defendant, Osborn Johnson, Henry Kandall, and Oles Smith were seen at another still, about a mile and a half from the first one. The still was in operation, and some one who looked like the defendant ran off down the branch. The witness Bandall testified that the defendant had hired him to keep a lookout at the still; that the defendant kept a lookout at times himself; and that the defendant furnished meal and sugar for stilling. Johnson testified that the defendant had helped run the second still; that he, the defendant, and others furnished the material to make the whisky; and that they all got some. The defense to one transaction was an alibi. As to the other the defendant contended that he inadvertently came upon the still, and that he had nothing whatever to do with it.

We are well satisfied that the evidence warranted the verdict, and that the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    19330.
    Cumby v. The State.
    Decided January 15, 1929.

      H. C. Strickland, Beall & Beall, for plaintilf in error.

      Bmmett Smith, solicitor, contra.
   Bboyles, C. J.

In misdemeanors all who participate in the criminal act, either as principals or accessories, are guilty as principals; and in misdemeanors the accused can be convicted on the unsupported evidence of an accomplice. Under these rulings and the facts of the instant case the verdict was authorized, and, the finding of the jury having been approved by the trial judge, and there being no complaint of an error of law, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.